Volume 9 — Florida Reports

This case was decided at Marianna. Appeal from Holmes’ Circuit Court. The opinion of the Court contains a full statement of the facts, to which reference is made.

This case was decided at Marianna. Writ of error to Escambia Circuit Court. The opinion of the Court contains a statement of the facts of the case, 'to which reference is made.

This case was transferred by consent of parties from Jacksonville, and was beard and determined at Marianna, the Hon. J. J. Finley, Circuit Judge, sitting in the place of the Hon. William A. Forward, Associate Justice, wlio was disqualified by reason of having been of Counsel in the Court below. For a statement of the facts of tlie case, reference is made to tlie opinion of tbe Court.

Tbis case was decided at Tallahassee. . Forward, J., read the following statement of the case, prepared by him: The following is a brief statement of this case, as appears by the record: On the 25th day of March, A. D. 1826, a partnership was formed between Thomas Orman, Andrew Young and Rufus Sewall, under the style of Orman & Young, Bewail iei/ng a dormant partner; said partnership was to continue for two years from the Ith March, 1826.

This case was decided at Tallahassee. Appeal from Leon Circuit Court. For tbe facts of tbe case, reference is made to tbe opinion of tbe Court.

Tliis case was decided at Marianna. Appeal from Franklin Circuit Court. The appellant instituted bis action of assumpsit by attachment against the appellee on an order or check, of which the following is a copy, yíz ; St. Joseph, May 17, 1840. President of the L. W. and St. Joseph Bailroad Company will pay to James Black, or order, one hundred and fifty-three dollars, and charge the same to account of Your ob’t serv’t, JOHN D. GBAY.

This case was decided at Tallahassee. Appeal from Madison Circuit Court. .Torwakd, J., who delivered the opinion of the Court, read tlie following statement of tlie facts of tlie case prepared by liimself: The facts of this case, as appears by the record, are thus: On the 7th day of April, A. N. 1854, the said Walters & Walter made and executed a vohmtary deed of assignment in the city of Charleston, in the State of South Carolina, of certain property, real and personal,…

This case was decided at Marianna. Appeal from Jackson Circuit Court.

This case was decided at Tampa. Appeal from Hernando Circuit Court. For a statement of the facts of the case, reference is made Jo the decision of the Court.

This case was decided at Marianna. Writ of error to Jackson Circuit Court. The opinion of the Court contains a statement of the facts of the case, to which reference is made.

<p>A judgment against a garnishee in a suit commenced by attachment is annulled-by the dissolution of the attachment even after plea pleaded.</p>

This case was decided at Marianna. Appeal from Jackson Circuit Court. Tlie plaintiff in error was indicted for tlie offence of rape, alleged to liave been committed upon Susan Leonard, was tried at the October term, 1859, convicted and sentenced to be hanged on the 16th day of December, 1859.

This case was decided at Marianna. Appeal from Escambia Circuit Court. A statement of the case will be found in the opinion of the Court, to which reference is made.

<p>1. An assault with intent to kill is not an offence known to the common law but by statute of this State is made a misdemeanor.</p> <p>2. There is a difference between an assault with intent to kill and an assault with intent to murder. An assault with intent to kill may exist where the party intends only such killing as amounts to manslaughter.</p> <p>S Whether a person indicted for an assault with intent to kill, had such intent a t the time of the alleged assault, is a question of feet for the jury to decide, and in deciding that question the jury ought to act upon those presumptions which are recognized by the law so far as they arc applicable, and the inlent, like malice, may be either expressed, or implied and presumed where facts authorizing the presumption are proven.</p> <p>4. The charge of the Court should be confined to matters in issue. The Court is not bound to instruct the jury, at the defendant’s request, ‘that if H. had killed W., and the homicide would have been manslaughter and not murder, that they ought not to find him guilty of the assault with intent to kill."</p>

Tin* case was decided at Marianna. Writ of error to Santa Rosa Circuit Court. Tlie opinion of the Court contains a statement of the case, to which reference is made.

This case was decided at Marianna. Writ of error to Exanklin Circuit Court. The opinion of the Court contains a statement of the facts connected with the several points decided by the Court, the opinion giving the facts in the order in which the points are decided and sufficiently explaining the same.

