DECISIONS OF THE Supreme Court of Florida, JANUARY TERM, A. D. 1877. J. S. DUPIUS, PLAINTIFF IN ERROR, VS. J. J. THOMPSON, Defendant in ERROR. 1. Pleading over after judgment upon demurrer, and taking issue upon or replying to the pleading, is a waiver of the demurrer. 2. The entry of the grounds of a motion for new trial upon the motion docket, is a filing of the reasons for such motion with the Clerk as required by the statute. 3. The rules of practice of the Circuit Court require notice of a motion for new trial, and where the party fails to give such notice, the court may properly refuse to consider the motion. 4. A motion for new trial is not a waiver of exceptions, and if for any reason such motion cannot be considered in this court, and the exceptions during the trial are properly embodied in the record, we can review the rulings of the Circuit Court in this respect. As to this matter the case then stands substantially in the same attitude that it would have been before the statute authorizing a review by this court of the rulings of the Circuit Court upon a motion for new trial. 5. After a deed has been offered and read in evidence to the jury without objection, and the party offering it in evidence has closed, it is too late to insist upon the formal proof of its execution. 6. Where a charge embraces several distinct propositions, a general excep. tion to the charge is not available if any one of the propositions is correct. 7. The legal presumption is that an officer does his duty when acting under a general power, such as a sale under fi. fa. A party claiming under a sheriff's deed of this character, need not prove the advertisement when he puts in evidence the judgment, the execution, the Dupuis v. Thompson-Opinion of Court. levy, the return of the sheriff, and his deed reciting due and legal advertisement and sale. Writ of error to Circuit Court for Alachua county. The opinion of the court contains a sufficient statement of the facts of the case. S. Y. Finley and O. A. Myers for Plaintiff in Error. Thomas F. King for Defendant in Error. MR. JUSTICE WESTCOTT delivered the opinion of the court. This action is ejectment. To the declaration which was drawn in strict conformity with the statute upon the subject there was a demurrer, which being overruled the defendant filed pleas, and to these pleas the plaintiff interposed the general replication. Afterwards the defendant filed, with leave of the court, a plea puis darrein continuance, and to this plea plaintiff filed "joinder and replication." There was a verdict for plaintiff and motion for new trial by defendant. A hearing of this motion was denied, the motion was overruled, and there was judgment for plaintiff, awarding writ of habere facias possessionem and damages. To this judgment defendant Dupuis takes this writ of error. The first error assigned is the judgment of the court overruling defendant's demurrer to plaintiff's declaration. The defendant having "plead over," he waives his exception to the ruling upon the demurrer, and the matter cannot be reviewed in this court. 6 Fla., 516; 8 Fla., 206, 453; 14 Fla., 497; 5 How., U. S., 29; 3 Stewart, 444. The next error assigned is the refusal of the court to set aside the verdict and award a new trial. The entry in the record showing the action of the court upon the motion for new trial is as follows: "And the said motion having been brought before the court for a hearing on the 7th day of Dupuis v. Thompson-Opinion of Court. April, A. D. 1875, the plaintiff's attorney objected to the court considering the same on the ground that no notice of said motion had been given to the opposite party, and no reasons in writing for making said motion had been filed with the clerk, which objection the court sustained. The court then overruled said motion for a new trial, and to these rulings the defendant excepted." The statute provides that "no motion for a new trial shall be made unless the party intending to make the same shall file his reasons with the clerk in writing, and cause his motion to be placed upon the motion docket within four days after the verdict shall have been rendered and during the same term." Thomp. Dig., 351. In this case the reasons or grounds of the motion follow the entry of the motion on the motion docket, and that is a sufficient filing with the clerk. It is not required that a separate statement of the reasons for the motion should be filed with the clerk. If the grounds of the motion are on the motion docket, that docket being in the custody of the clerk, it is a compliance with the law. The objection, however, that no notice of the motion was given to the opposite party was a good objection to its consideration. The 53d rule governing the Circuit Court in common law actions provides that "motions required by law, or by these rules, shall be in writing, and due notice given to the opposite party;" and the 41st rule requires such motion to be entered upon the motion docket. If it appeared affirmatively upon this record that the motion was made in open court in the presence of the opposite party, this would be held due notice, or if the record was silent upon the question, and there was a hearing, that would be sufficient, but where it affirmatively appears that no notice was given, we cannot set aside the action of the Circuit Court in enforcing a plain, simple rule of practice prescribed by this court. The court, in disposing of this question, "overruled" the motion, and Dupuis v. Thompson-Opinion of Court. it may be insisted that this involved a consideration of the grounds upon which it was based. An examination of the entry, however, will show that the objection for want of notice was the ground of the action of the court, and while the entry might have stated more clearly that the court refused to consider the motion, still a fair construction of the record gives it that effect. The other errors assigned are based upon exceptions taken during the progress of the trial. In some of the State courts, and in some of the courts of the United States, it has been held that a motion for a new trial is a waiver of the exception taken to the rulings during the progress of the trial. 5 Mason, 173; I Mass., 237; 3 Ark., 144; 4 Ark., 89; 10 Ark., 246; 2 Chit., 272; 2 Black., 929; Comp., 151; Loft., 262. Before the act of 1853 (Chap. 521, Laws,) the decision of the Circuit Court upon a motion for a new trial was held by this court to be a matter of discretion not subject to review. 4 Fla., 356. This statute having granted this right, it has been the constant practice of this court to review such decisions, and in connection with them exceptions to matters occurring during the progress of the trial, which were before this statute the proper subjects of review, and which, upon a writ of error from the Supreme Court of the United States, were the proper subjects of review in that court, although in that court the rule was and is that the matter of granting a new trial by the Circuit Court of the United States would not be reviewed. The Supreme Court of the United States has held in several cases that a motion for a new trial is not a waiver of exceptions, (4 Wall., 182, 6 How., 179,) and this is the rule in this State. While this court has not expressly ruled upon the point, yet it has by its uniform practice disregarded the idea that a motion for a new trial in the Circuit Court is a waiver of exceptions. We have, therefore, in this case left for our consideration the errors assigned, based upon excep |