Index to Thirteenth Volume.
After this, S. H. & Co. obtained judgment against E. The sheriff, un-
der the senior execution of Royall, advertised for sale the lands lev-
ied upon, including the mortgaged lands, the lands not mortgaged
being ample to satisfy the Royall execution. Before, and at the
time of the sale on the R. execution, L. and M. had purchased and
were the owners of this Royall judgment and execution, and the
mortgagee repeatedly tendered to them, and also to the sheriff, the
amount due thereon, informing them of his mortgage lien, and of
his desire to protect it, which tender was refused. The mortgagee
then requested the sheriff to offer for sale the property levied on
which was not included in the mortgage, or to offer any small frac
tion or subdivision of the property levied on, which the sheriff, un-
der advice of the owner of, and of the defendant in the execution,
refused to do. The sheriff then released from levy considerable
property not mortgaged, and sold it under the C. H. & Co.'s junior
execution, and offered for sale, and sold, against the protest of the
mortgagee, the bulk of the mortgaged property, consisting of several
distinct tracts in bulk, leaving unsold only a small part of the mort-
gaged property, of value entirely insufficient to secure the amount
stated to be due on the mortgage, but sufficient to pay the amount
due on the Royall execution: Held, That it was the duty of the
sheriff to accept the tender of payment by the mortgagee, so that the
mortgagee would not lose his security upon the mortgaged proper-
ty: Held further, That it was the duty of the sheriff to have first
sold the property of the defendant in execution not covered by the
mortgage, and that the sale of the mortgaged property upon the ex-
ecution while there was abundant other property levied on, out of
which the execution could have been satisfied, was a legal fraud
upon the rights of the mortgagee, and the purchaser, then being an
owner of the judgment and execution, and having notice of all the
facts, is not an innocent purchaser. Ritch vs. Eichelberger...
I. If the council of a municipal corporation act within the scope
of their authority in the grading and improving of streets, they are
not liable at common law to an action of trespass or case by the
owner of an adjoining lot, who may be injured by such improve-
Dorman vs. City of Jacksonville....
2. Nor does a provision in the act of incorporation that the coun-
cil must "make to the party injured by an improvement a just com-
pensation," to be ascertained in such manner as is provided in the
act, make the corporation liable to an action for such injury. There
being no right of action at common law, the remedy created by the
Legislature must be pursued.-Ibid....
538
3. A declaration alleging that a city council, "contriving and un-
justly intending to injure, prejudice and aggrieve the plaintiff, and to
Index to Thirteenth Volume.
incommode and annoy him in the occupation and enjoyment of his
property," dug away his sidewalk, destroyed his shade trees, and
created a nuisance in front of his premises, shows a cause of action
at common law, the acts thus charged being in violation of law, and
is not demurrable under the city charter which authorizes the grad-
ing and improving of streets.-Ibid...
I. The circuit judge charged the jury, on the request of counsel
for the State on the trial of an indictment for murder, that, "if the
State proved a deliberate killing, not the mere fact of killing, then
it was for the prisoner to prove that it was not murder, and if he
has failed to do so, you will find the prisoner guilty:" Held, That
this charge was erroneous. It should have been qualified by adding,
in substance, "unless the circumstances showing that the killing
was not murder, or other grade of crime, appeared by the testimony
produced by the prosecutor." Gladden vs. State..
2. The court charged the jury that "when the killing has been
proved, the accused must show that it was attended, with circum-
stances of accident, necessity, or infirmity, to reduce it to a lower
grade of crime," the accused being charged with murder: Held,
That the Court should have added substantially, "unless they arise
out of the evidence produced against him." Without such qualifi-
cation the charge of the Court was erroneous, and calculated to mis-
lead the jury, notwithstanding the Judge may have given the in-
struction correctly in a former portion of the charge. Dixon vs.
State
636
I. The "act for the relief of occupying claimants," approved Jan-
uary 12, 1849, has no application to proceedings under the act rela-
ting to forcible entry and detainer. Mountain vs. Roche.