This case was decided at Marianna. 'Writ of error to Franklin Circuit Court. The opinion of the Court contains a statement of the case, to which reference is made.

This case was decided at Marianna. Appeal from Escambia Circuit Court. . The appellee instituted an action of indebitatus assi nvpsit ..^gainst the appellant in the Court below. Tlie defendant pleaded non assumpsit and payment. A trial was liad and a verdict rendered in favor of the plaintiff for one thousand dollars, on which judgment was entered.

<p>This case was decided at Marianna.</p> <p>Appeal from Jackson Circuit Court.</p> <p>For a statement of the facts as presented by the record, reference is made to the opinion of the Court.</p>

Tliis case was decided at Marianna. Writ of error to Santa Rosa Circtiit Court. The appellees instituted suit in the Court below against the appellant, on a promisory note for three hundred dollars, dated 15th of June, 1850. A mortgage was given to secure the payment of the note, -which was filed with the note, and on which was endorsed a credit for eighty-eight 90-100 dollars on the 16th June, 1850. The defendant pleaded first, payment in full; second, set off.

This case was decided at Marianna. Appeal from Santa Rosa Circuit Court- On the 26th Sept. 1855, Moore brought an action of assumpsit against Judge on a promissory note, of which the following is a copy, viz : Oil or before the first day of January next, I promise to pay John S. Moore, or hearer, three hundred dollars, value received. January 23, 1851. WM. JUDGE.

'Tins case ivas decided at Marianna. ’This was an action of Assumpsit, upon warrant of soundness of a slave sold by said Giles to the said Kendig, tried 'in the Circuit Court of the county of Santa Rosa. The count in the declaration relied upon is in the following words, viz: “Santa Rosa County, to wit: Barnard Kendig (the plaintiff in this suit,) who sues for the use of II.

<p>1. An executor or administrator under the proviso of the 34th section of the Act regulating judical proceedings, approved Nov. 33,1838, may deny the signature of his testator or intestate to any bond, note, or other instrument purporting to have been signed by him, and also plead a want or failure of consideration by plea put in without being sworn to, and after the cause is called on the appearance docket, on giving reasonable notice, and the effect of such plea will be the same as at Common Law, that is, to require the plaintiff to prove the signature, and the defendant to prove the want or failure of consideration.</p> <p>3. If the executor or administrator desires to throw the onus of proving the consideration on the plaintiff, he must put in his pleas under oath before the cause is called on the appearance docket.</p>

This case whs decided at Marianna. Appeal from Calhoun Circuit Court. The opinion of the Court contains as tatement of the facts, to which reference is made.

This case was decided at Tallahassee. Appeal from Leon Circuit- Court. This was an action of assumpsit, instituted to recover the instalments of stock subscribed for by Johnson, the appellant. The defendant pleaded non-assumpsit, upon which issue was joined, and under this plea it was agreed that all substantial defences should be admissible.

<p>1. In this State, all decrees in Chancery, whether Interlocutory or Final, are not only by the practice of our Courts, but by Statutory provision, deemed to be enrolled when entered upon the minutes of the Court.</p> <p>2. A decree directing a reference to a master for the purpose of ascertaining any material fact in the ease, is not a final decree, although it ascertains and determines all the equities of the case.</p> <p>3. A Bill of Review lies only after final decree, and not upon an Interlocutory Decree. A Bill in nature of Bill of review, is not of use in this State, as all decrees are enrolled when entered upon the minutes of the Court.</p> <p>4. After an Interlocutory Decree is enrolled, the Court will grant leave to file a Supplemental Bill, to bring forward newly discovered evidence, and grant a rehearing upon the same if the evidence is of such a nature, as were it a Bill of Review, would entitle the party to relief.</p> <p>5. To entitle the party to relief in such eases, the newly discovered evidence must he relevant and material, and such as might probably have produced a different determination. The new matter must have first come to the knowledge of the party after the decree. The matter must not only he new, hut it must be such, as the party by the use of reasonable diligence, could not have known; it must not he merely cumulative, nor merely corroborative or auxiliary to what is already in the case, but must establish a new fact of itself, decisive of the merits of the cause.</p> <p>6. With Administrators who are strangers to the transaction, and who have to look after evidence to defend the Estate, the same stringency in ruling as to knowledge of facts, ought not be exercised.</p> <p>7. On application for leave to file a Supplement Bill, and fot a re-liearing, the Appellate Court can only consider the prior Interlocutory Decree, so far as to ascertain and enquire whether the new matter sought to be introduced is relevant and material, and such as tad the same been before the Chancellor, might probably have produced a different determination.</p>

This case was decided at Tallahassee. The bill sets forth that the Apalachicola Company, being proprietors of a large tract of land, proceeded in the year 183(5 to lay out a town on the tract known as the City of Apalachicola, then already having considerable population and a large and growing trade and commerce.

