CORPORATIONS—(Continued.)
sections amended are re-enacted and published at length. This is sufficient. State, ex rel. v. Knowles, et als., 577.
5. The Florida Agricultural College is a public corporation. founded by the State of Florida with public moneys derived in trust from the government of the United States. It is within the power of the Legislature to change the trustees named as corpora- tors. Id.
6. The corporators in such a corporation having made a particular con- tract with an individual, is no reason why such corporators are not subject to legislative control and removal. Id.
COSTS. See Bailiff, Jurors and Jury, Office and Officer, 6, 7; County.
1. Chancery practice forbids a direct taxation of costs as between solicitor and client against defendant; and the Code practice is not different in this respect. State v. Florida Central R. R. Co., 703.
2. Where the counsel has been employed to obtain or create a fund for the joint benefit of both parties, his fees, if he prevails, not if he loses, may be paid out of the funds; but where the interests of the parties are adverse, only the legal taxable costs can be allowed. Id.
3. Where neither partner is blameless the costs should be divided among the parties in a suit for dissolution and account. Chandler v. Sherman, 99.
1. In 1876 there was no statute making a bill incurred for the board of jurors engaged in the trial of a capital felony a charge against the county in which the trial happened, nor was the board of bailiffs in whose charge such jurors were a charge against the county. County of Nassau v. Downie, 171.
2. In order to constitute a charge against a county, the thing for which it was incurred must be authorized by law. No officer can bind either the State or county, unless there is authority, either ex- pressed or necessarily implied, given by law to make the contract sought to be enforced. Id.
COUNTY COURTS. See Jurisdiction (of Probate Judge).
COVENANTS RUNNING WITH LAND. See Lessor and Lessee.
CREDITOR'S BILL. See Pleading, 11.
CRIMINAL LAW. See Bill of Exceptions, 4; Exceptions, 9, 10, 11; Ha- beas Corpus.
1. Where it appears that a committing magistrate, on complaint that the accused had threatened to do damage to a schooner, and also to do bodily harm to the complainant. issued a warrant of commitment to the jail for want of sureties against doing damage to the property and to keep the peace toward the complainant: Held, that this was errone-
CRIMINAL LAW-(Continued.)
ous. Sureties of the peace against doing damage to property (except as to threats to burn a dwelling-house) are not authorized by the com- mon law or by statute, and imprisonment for want of such sureties is not allowed by law. Ex-parte Harfourd, 283.
2. The commitment having been made for want of bail for an act not criminal, and also for a criminal act, is irregular. The security should be fixed according to the degree of the criminal act charged, and the court on habeas corpus should, if required by the accused, hear and examine into the evidence for the purpose of determining what crim- inal act has been committed, and the probable cause shown against the accused, and this, whether the warrant of commitment was regu- lar or irregular. Id.
3. In an indictment for procuring property by fa se pretences, it is not suffi cient to charge that the prisoner "designedly, and by a false pre- tence, and with intent to defraud one A. P., did obtain with such intent the following property." It must charge what that pretence was, and allege specifically that it was false. Hamilton v. State, 288.
4. The record showing that the defendants were brought into court, that they appeared by counsel, plead to the indictment, were tried and convicted, is sufficient evidence of a proper arraignment. Story & Sullivan v. State, 564.
Where a party has been tried and convicted of an offence before a Jus- tice's Court, and a fine imposed under the statute, and the Justice in his commitment recites the fact of the conviction and the imposition of the fine, and further directs that the accused "be conveyed to the county jail to be employed at such manual labor as the County Com- missioners may direct, which time shall not exceed ninety days," and the statute under which the accused was convicted limits the term of imprisonment to which he may be sentenced to sixty days: Held, That so much of the commitment as seems to authorize an imprison- ment for ninety days may be treated as surplusage and void, without affecting the legality of the commitment for the non-payment of the fine. The term of the imprisonment for such non-payment is regu- lated by the statute. The writ of habeas corpus is refused. Ex-parte Hunter, 575.
6. To authorize a witness to testify as to the reputation of another fo: truth and veracity in order to impeach him, it is not necessary that he should know what a majority of his neighbors or associates say or think of his character for truth. Robinson v. State, 835.
7. If a witness testifies that he knows the reputation for truth and ve- racity of the party to be impeached where he lives, the questions as to whether that reputation is good or bad, and whether from that reputation he would believe him under oath, are proper. Id.
8. The opposing party can, upon
cross-examination, ascertain the ex-
CRIMINAL LAW-(Continued.)
tent of the information of the witness, and the sources of his know- ledge.
CROSS-BILL. See Pleading, 10.
DECREE PRO CONFESSO. See Appeals, 9.
1. A service of subpœna upon a sheriff, as ex-officio administrator, before he has been ordered by the Judge of Probate to take charge of the estate of a deceased mortgagor, does not authorize a decree pro con- fesso. Wilson et al. v. Dibble, 782.
2. "Proof by affidavit to the judge" that the order requiring a defendant resident of another State to appear and answer has been published in the manner and for the time prescribed by law, is one of the require- ments of the statute in order to perfect a constructive service. This proof must be made before the judge can grant an order taking the bill for confessed. Tunno and Jesup & Co., v. Roberts, 738.
DEFAULTS. See Judgments, 2, 3.
DEMURRER. See Pleading, 1, 3, 6; Practice (Law), 5.
