The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1883-03-13

January Ter.n, 4. D. Isss.

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John E. Thompson - Executor Of the last will
and testament of Olivia Gibbons. deceased .Ap
pellant, vs.. John L. McDermott. Appellee
Monroe csunty. sss
RANDALL, c. j.:
/. In suit in equity brought to set aside q
will executed by . feme sok, upon the ground
that the same was revoked by her subeeoueni
marriage, her children by former marriage who
are the egatees under the will are necessary par.
tee.
g. In suit in equity against infants. process
should be served upon them and guardian ad
atem appointed by the court to defend them
notwithstanding their legal guardian is also q
party
3. Where general guardian appears and
makes the defence required by law and is heard
by the court as the representative of the infant
such action is equivalent to his appointment as
guardian ad Item but the cause should not be
heard without answer in behalf of infant defend
ants.
4 There can be no default taken against in
FAINT defendants.
Decree reversed
L. W. Bethel, for Appellant; W G. Maloney Jr
and Geo. 2. Raney, for Appellee.
Er pdrfe Sim Bell, Habcas Corpus Gadsden
county.
RANDALL, c. j.:
l. The act of 1889, adopting the common law
OF England in relation to crimes and misdemean.
ors except so far as the same related to the
modes and degrees of punishment, does not
adept, but abrogates the common law distinction
OF grand and petit larceny. because such disiinc-
ton depended upon the degrees of punishment
to be inflicted, the degrees being controlled by
the value of property stolen.
2. By the same act all thcfts were denomina-
TED iarcenIes and no degrees OF the crime were
recognized.
3. Under the eighth section of the Declaration
OF Rights in our Constitution cases of petit lar
ceny or small larceny may be tried under reg
ulaiions made by the Legislature without pre-
sentiment or idictment by grand jury and the
Legislature may determine what alue of prop
erty stolen shall constitute the offence so trable
4 The Constitution, in using the term Z" petit
larceny" does not establish the value of proper
ty stolen at twelve pence" as controlling the
degree OF the offence according to the common
law.
Writ dismissed and petitioner remanded
John W Malone, tor Petitioner; Aitorney-Ge Gen
eral Raney, for the State.
e. F. Cooper, Executor, etc, of John Roberts, de
ceased, Appellant, VS. c. O. Livingston, Appel
lee-Duval county.
RANDALL, g. j.:
l. When the damages laid in the declaration
are greater than are claimed in the precipe and
writ, the remedy of the defendant is to move to
pleading in bar The plea is a waiver
2 Ii 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
8. Costs cannot be recovered against an execu-
tor or administrator when the suit is brought
within six months after the issuing of letters
4. In suit against the executor of will upon q
note made by decedent and indorsed 10 plaintiff
before due, defendant having pleaded want OF
consideration, it is shown that plaintiff admit
ted that the note was given for an invalid consid-
Grafton, and that he knew it at the time he
traded for il, and plaintiff does not expressly
deny making these admissions, he cannot recov-
er upon the note without showing valid consid-
Grafton as between the maker and the payee
though the plaintiff paid valuable consideration
for the note.
s. CoDjuring" sick man to cure him of his
illness is not valid consideration for promis-
s0rv pnte.
g. In suit against an executor upon note or
the dece lent, judgment that the plaintiff have
and recover from he defendant" is not proper
judgment. The judgment should be that plaintiff
recover against the defendant as executor of the
last will, etc, of the testator to be made out of
the goods etc, of the estate ofthe deceased, and
that he have execution thereof, and not against
the defendant generally.
Judgment reversed and new trial granted. c.
p. & j. G. Cooper, for Appellant; NJ. c. Jordan,
for Appellee.