<p>This case was decided at Tallahassee.</p> <p>The facts in the case are set forth in the opinion of the Court.</p>

<p>1. Relief will be granted in equity against a judgment at law when tlie defence could not at the time, or under the circumstances, be made available at law, without any laches of the party.</p> <p>2. So, if a fact material to the merits should he discovered after a trial, wbicli could not, hy ordinary diligence, llave b een discovered before, the like relief will be g'ranted.</p>

This case was decided at Tallahassee. Appeal from Madison Circuit Court. This was an action of ejectment instituted by tlie defendant in error to recover of tlie plaintiff in error the premises described in the declaration.

This cause was argued at March Term, 1860, at Marianna; was held under advisement by the Court, and by agreement of counsel the opinion of the Court was delivered at Tallahassee at January Term, 1861.

<p>This case was decided at Jacksonville.</p>

This case was decided at Jacksonville. The Grand Jury brought into Court and presented a bill of indictment against the said Warrock, endorsed on the back thereof, “Assault with intent to kill — a true bill. ” In the body of the indictment there were two counts, one of which reads as follows, viz : “ That Ludowick Warrock, late of the county of Duval, laborer, on the twenty-eighth day of May, in the year of our Lord one thousand eight hundred and fifty nine, with force and…

This case was decided at Jacksonville. Appeal from the Circuit Court of Nassau County. The opinion of the Court contains a sufficient statement oí the facts of the case.

<p>1. An indictment will lie against a trespasser on the public lands of the State of Florida under the act of January 13th, 1849.</p> <p>2. Counsel have the right to embody, in their motions to quash or in arrest, what statements they please, but no Court can regard such statements as evidence.</p> <p>3. The proper way to get facts before an appellate Court, in such form as to render them evidence, is to make a statement of them in the shape of a Dill oí exceptions, and then get the Circuit Judge to sign and seal it and order it to-be made a part of the record.</p> <p>4. An indictment will not be quashed except for something appearing in the indictment itself.</p>

This case was decided at Jacksonville. The following statement of the case was prepared by the Justice who delivered the opinion : The bill in this cause is filed by the administrators of’ Amos L. Dell, deceased, against the executor of the last will and testament of Bennett M. Dell, deceased. Amos L. Dell, was a son of the said testator, and one of the beneficiaries-named in his will.

<p>1. Neither land nor slaves will pass in this State by nuncupative will.</p> <p>2. The 51st section of the act of 1828, on the subject of last wills and testaments, is to be taken to be restrictive in its operation, and intended to confine the testamentary disposition of both land and slaves, to wills in writing.</p> <p>8. Where a testator, by nuncupative will, gives to his executor all of his estate, both real and personal, in trust, for the payment of debts, and the balance tó be distributed to certain named legatees, if the devise and bequest of the land and slaves should fail, he will hold such of the chattel interests as do pass by the will subject to the payment of the debts of the estate, and not as a specific legacy.</p>

This case was decided at Tallahassee, A full statement of the ease, and the evidence therein, will be found in the opinion of the Court.

This case was decided at Jacksonville. The statement contained in the opinion of the Court is sufficient for the understanding of the points therein decided.