1. Section 7, and Article V, of the Constitution of this State, pro-
vides that "when any office, from any cause, shall become vacant
and no mode is provided by this Constitution, or by the laws of the
State, for filling such vacancy, the Governor shall have power to fill
such vacancy by granting a commission, which shall expire at the
next election:" Held,
That the power vested in the Governor by this section is not a pow
er to fill any office for the unexpired term; that this power remains
with the people, and that the power here conferred is to provide an
incumbent for the office between the date of the removal or death
of the regular incumbent, and the filling of the office by an election
by the people. State ex rel. Weeks vs. Gamble Comptroller....
That while the Constitution does not fix the precise time for
Index to Thirteenth Volume.
the "next election," yet it is the duty of the authorities to see that
the time of this election is not indefinitely postponed at the expense
of the rights of the people.-Ibid....
3. Where a provision is made by law for the salary of an officer,
the drawing of a warrant by the Comptroller is a ministerial act,
which may be enforced by mandamus, and the court may, in such
proceedings, determine whether the appointment of the officer is
void, where there is no other incumbent of the officer exercising its
functions by color of right.—Ibid.....
4. Where the statute prescribes a particular mode of serving the
process, and that the officer's return shall show the precise manner
of serving, a return stating that the process is "served on the with-
in named party," is not sufficient to authorize the entry of a judg-
ment or decree. The statute must be strictly pursued in such cases,
otherwise the court has not jurisdiction of the person of the party to
be served. Standley vs. Arnow..
1. Held, (by a majority of the court,) that the representatives of a
deceased partner stand in the relation of a creditor of the surviving
partner, who assumes control of the partnership effects, to the ex-
tent of the value of the interest of the deceased partner, after satisfy-
ing the partnership debts; and the doctrine that a voluntary gift or
conveyance or a voluntary post-nuptial settlement by a person in-
debted is prima facie fraudulent as to the creditors of the debtor,
applies as well in behalf of the representatives of the deceased part-
as in behalf of general creditors. Alston et al. vs. Rowles......
2. A bargains and sells to B one-half of a stock of goods not then
in his actual possession. B bargains to pay A one-half of the cost
of the goods, and one-half of the charges incurred and to be incurred
thereon. The cost and charges are to be ascertained at a future
time: Held, That acts remained to be done between buyer and
seller before the sale could be considered complete, and that no pres-
ent right of property passed. In the same instrument containing
the above bargain and sale there was an agreement between the
parties to sell the stock of goods as co-partners: Held, That it was
necessary that a property should pass to the vendee before such
partnership could exist inter se, and that the vendor had a right to
insist upon payment for the goods before the vendee acquired an in-
terest as partner: Held further, That acts which may be attributed
to common courtesy and to the confidence which generally exists be-
tween persons who have agreed to enter into the intimate confiden-
tial relation of partners, should not be held to be a waiver of those
conditions necessary to be performed before that relation is to exist
under contract. Johnston et al. vs. Eichelberger...
Index to Thirteenth Volume.
When a bill in chancery, in the prayer for process, does not
contain the names of the defendants against whom process of sub-
pœna is prayed, as required by Rule 23, (Chancery Rules,) it is de-
murrable, it being a defect in the frame of the bill. Keen et al. vs.
Jordan
When a demurrer to a bill is filed without being accompanied
by certificate of counsel as required by the 31st Chancery Rule, ad-
vantage of the omission should be taken by motion to strike off the
demurrer; but if the parties proceed to a hearing without regarding
the omission, and the questions raised by demurrer are passed upon
by the court, it is too late, upon appeal, to raise the objection. —Ibid. 327
3. A statement in a bill for divorce that the complainant is, and
has been for more than two years, a resident of this State; that the
parties were married at Jacksonville, in this State, in April 1862,
"where the parties have ever since lived," is a full compliance, as to
the pleadings, with the statute, which requires that "it shall appear
that such applicant has resided in the State of Florida for the space
of two years prior to the term of suc application," and is a suffi-
cient allegation of the time of marriage.-Burns vs. Burns.
