The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1880-07-20
HEAD NOTES OF DECISIONS

n0AV NV NO w O0OAO4V0G
sUPRRMR CGUmr OF RH.ORxDA.
June Ter1. a. -. 1e@e.
0ottschalk Potsdamm. Plaintiff In Error, w. The
etaie Defendant in Error.-Writ Of Error, Co
{ lumbia county.
RAMnAIxxa T.:
I. Oh3eetcus to the manner Of summoning,
empanelling and the qualifications Of grand ju-
sers must Be taken BY plea In abatement or mo-
ton 70 quash before pleading to the Indictment
3. The record recifing that the grand jurors
were called, empanelled and sworn, without
giving the words of the oath, IL win be presumed
that the proper oath was administered
8 When the record shows that the members
Of the grand jury were duly sworn as such and
the caption Of the indictment states that the jurors
were duly chosen, empanelIed and sworn dill
gently 70 inquire and true presentment make In
and TOR the body Of the county" &c, "do pre-
sent" DC, this is Sufficient statement that the
pressntment ID upon their oath"
4. TIE incompetency Of petit Jurors must
afarmafively appear, otherwise verdict will not
be disturbed. The record showing that the jury
was duly selected, empanelled and sworn, II 10
presumed they were good and lawful men, y
until the contrary is shown.s
8. When in q capital case the record shows
that the Jury was called, empanelled and
sworn," it must be presumed that the requisite
cath was administered unless the contrary be
made to appear in the record.
8. A sentence to the "State Penitentiary or
State Prison" in this State is not ambiguous or
in the alternative, there being bat one institution
for the confinement Of convicts, and the statute
uses both forms OF words to indicate the same
place of confinement.
2. The statute of 1877, chapter 2096, requires
charges by The court to the Jury and the ruling
Of the judge upon instructions proposed by coun-
eel to be in writing and signed and sealed by
the judge. and filed Immediately after delivered
when they form part Of the record. In order
to assign error thereon IN the appellate court,
either as to the substance of the charge, or the
ruling Of the judge, or the omission Of the judge
to sign and seal the same, exceptions must ap-
pear by the record to have been duly taken by a
party or counsel to any error or omission or
refusal Of the judge.
g. A bill of exceptions appearing 10 have been
signed by the Judge after the expiration Of the
term, without an order having been made extend
ing the time for preparing the same, is nullity'
g. The eighth section of chapter 1873, laws of
l648, was repealed by the act of 1877, chapter
2O96, the latter being revision OF the law on the
subject-m
10. An exception to the substance of q charge
or ruling of the court upon instructions, duly
taken and appearing in the record signed by the
judge, will be considered, though the charge or
instruction is not sealed
II. This court cannot determine that the court
below erred in denying a new trial upon certain
specific grounds, unless the grounds are stated in
the motion as made.
12. A verdict of murder in the second degree,
or any other degree of homicide as defined by.
statute, may be sustained under an indictment
for murder in the first degree such verdict be-
ing expressly authorized by statute of this
State as well as by the rules of the common law !;
the degree of the crime being determined by the
jury from the facts proved.
Is. A conviction of an ofense of a minor
grade is in effect, acquttal OF the higher grade
charged in an indictment
judgment affirmed.
John E. Hartridge and w NJ. Ives, Cou nsel
fer Plaintiff in Error; Attorney General Ra ney,
counsel fer the State.
Columbus J. Porter and Ephraim Williams, Ap-
pellants, vs. Thomas Teare, Appellee
from Jefferson County.
RANDALL, G. j.:
l. T. conveyed to P. certain land in Florida,
and p conveyed to T. land in Georgia, with full
covenants, for the consideration of the Florida
land. The title of the Georgia land failed by rea
son of prior incumbrances, and T. sued and re-
covered against p. on the covenants judgment
for. the value of the consideration, p. having as
serted his right to claim, as exempt from sale,
homestead upon the land Held, That the cove
nant in P's deed is an obligation contracted for
homestead is claimed, within the meaning of the
Constitution, and the homestead right Is subject
to the payment of the money recovered for the
breach OF the covenant.
2. Where, in bill filed to enforce an equitable
lien upon land, third person, as defendant
claims to be purchaser in possession, and that
he has made valuable improvements upon the
land, and does not positively deny that he had
notice, as charged in the bill, OF the equities of
the complainant, and does not show that he has
entered into q valid agreement to purchase, nor
paid any part of the purchase money, nor what
improvements have been made by him on the
premises, or their value, such claimant has no
standing as bona fde purchaser without notice.
3. A married woman is not q necessary party
to O suit to enforce equitable lien arising out
Of an obligation contracted for the purchase Of
property claimed to be exempt as the homestead
Of the family there being no right of homestead
as against such lien.
Decree affirmed.
Pasco & Palmer, Counsel for Appellants; T..
l. Clarke, Counsel for Appellee.
Thomas Donald, Andrew Donald, and Adam
Donald, Appellants, vs. Daniel L. McKinnon,
APpellee-APpeal from jackson county.
/. In the absence of q warrant being annexed
to the assessment roll delivered to the Collector
Of revenue, as required by law, he cannot pro-
ceed to enforce the payment of taxes, and q sale
made without such warrant passes no title.
e. A simple transcript Of judgment entry
does not prove . judgment in q collateral pro-
ceeding. Enough should appear to show juris-
diciion.
g. II defendant in execution is shown to be
the landlord of the person In possession At the
date of the sale under the execution, the pur-
chaser At the sale acquires his right, and, upon
the expiration OF the term of the tenant, he, the
purchaser, can recover the possession of such
tenant, although the legal title be shown to be in
. person other than the tenant
Judgment reversed.
J. r. Mcclellan, Counsel fer Appellants D.
L. McKmnon, Counsel for Appellee.
Colonel Forney In Philadelphia Press Rsp) July a.