1. The action of ejectment is one in which the plaintiff must show that he has not only the legal interest, but a possessory title in and to the permises in controversy before he will be entitled to recover. Jones v. Lofton, 189.
2. In order to enable a plaintiff to recover in such an action, when his right of possession is controverted, he must prove-first, that he had the legal title to the premises at the time of the commencement of the action; second, that he had the right of entry; and third, that the de- fendant, or those claiming under him, were in possession at the time the suit was commenced. Id.
3. A mortgagee cannot restrain the prosecution of a suit in ejectment (brought by a purchaser under a junior lien) against the mortgagor or his tenant. Thompson v. Maxwell, 773-
4. Where the verdict of the jury is plainly against testimony, as to which there is no question of credibility, a new trial should be awarded. Hence, in an action of ejectment, under our statute, where there is no question as to the allowance of mesne profits, and where the value is fixed by the testimony, the jury must find some damages. Duncan v. Jackson et als., 338.
5. Under the statutes of this State, certain occupying claimants, after judgment of eviction against them, may have the value of their im- provements assessed by a jury in a particular manner and under a , special charge. This and other provisions of the statute are of such character that the value of the improvements cannot be set off be-
fore judgment against the mesne profits recoverable as damages in the action of ejectment. Id.
6. A suit in equity to recover the possession of lands under a legal title, and for mesne profits, cannot be maintained. All the issues of law and fact in regard to the title and the rents and profits may be tried in a court of law. Cavedo v. Billings, et al., 261.
1. Whether a vote cast at an election was legally cast, or whether an elec- tion held on the day appointed of which due return is made to the Board of State Canvassers was a legal election, are judicial ques- tions which the Board of State Canvassers of elections cannot deter- mine. The general power and duty of this Board is to ascertain and declare who received the majority of votes cast. This is a ministe- rial duty, and its exercise may be controlled by mandamus. State ex rel. v. Board of State Canvassers, 17.
2. The words "true vote," in the statute governing the Board, mean the actual vote cast as distinct from the strictly legal vote. Where a re- turn is so irregular, false, or fraudulent that the Board is unable to determine the actual vote cast, the entire return, under the statute, should be rejected. While this power to determine the falsity or irregularity is something more than simply counting or computing, still such power necessarily appertains to the discharge of every min. isterial duty of this character. Id.
3. Where acts admitted to be done by the answer of respondents in a proceeding by mandamus disclose erroneous action and a failure to discharge a ministerial duty imposed by law, and a consequent vio- lation of right, this court has power to order a Board of State Can- vassers to reassemble and discharge their duty. Id.
4. Under the statute, the proper and only place ter the filing of the original certificate of a canvass by the Board of State Canvassers of the votes cast at a general election for Governor in this State, is the office of the Secretary of State. Where such an original certificate is filed in this court as a response to a peremptory writ commanding a canvass, this court should direct its return to its only proper legal place of de- posit. While it is the duty of this court to compel the Board of State Canvassers to perform their duties, still the canvass made by them under our order is their canvass. This court is not a Board of State Canvassers. Id.
5. Where a canvass for votes cast for persons at an election for the office of Governor of this State is commanded by a peremptory writ, a re- sponse showing a canvass of votes cast for other officers is surplus- age, which the court of its own motion should strike out. Id.
EQUITY AND EQUITY JURISDICTION. See Chancery Jurisdiction,
Estoppel, Injunction, Mortgage, Parties, Practice, (Code,) Practice, (Equity,) Trusts.
ESTATES OF DECEASED PERSONS. See Administrators and Ex- ecutors.
Where A. attends conferences of creditors as to the general settlement of the estate of an insolvent debtor, and during this period collects an asset of the insolvent under directions from him to hold the proceeds until settlement with creditors, and afterwards, at a final conference of creditors, resulting in a general assignment, he signs a statement admitting the claim so collected to be an asset of the insolvent, he is estopped from afterwards denying that fact and setting up his own claim as a set-off. Keyser, Judah & Co. v. Simmons, et als., 268.
1. 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. Dupuis v. Thompson, 69.
2. The legal presumption is that an officer does his duty when acting un- der 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 advertise- ment when he puts in evidence the judgment, the execution, the levy, the return of the sheriff, and his deed reciting due and legal ad- vertisement and sale. Id.
3. A leading question should be permitted only when it appears essential to justice; where a witness is persistently unwilling, or biased, or there exists some like reason, the court should allow it. In some cases a party may and should be permitted to lead his own witness. This matter, however, is in the discretion of the court. It is not ground of error, and Appellate Courts universally refuse to review such exercise of discretion. Coker & Scheiffer v. Hayes, 368.
4. After a witness has been examined in chief, and is recalled in rebuttal, the court may, very properly, prevent a simple repetition of his tes- timony. A party after his examination of a witness, and after closing his testimony, has not absolute right to recall this witness to establish matters not in rebuttal. Whether this rule ought to be varied is a question for the Circuit Court, and an Appellate Court, if it interferes at all, should only do so where it sees that injustice has been done through this action. Id.
5. Questions leading to testimony apparently not pertinent to any issue are properly overruled. Id.
6. Where, upon the face of the record, a question clearly open to the ob- jection that it is leading and suggestive is rejected, and no ground for its rejection appears upon the record, the action of the court must be
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