The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1883-11-27

| ing between the heirs and distributes the suta
viving partner is properly chargeable with ssscA
| claim an asset OF the firm, Notwithstanding
the party allowing the claim swears no such ainS
was due. This in a case where the party tiRss
settling the account waived At The time. all
I right he may have had to recover the ama,tn.
| from the firm or any member thereof
Is. \ surviving partner cannot object thai IN
terest upon a balance found due by him upoa an
accounting before master between hin, and the
| heirs and distributes of the deceased partner,
| is allowed from the date the amount is aecfr..
tanned, and the balance struck BY the master.
16. Where the conclusion from the sestimony
| is that an administrator could have readily col
lected balance due the estate upon juds-
ment with the use Of that reasonable diligence
and care that prudent man exercises I hisoWn
affairs the administrator should be charged with
it. Shepard's Heirs va. Sheparls Adminisita.
tor, 10 Fla. 800, cited and approved.
| H. The administrator sets up as a ground t,f
| appeal, that he is charged compound interest
| on moneys not actually reduced to possession"
| and fails to show any particular item or charge
| in which this has been done. II is not the dnsy
of this court to look through several volumes OF
| o record in search for illegal charges of any
kind for either party, when they not pointed
out. Such grounds OF appeal are 10 he regarded
| as frivolous
| 49, Because there is guardian of an infani
| appointed is no reason why funds in the hands
| of an administrator in which she has ali interest,"
| is not to bear interest under the statute during
| the administration.
~. An exception to the effect that there is rf-
ror in the balance found against the defendant.
| and on the final accounting no items being men
| toned is frivolous
20 Upon previous appeal in the judgment
OF this court there was assessed as costs the SUN
Of $20.75 for certified copy of the opinion TO
the Circuit Court A sum paid by either of tile
parties for an additional copy Of the opinion f,r
their use, is not properly chargeable in the costs
| of the suit.
| 21 Costs incurred ia the Circuit Court after
the entry of the appeal, such a charge Cor Ger
tilted copy OF the record of the decree appealed
| from, are taxable in this court and moi in the
Circuit Court.
% A demurrer interposed in the Circuit Court
| ls oyerruled. There is no question of the equity
Of the bill. Upon appeal this court discovers
that an infant plaintiff was not properly bettrre
| the court that the widow of the deceased in
testate was suing in right which did not exist,
| and had omitted to make certain allegations.
| Upon remanding the cause this court directed
| that an amendment be allowed The defen liant ms
! to costs under these circumstances should staEd
| in no better position than il he had set mp The
| grounds in his demurrer, and the court should
! have sustained his demurrer. Costs Of tie
| amendment and no more shonld have been al
! lowed. This was the extent of the additional
cost incurred and no more under the nsua pras:-
| tice was permissible
% Where the suit is by distributes for an
account at the hands of the administrator, who
Is also debtor to the estate as surviving partner
| in partnership of which the deceased intesate
was the other member, and the distributes in
said suit claim and recover balance against
him as surviving partner, neither the estate nor
the interest of any dstrbutee should he charged
with any costs incurred in connection with the
accounting as surviving partner, where the
claim is resisted by the surviving partner rfter
failure by him to render an account of partner
ship transactions. Here the surviving partner
has no claim to costs, either as between party
and party or as between attorney and client As
to the matter Of the suit for distribution not,
withstanding the dlsallowance of some OF the
claims Ot the administrator, and notwithsand 4
ing the Fact that upon an accounting he is found
indebted To the distributes, he is entitled 20 his
COSTS as between party and party, and also TO
any reasonable charge which he has incurred fol-
attorneys fees, in the matter of his accounting
and settlement as administrator in case where
he has acted in good faith without fraud, and his
administration is followed by full and fair set
tlement, and where from the positions assumed
by the distributes he was forced to submit to
litigation in order TO arrive at any fair settle
ment.
"a. An adult dstrbutee is not responsible for
all the costs incurred in suit for the settlement
of an estate in which a minor is codistributee
1t not paid from the estate portion of the costs
would go against the next friend. Here pro-
portiOnate share should be charged against the
part of the funds coming TO the infant rs the
suit is in good faith and for her interest by the
next friend
Decree affirmed except as to COSTS
H. Bsbee, Jr, for Sandersnn's distributes
Fleming & Daniel and John T. Walker, for San
dersons Administrators
w. C.. Mccall as Executor, &c, of Penelope
Hart, Executrix, &c, Plaintiff in Error. VS.
Chandler H. Smith, Defendant in Error-Leop
countv-transferred from Madison.
RANDALL, c. j.:
1. The power Of the court under the statute To
allow amendments applies to the amendment of
n petition for the re-establishment of lost pa.
pers.
2 After u cause is remanded by the SUPREME
Court to the Circuit for further proceedings such
court has power TO admit amendments to be
made to the pleadings and proceedings, Unless
the Supreme Court otherwise directs.
3 When party has by pleading waived an
objection which might have been taken it is too
late after action Of the court upon such pleading to
withdraw it for the purpose of raising the OH
lection so waived.
d. An executor Of an executor is the executor
of the will of the first testator unless he shall az
the time of qualifying renounce and refnse 10
administer under the will Of the first testator
5. After. notice to the executor Of an executor.
OF petition praying the re-estabshment of 4
lost writ OF i ia upon judgment against the
first executor, the last executor cannot have the
petition dismissed on the ground that he has
since the notice renounced administration under
the will of the first testator
Judgment affirmed
W. c. Mccall and Fl. j. Mccall, for Plaintiff
in Error; G. w. Stevens, for Defendant in Error.
| l.. NJ. Merritt Il Son, Appellants. vs. w L. Wit
itch, Appellee-Escambia county. F.!
| VANVALKENBURGH, j.:
| l. Where party sells and delivers to another
party at port OF entry in this State quantity
| of timber on board ship, and guarantees the
same to be Of :" the seasons manufacture. and of
fair average quality the measurement to over
run the specifications" the measure of damages
to be recovered in an action for a breach of the
contract, is controlled by the difference in the
value OF the timber in the market where the con.
tract was made, and the timber delivered.
| 2. The refusal of the court to receive evidence
in such case of the difference in such value il.
the market of Liverpool. where the contract does
not provide Tor such an assessment of damsge
and where there is no allegation in the declara-
| ton that the damage was there to he assessed is
not error.
| g. The contract or agreement of parties in
Liverpool for the purchase and sale of such tim
her, to receive from their consiguors, In Perisa-
cola, certain sum in full for damages on a
breach OF such contract to be completed in Liv
erpool, is not evidence of the value OF the tim
ber as guaranteed in Pensacola. and its market
value in Pensacola. .
4. The general rule is, THAT damages re.
coverable will be calculated at the market value
OF the goods a. the time and place when and
where they ought 10 have been delivered "
"And evidence Of the value Of such goods in a