The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1885-05-14

not appear in the policy, and it is shown tina,
the assured was, at most the owner in fee OF
only an undivided interest in the land, and there
s DO evidence that the assurer has waived, or Is
stopped from insisting upon such provision as
defence, the verdict should be for the assurer
Under socb circumstances verdict for the as
sured should be set aside and q new trial
granted.
NJ. c. Jordan for Appellant; w B. Owen fox
Appellee.
Eliza McDougall {, al, Appellants, VS. Louisa
Meginniss ct al, Appellees-Leon county.
McWHoRTER, C. j (Raney, J., disqualified
l. 4" Exemption laws are 10 be literally con-
strued iu favor Of their benefeen, purposes.
2. The Constitution Of this State, Section /.
Article 8, exempfs homestead 70 the extent Of
one hundred and sixty acres Of land outside an
incorporated city or town 10 the head Of family
residing IN this state with the Improvements on
the real estate. without regard TO the that
may be made Of that portion Of the tract rot
covered by the residence and enclosures.
Judgment reversed
RW Williams for Appellants: D. W GwynD,
for Appelless.
John W. Howell, J. C. Greeley. Assignee, Ap-
pellants, vs. VIM. T. Dixon & Bro, Appel
iees-Duyal county.
McWHoRrER, c. j.:
/. A deed of assignment preferring certain
creditors, and providing that the assignee after
the payment OF said creditors should distribute
and pay the remainder of said proceeds ratable
and in equal proportion 10 my other creditors in
satisfaction and release of all my debts By me
owing is void as to creditors
2. deed Of assignment containing clause
for pro rata payment of the remaining creditors,
after certain other preferred creditors were paid
and providing for return of any surplus there
might be 10 the assignor is void as to creditors.
Judgment affirmed.
c. p & J. {. Cooper for Appellants; John T
& George L. Walker for Appeees.
Of Florida, Defendant in Error-Maron
county
VASVALKENBCRGH J.
In civil suits, generally, presumptive evil
dence as distinguished from direct evidence OF
marriage is prina1 tarte sufficient as hen a man
and woman cohabit together, and speak o. each
other as husband and wife, and of the crcum-
stances of their marriage, and the like but suits
where criminal conversation adultery, polyga-
my, &c, constitute the essence or foundation of
the action, more rigid rule is required. In such
case Prescriptions do not apply, and in order to
convict the defendant the marriage must be
proven.
Judgment reversed.
S D. Mcconnell and Miller s. Spencer, for
Appellant; Attorney General for State.
James D. Goss, Appellant, vs. Mary E. Furman,
Executrix, Appellee-Alachua county.
RANEY, j.
An agreement by which q husband and wife
undertake 10 convey lands owned by the latter
as her separate property under the Constitution
or statute of Florida, and as 10 which she has
not made her acknowledgment on a separate ex-
animation, is void as to the wife, and equity will
not specifically enforce it against her, although
the party seeking relief has paid the considera-
ton, and is in possession. That this rule would
be altered by the fact that she had made such
an cknowledgment-neither admitted nor
passed upon.
Judgment affirmed
Goss & Duncan, for Appellant Finley &
Hampton, for Appellee.
Ann F. White ct al, Appellants, vs. Staley's Ex-
ecutors, Appellees-Jackson county.
McWHoRTER, c. j.: Raney, j., disqualified)
/. Rule Seven of the Rules of Practice for
the Government of Circuit Courts in Suits in
Equity is the only authority for the issue of an
execution on decree in equity for the payment
OF money. The rule does not authorize the Clerk
Of the Circuit Court to issue an alias execution
when the original is lost or destroyed
2. paper purportng to be an alitls execution
issued On decree in equity, for the payment of
money, by Clerk OF Circuit Court, without
an order Of the court in which said decree was
rendered. is a nullity.
3. Rule Seven of the Rules, supra, does not
Adopt the provisions of Sections 3 and ) Nc
Clellan's Digest PIP. 521, 522. 1t adopts only the
form Of executions used in the Circuit Courts in
a suit at common law.
Judgment affirmed.
Liddon & Carter, for Appellants; J. F. Nc
Clellan, for Appeees
Julius Solomon, Appellant VS.. The Pioneer Co
operative Co, Appellee-Jackson county.
RANEY, j.:
l. When it is expressly agreed between IA
debtor and creditor that negotiable prOmissOry
note or bill of exchange given by the former to
the latter should operate as payment, and salts
faction OF an existing claim, the creditor cannot
maintain action on such claim, but will be
confined TO his remedy on such note or bill
Tie intention Of the parties as 10 whether the
bill or note was 80 given and received is a con-
trolling element in the issue, and is question Of
fact for the jury. May q Sloan vs.. Gamble, IA
Fla, 495, approved.
9. A plea filed to the common counts in an &C
ton on an open account for goods sold. &c, and
alleging that before the action the defendant dis
charged and satisfied the plaintiffs claim by Civ
ing draft on a third person for the full amount
of the claim, and that the plaintiff accepted the
same in full payment and satisfaction thereof,
sets up good defence in law, and is not demur-
rable. 1t is not necessary to expressly allege
that the draft was negotiable, as the plea, in the
absence of such allegation, is sufficient TO admit
proof of a negotiable instrument
8. The allegation, in plea to such an action |
that the plaintiff endorsed aud transferred the |
draft before it became due, and that the endorsee
brought suit thereon against the defendant and
that there was judgment therein against the |
endorsee, does not in the absence of the agree
meet that the draft shall operate a payment or |
satisfaction of the account, constitute defence |
to the action on the account non constat but |
that the assgnOr may have owned and held the |
draft by reassgnment, and this may have been
the ground Of defendants recovery against the |
original assignee.
When Il appears on the trial that a nego-
table bill or note has been given on account of
the debt sued on but there is no agreement by
which il operates as payment or satisfaction, the
plaintiff will not be permitted to take judgment
unless he produces the note or bill and cancels il,
or shows that it has been surrendered TO the
defendant or otherwise satisfactorily accounts
for it.
3. The limitation Of an action for any article
charged in q store account" is four years. 1t ap-
plies as well to Wholesale % to retail store ac-
counts, and covers the cases Of all store keepers
selling goods, and keeping accounts against pur-
chasers and relying upon their books Of account
a. evidence. and 10 not controlled by the mere To-
cality OF the store, and use to be made Of the
goeds purchased.