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Robinson v. Barnett-Opinion of Court.

This charge would seem to cover all that is asked for by the counsel in his second assigned error. It is certainly explicit and to the point. It is not necessary for a court to repeat, even at the request of counsel, what he has already given in his charge to the jury. In the case of Metzger vs. The State, 18 Fla., 481, this court held it was no error in the court to refuse unnecessary repetitions in his charge.

The third exception as stated in the assignment of errors is based upon an hypothesis that did not exist. Robinson, according to his own evidence, knew and unequivocally proclaimed at the time he wrote the words "protest waived" that the signature was a forgery. The whole thecry of the defence was based upon that fact, and there is nowhere in the case a particle of proof that Robinson "learned that the endorsement was a forgery" after the maturity of the note. The court well declined to so charge. as it was not based upon any evidence in the case.

As to the fourth assigned error we are only to say that the evidence was conflicting, it has been passed upon by the jury, and by the court below on motion for new trial, and this court will not interfere.

The fifth error assigned cannot be sustained. The case was one properly to be decided by a jury. The law was sufficiently explained to them, the Judge below who gave the law to the jury was satisfied with their verdict, and this court will not interfere. McMurray & Brittain vs. Basnett,

18 Fla., 609. Judgment affirmed.

Cooper v. Livingston-Syllabus.

C. P. COOPER, EXECTOR OF JOHN ROBERTS, DECEASED, APPELLANT, vs. C. O. LIVINGSTON, APPELLEE.

1. When the damages laid in the declaration are greater than are claimed in the præcipe and writ, the remedy of the defendant is to move to set aside the declaration for irregularity before pleading in bar. The plea is a waiver.

2. If the damages assessed are greater than the amount claimed in the declaration, the plaintiff may remit the excess or amend the declaration in that respect before judgment. Judgment for the excessive amount is erroneous, and will be reversed.

3. Costs cannot be recovered against an executor or administrator when the suit is brought within six months after the issuing of letters.

4. In a suit against the executor of a will upon a note made by decedent and endorsed to plaintiff before due, defendant having pleaded a want of consideration, it is shown that plaintiff admitted that the note was given for an invalid consideration, and that he knew it at the time he traded for it, and plaintiff does not expressly deny making these admissions, he cannot recover upon the note withont showing a valid consideration as between the maker and the payee, though the plaintiff paid a valuable consideration for the note.

5. "Conjuring" a sick man to cure him of his illness is not a valid consideration for a promissory note.

6. In a suit against an executor upon a note of the decedent, a judgment that "the plaintiff have and recover from the defendant," is not a proper judgment. The judgment should be that plaintiff recover against the defendant as executor of the last will, &c., of the testator to be made out of the goods, etc., of the estate of the deceased, and that he have execution thereof, and not against the defendant generally.

Appeal from the Circuit Court for Duval county. Trial and judgment by Mr. T. A. McDonell, Attorney at Law, as Referee.

The facts of the case are stated in the opinion.

Cooper v. Livingston-Opinion of Court.

C. P. & J. C. Cooper for Appellant.

M. C. Jordan for Appellee.

THE CHIEF-JUSTICE delivered the opinion of the court:

Livingston, plaintiff below, sued on a promissory note made by John Roberts to Mrs. E. G. McGruder, December 29th, 1876, for $250. Defendant pleaded "on equitable grounds" that the note was given without consideration; that the payee extorted the note from Roberts in his last sickness, while weak in mind and body, upon her promise to cure him by conjuring and incantations. Roberts died a few weeks after giving the note. Defendant further avers that plaintiff was not an innocent purchaser for a valuable consideration, but bought the note with full knowledge of the origin of the note and the illegality of the consideration. The plea was sworn to and plaintiff took issue

thereon.

A trial was had before a referee, who found for the defendant, and on appeal the judgment was reversed. Upon a second trial the referee found for the plaintiff, and the defendant now appeals.

The præcipe for the original process laid the damages at $400. The declaration claimed $500 damages. The finding and judgment of the referee were for $575-33.

A motion in arrest of judgment was made upon the ground of variance between the præcipe and declaration.

This is not a proper ground of a motion in arrest of judgment. McKay vs. Freibele, 8 Fla., 21. If the damages claimed in the declaration were greater than those claimed in the præcipe and summons, the proper remedy was by motion to set it aside for irregularity before pleading. Ch. Pl., 269, 16 Am. Ed. What is proper matter for a motion in arrest of judgment is sufficiently stated in Sedgwick vs. Dawkins, 18 Fla., 335.

Cooper v. Livingston-Opinion of Court.

In the present case the defendant pleaded to the declaration, and thereby waived the technical variance. Robinson vs. Hartridge, 13 Fla., 501, 508. If the damages found were greater than the amount claimed in the declaration, the remedy is by a remittitur of the excess of the damages, cr by amending the declaration in the prayer for damages before judgment. I Chitty's Pl., 16 Am. Ed., 349. Such amendment is within the purview of Section 74, Chapter 1096, Acts of 1861. If the amendment is not made and judgment is entered for a larger amount than is claimed in the declaration, it is error and the judgment must be reversed. Harris vs. Jaffray. 3 Har. & J., 543; Hoit vs. Molony, 2 N. H. 322.

"Where the court has jurisdiction of the cause relief is granted against difficulties of this kind in two ways. One is to permit the plaintiff to enter a remittitur for all the damages found over the sum demanded, and to take judgment for only the residue." 17 Johns., 111; 4 M. & S., 93; 2 Bl. Rep., 1300. "Another is to set aside the verdict and then, before a new trial, grant an amendment." Tidd, 653: 2 N. H., 323.

It is too late to allow such an amendment after a writ of error by the Appellate Court. Hutchinson vs. Crossin, 10 Mass., 251.

Error is assigned on the ground that costs were given against the defendant, who is an executor, the suit having been brought within six months after the issuing of letters testamentary. The statute expressly says that the plaintiff, though he obtain judgment for the amount of his claim, "shall not recover any costs in his suit" if he bring his action against an executor or administrator within six months after taking out letters. McCellan's Dig., 84, §28,

Act of November 20, 1828, $26.

There are no exceptions made in the statute. The object

Cooper v. Livingston-Opinion of Court.

of the suit is to establish the demand if it is disputed, but as the executor cannot be compelled to pay any demand within six months, he cannot be mulcted in costs if sued within that time. This judgment for costs is therefore er

roneous.

The second plea is called by the pleader on the part of the defendant a "plea on equitable grounds.' While this plea is not properly a plea on equitable grounds within the meaning of the statute, yet it denies a valid consideration for the giving of the note, alleges that plaintiff knew of the illegality of the consideration, and that plaintiff bought it with such knowledge for an inadequate consideration. The plaintiff having treated it as a proper plea of a legal defence by taking issue upon it, we will so consider it.

The referee in his finding says that the testimony is substantially the same as that given upon the first trial. See 18 Fla., 70, where the testimony on the first trial is substantially compiled and considered.

A comparison of the testimony given upon both trials: shows a very substantial difference in several respects. We state briefly the testimony given upon the last trial.

The note was introduced by the plaintiff, and there he rested his case. The defendant, instead of insisting that plaintiff must make further proof as to the consideration of the note and of its endorsement by the payee to the plaintiff, proceeded to introduce testimony to prove his defence.

W. M. Ledwith testified that he was present when plaintiff brought the note to Mr. Cooper as executor of the will of Roberts and demanded payment soon after the death of Roberts. Mr. Cooper endeavored to ascertain the nature of the claim. It transpired that the money asked for was for services rendered to Mr. Roberts by a professed fortune

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