The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-05-13
MEA D-NOTEs TO DECISIONS OF THE
SUPREME COURT OF FLORIDA.


George N. Moody ct al, Plaintiffs in Error, vs. H.
NJ. Hoe Il Co., Defendants in Error-Levy |
county.
MCWHoRTER, G. j.:
/. When the Clerk of the Circuit Court issues
an execution on forfeited forthcoming BOND
under sec. %, p. $685. Noes Dig, given for the
trial of the right of property levied on by eXecu-
ton he acts as ministerial officer only, and MS
acts to be valid and binding must be in conform
ity to the statute
2. When the clerk issues an execution on a
bond made by the claimant OF property LEVIED on
to four different persons Jointly against the claim
ant and his su cites such bond and JOINS there-
in the original defendant in execution, such exc
cution being issued in favor only OF one OF the iour
obligOrs in the bond, il is not in compliance win
the statute and should be set aside on motion.
Said statute does not authorize the clerk 10
issue an execution against the obhgors IN the
bond, neither the principal therein nor the sure
ties for the costs OF the proceeding to Try 'he
right of property
Judgment reversed with Instructions to set
aside the execution
Randall, Walkers Il Foster, for Plaintiffs in
Error; j. j. & s. Y Finley, for Defendants IN
Error.
George N Moody, Plaintiff in Error VS.. X. NJ
Hoe ct al, Defendant in ErrOr-Levy county.
McWHoRTER G. j.:
1. Where party claiming property levied on
by an execution against another sorts to me
statute Noes Dig, Sec. %, PIP. 524 and 525, for
the re. overy thereof, if the proceedings are not
i1stitu ed and CO Quoted in accordance with its
material p DIVISIONS, they will be reversed on
.. WGfehhf various eAc,u..;;.,- ..,ar,nants @,
different persons between whom there is no con-
nection a.e levied on personal property which is
claimed by third per- m and such person as
serts his claim under Inc statute, Noes Dig,
pp 524, 52j, Secs. % and "a, he should make
an affidavit and bond separately to each plain
tiff in il. ia. He cannot join in the same afiida-
| Wit and bond all the plaintiffs in execution.
3. When on IA trial OF the right Of property,
| the affidavit made by claimant includes four
| different executions in tavor of tour different
| parties, and the bond OF claimant is made to
such plaintiffs in execution jointly, and the oath
administered to the jury is TO try the right OF the
claimant to the property levied on by executions
| in favor of one of the plaintiffs, naming him,
| sand Others" and the jury find that the property
is not liable to the execution of the pary ndHaed
| and is liable to the execution OF II party not
named in the oath administered to them, such
verdict should be set aside on motion.
4. No plcadings are required by the statute in
trial OF the right OF property, but T0uM seem
| to be the duty of the court to SD frame the oath
administered to the jury rs to inform them, that
| by their verdict, they were to determine, whether
the property levied on was the property of the
| claimant, or whether it was subject 10 payment
| Of plaintiff execution.
Judgment reversed and cause rcmanded with
| Instructions to set aside the verdict and grant
| new trial.
| Randall, Walkers e. Foster, for Plaintiff in Err
| ror J. J. Il S. y. Finley, for Defendants in Err
| rOr.
Antonio Solary, Plaintiff in Error, vs.. Charles
| f. Stuliz, Defendant in Error-Duval
county.
| MCWHoRTER, G. j.:
l. When bv IA written instrument signed and
| delivered 10y the person making the same, to the
beneficiary mentioned therein for expressed
consideration, the instrument being silent as to
whether the consideration was pad, or rs to the
time when it was to be pr Il, The law will pre-
sumo that il was paid at the time of the delivery
| thereof
| time of delivery would not violate the principle
| which io"bids the contradiction or variation of Il
writing by p .rol.
3 When an instrument in writing sued on is
| set out in the declaration In hucc rciIn, IL plea
which adds conditions and stipulatlons thereto
which are not included in said writing and from
which plea it is apparent that it is the lounda
ton tor the introduction of illegal evidence, is
| De nurrable
4. Ii day be appointed for the payment of
money, and the day Is 10 happen or mty happen
before tie act, which is the consideration there
is not CO ldtlon precedent to the performance
| of the ACT for which il served IL consider
alton.
>. An instrument in writing appended TO II
| paper purpOrtng to be bill for merchandise
| sold by one StultZ To- one Powers in the follow
| Ing words: " In consideration of seven and Il
halt per cent. gu .rance the above bill to the
| amount OF two hundred dollars. (Signcd) y.
Solary," which was writ N by Stuz and pre-
scented by him to Sofa y for his sgr atuie as the
| conclusion OF Il negotiation be. wecn Il EN- and is
| signed by Solary and delivered to StultZ, is a
guaranty and not an offer to guarantee which
would require acceptance by the beneficiary and
| notice thereof to the guarantor
u. 1t was OF no legal consequence that Pow
ers, the principal debtor, knew nothing of the
transaction between Stultz and Solary.
z. Plea of part lfyDaent of a sum claimed is a
| proper plea pro tdnto
8. An extension OF time for payment for a
| gD0d consideration given by creditor to his
debtor, will discharge from liability person
who had guaranteed the debt to the creditor
8. An agreement by the creditor to extend
| The time of payment Of the debit guaranteed
sixty days upon the debtor paying him sam
| of money he owed him on another transaction,
| is not ba ID on n good co lsidei alton, and will
| not discharge the gu antor.
| 10. A charge of court which refers to a
| jury the construction of a written instrument in
| evidence before them, and which contains no
| of explanatory parol testimony and such evil
dcnce is not introduced or offered, is erroneous
| The construction OF such instrument is the pro
| vince ar duty of the court.
| Judgment reversed and new trial granted
NJ. G. jordan for Plaintiff IN Error; Randall
Walkers & Foster, for Defendant in Error
Jacksonville, Tampa and Key West r. r. Co,
Appellants, vs. Roberts Il Bemis, Appcllces-
| Clay county.
MCWHORTER, c.
Where the damages assessed by the jury IN
| an action on a contract, express or implied, are
| plainly excessive The verdict will be set aside.
Judgment reversed and new trial granted.
Fleming & Daniel Tor Appellants; G. Fabian
Law, for Appellees.
A ID. Johnston, Jr., Appellant, VS.. r. r. p. Al
len, Appecc-Orange county
McWHoRTER, G. j.:
L. When plea on equitable grounds consists
of facts which ale available to the defendant as a
common law defence the court, on motion of
plaintiff, shOLll strike out such equitable plea
3 The accept0r of IL draft negotiable
may pay the same to the payee thereof after its
maturity, even though the draft be not produced
and delivered up 10 the acccptor at the time of
payment, provided the acceptOr has had no no.
ce of the transfer OF the daft by the paYcc to
third person, and such payment would be valid
defence against the note, should SUIT he brought
thereon against the acceptor by another person.
g. II payment is made by the acceptor to the
payee and the draft be not delivered uD al the
time of payment and suit s aft .rwardS brought
thereon against the accept)r by another holder
claiming to be the tranSc e thereof the burden
ti,n IIa III