<p>X. Where a party applies in a civil suit for a continuance for the term on the ground of the absence of a witness, it must be shown by affidavit that the witness has been duly served with a subpcena, or a satisfactory reason assigned for the omission; that he is absent without the consent of the party, directly or indirectly given; that he resides in the county where the suit is pending, or if out of the county, good cause must be shown for not talcing his deposition ; that the testimony is material; that the applicant expects to procure said testimony at the next term; that the application is not made for delay only; that he cannot safely proceed to trial without the evidence of said witness ; and the party must further state the facts expected to be proved by said witness.</p> <p>2. It is not error for the Court to refuse to allow a motion for the continuance of the cause, where the affidavit in support of it does not come up to the above rule.</p> <p>3. A party need not set forth the very words of a note in the declaration; he may, if he chooses, set forth what he considers the substance and legal effect of the note in this respect, and where ho professes to give the legal effect and operation of the instrument declared on, and he does not mistake the legal effect, there is no variance.</p> <p>4. Where the promise is to pay interest from day, in a promissory note, it draws interest from the date thereof, and an averment “ with interest from date,” gives the true legal effect and operation of the instrument.</p> <p>5. The rule of law briefly expressed is, that “ parol contemporaneous evidence is inadmissible to contradict, or vary the terms of a valid written instrument.’! Under this rule, all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed or afterwards, is rejected.</p> <p>6. Parol evidence is sometimes admissible where the language of the instrument is applicable to several persons, to several species of goods and chattels, &c., or the terms be vague and general, &e.</p> <p>7. In a written bill of sale of cattle, where the marks and brands of the cattle are expressed, the maxim, “ expreuio unius est exetusio alterius, ” (the express mention of one thing implies the exclusion of another,) is applicable. The presumption is, that having expressed the marks and brands of some, they have expressed all which they intended.</p> <p>8. The plaintiff in the Court below having read to the jury a promissory note, with a credit endorsed thereon, it is to be taken as an admission of the plaintiff that the credit should be allowed.</p> <p>9. The Circuit Court, on a motion for new trial on the ground the jury have given excessive damages, should look into the evidence and see whether the damages are excessive, and if so, either grant a new trial, or grant a new trial unless within a time to be fixed by them, the plaintiff remit so much as shall reduce them to the true sum.</p>

<p>’Where the record fails to show that a final judgment had been entered in the Court below, the appeal will be dismissed.</p>

This case was heard at Marianna, and decided at Tallahassee. A full statement of the case is contained in the opinion of the Court.’

<p>1. The Supreme Court will always reverse a judgment in a criminal clise' where it shall appear that the Judge charged the jury upon the ease but did not reduce his charge to writing, and file it in the case, according to the 8th section of the Act of January 4, 1848.</p> <p>2. The record stated that the prisoner was led into Court by the Sheriff* “ whereupon came a jury, &c., who being duly chosen, tried and sWorn, after hearing the evidence and argument of cdiihsel, and under charge of the Court, retired to consult of their verdict,” &e : Held that this language does not fnrnish evidence that the Judge charged the jury within the meanihg of the above act.</p> <p>8. Remarks by the Judge to the jury touching their behavior on' retiring to consult of their verdict, as that they shall not speak to any one of suffer any one to speak to them, do not constitute'a charge within the meaning of said act.</p> <p>4; The Circuit Jiiclge must be presumed to have dOhe his duty in the absence of pi-oof to thtí eonii-afy.</p>

<p>1. Although the drawer has no funds in the hands of the drawee, yet if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if h.e has a right to expect the bill to be accepted by the drawee in consequence of an agreement or arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party to the bill, then in every such case he is entitled to strict notice of the dishonor.</p> <p>3. An agent is entitled to notice of the dishonor of his bill on his principal, though he had no funds in the principal’s hands, and tin payee had no knowledge that he was acting as agent.</p> <p>3, The payee of every draft or Mil takes it upon the implied condition that he is not to hold the drawer liable without giving him notice of the draft or bill he dishonored, and if each notice be not given, it is at the peril of the payee.</p>

<p>1. Wliere the-pleadings are in-such a defective condition as to make it- manifest that the jury who tried the cause could not have had an intelligent appreherc sion of the issues to be tried, the judgment will be reversed, and the cause-remanded for a new trial.</p> <p>2. The Supreme Court will not consent to sit as an arbitrator between the parties to a cause brought up by appeal or writ of error. ■ ' - '</p>

This case was argued at Marianna and decided at Tallahassee. The following statement of the case was prepared by the Judge who delivered the opinion of the Court: John Ammons, the appellant, was indicted at the Fall Term, 1858, of the Circuit Court of Holmes county, for the murder of one Samuel McQuage.