4. Where a divorce is prayed on the ground that the defendant
"is habitually intemperate," it is not necessary to specify more de-
finitely the facts constituting "habitual intemperance," the charge
of itself implying that the defendant has a persistent habit of becom-
ing intoxicated from the use of strong drinks, and thus rendering
his presence in the marital relation disgusting and intolerable.-Ibid....
5. Where the charge in a bill for divorce is that the defendant
"habitually indulges in violent and ungovernable temper, and is
tremely cruel to his wife," and proceeds to specify that he uses
threatening, blasphemous and abusive language towards her, on
many occasions threatened her with fatal violence, and attempted
to carry his threats into execution, so that she has had to seek safety
in flight; and in an amended bill reiterating these charges, it is al-
leged that the defendant has put and continues to keep complain-
ant in fear of bodily harm from his violence and abuse: Held, That
the defendant having taken direct issue upon these statements, and
proceeded to a final hearing without requiring a more definite speci-
fication of facts, and the allegations appearing to be sufficiently defi-
nite to appraise the defendant of the nature of the facts to be proved
in order to enable him to prepare his defence, and it appearing that
the proofs fully substantiate the charge, a decree of divorce will be
sustained.-Ibid.
369
6. Under the rules of practice in the Circuit Courts, the plea of
not guilty in trover does not put in issue the plaintiff's title to the
goods. Under this plea, defendant cannot introduce evidence in de-
Index to Thirteenth Volume.
nial of property or right of possession in the plaintiff. None of
the statutes of this State have changed this rule. Robinson vs.
Hartridge,
7. The act to amend the pleading and practice of this State adopts
certain forms for particular pleas, and enacts that the forms set forth
shall be sufficient. The effect of the statute is to render the brief
forms sufficient for all the purposes for which the more lengthy
forms were required before the act; but the effect and operation of
the plea is not extended beyond its effect anterior to the statute.—
Ibid.
8. Defendant's counsel, misapprehending the effect of the plea of
the general issue in trover, attempts to introduce, after the plaintiff
has closed his testimony, evidence in denial of the plaintiff's title;
it is objected to, and the objection is sustained; the defendant asks
leave to file a special plea, putting the title in issue: Held, Under
the statutes of this State, that the application to cure the defect is
duly made, and if the question of title is involved in the determina-
tion of the true questions in controversy between the parties anterior
to the trial, it is such an amendment as is authorized by statute,
and made the duty of the court to allow.-Ibid....
9. A declaration alleging that a city council, "contriving and un-
justly intending to injure, prejudice and aggrieve the plaintiff, and
to incommode and annoy him in the occupation and enjoyment of
his property," dug away his sidewalk, destroyed his shade trees,
and created a nuisance in front of his premises, shows a cause of ac-
tion at common law, the acts thus charged being in violation of
law, and is not demurrable under the city charter which authorizes
the grading and improvement of streets. Dorman vs. the City of
Jacksonville
POM
10. Under the rules, a plea of non-assumpsit is not a proper plea
to a declaration upon a promissory note, but when the declaration
contains other counts to which the plea of non-assumpsit is applica-
ble, it is improper to strike out the plea as a nullity unless a nolle
prosequi be entered as to the other counts. The rule that the plea
of non-assumpsit shall not be interposed, relates to suits upon bills
of exchange and promissory notes, where they are the only causes
of action upon which the plaintiff declares. Bemis vs. McKenzie...
A bill in chancery is not necessarily multifarious because it
contains irrelevant or redundant matter. To render a bill multifa-
rious, it must contain two or more good grounds of suit which can-
not be properly joined in the same bill against the same or several
defendants. Ritch vs. Eichelberger et al.
I. Where there has been a suggestion of insolvency filed in the
County Court, and notice calling in creditors, one creditor has an
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