The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-07-15

tat an alleged illegaty has been corrected, il is
demurrable)
under the statutes, of q clerical nature he does
rot value property, but adopts tne va'aa''o .s
made by the county and State Officers LOT the
same tax year.
8. The failure OF City Assessor to complete
the assessment roll during the tax year ior wnfcn
taxes have been levied by the proper municipaI
authorities does not under the provisions OF !ne
statute regulating municipal assessments deiea'
the collection of such taxes.
J. D. Thompson, for Appellant; W. A. Bloun',
for Appellee.
The Tanner and Delaney Engine Company. APP
pellant, vs. Hall & Mobley, Appellees-Jack-
son county.
RANEY, j.:
1. Where it is attempted to join in one attach
ment, proceedings for debts due and Tor others
not due, and the allegations OF the affidavit rs 10
the debt not due are insufficient, they VIII not
vitiate the allegations or proceedings as TO the
debts which are DUE but will be treated as sur
plusage.
Q. That attachment proceedings for debts due
and those not due can be joined in the same suit
doubted, but not decided
3. The purpose of the statutory provisions as to
An attachm ent for debt not due, in requiring an
affidavit
existing debt or demand is to exclude from such
remedy contracts upon which the liability OF the
defendent is still contingent.
A. A percentage, payable as attorney fees, upon
the amount of an unmatured promissory note III
case of default as to the principal OF the note, IS
contingent liability, aud not within the statute.
S. Where other language than that oil the stat
ute is used in an affidavit for an attachment, 1t
should be unequivocally substantial to that used
by the statute The statements of the affidavit
as to the debts not DUE held not to be equivalent
to an allegation they are actually ersttn9 de6fs or
demands.
6. The statement of the affidavit that the de-
PENDANTS are dispOsing OF their property for the
purpose of avoiding the payment OF their just
debts" held to be sufficient and proper allega-
ton under sections 10 and IA, page lib, McClel-
lan's Digest as TO debts not due, and under Sec
ton 4, Of page III, as to debts actually due
T. Allegations in the affidavit that one partner
absconds, and the other is a nonresident and
that the firm is fraudulently disposing of their
property in this State are not contradictory.
g. The determination of the officer issuing a
writ of attachment for a debt not due, upon the
suffciency Of the "prOot" required by the stat
ute is not conclusive upon the court acting upon
the face of the papers constituting the proof. Ii,
however facts and circumstances be stated le-
gally tending to establish the grounds Of the at
tachment, and fairly calling on the officer issuing
it for an exercise of his judgment upon the
weight of the evidence, the proceedings will not
be Quashed by the court, acting upon the face OF
the papers, on account of error of judgment as to
the weight of it. If there is nothing which in
law amounts to proof, the proceedings may be
quashed as coram non JUDGE.
g. The proof should be reduced to writing and
filed before the writ issues
TO- An affidavit, sworn to before the Clerk OF
the Circuit Court of one county in another county
is nullity, and constitutes no proof under the
how not IN on attachment a moi
due.
II. An attachment bond in more than double
the amount of the debt demanded is sufficient.
10 A bond given by private corporation as
plaintiff in an attachment must be under the cor
porate seal of the company.
49, A writ of attachment need not recite that
the affidavit has been made or bond given
IA. Material defects in an affidavit or bond in
attachment vitiate the proceedings and the de-
fects cannot be cured by amendment.
Judgment affirmed.
D. L. McKinnon and w. o. Butler, for Appel
liant Liddon & Carter, for Appellees.
Sim Asia, Appellant, vs. Edwin P Hiser ct al
Appellees-Putnam county.
RANEY, j..
/. The statute OF 1881, section 4. p 481, Noes.
Digest, requiring verdict for the plaintiff in an
action of ejectment TO state the quantity OF his
estate and describe the land, does not dispense
with the necessity for finding of his right OF
possession.
2. A verdict in ejectment which simply finds
the fee simple title in the plaintiff, to the fol-
lowing lands" describing them, does not find the
| right of possession in the plaintiff, nor does it
| authorize the entry in behalf Of the plaintiff OF
| a judgment for recovery of possession OF the
| land.
8. Pleadngs should be properly settled and is
sues of fact formally made up before trial by
jury is had.
4 There must have been a judgment for the
| plaintiff in ejectment before proceedings can he
| Instituted by the defendant therein under the
"act for the relief of occupying claimant u
| (Chap. 1872, Mes Dig)
Judgment reversed and new trial granted.
]. W. Ashby for Appellant; Calhoun, Davis
| s. ellis for Appelees.
John J. Evans, Appellant, vs.. Darwin B. Owens,
ct ux., Appellees-Hllsborough county.
RANEY, j.:
/. Where one has paid TO another money on a
contract and subsequently there is rescission
of the contract emitting the former TO recover
part of the money so paid, he may do so upon a
count for money had and received.
g. The addition of qualification to an in
structon asked. such qualification being framed
to suit state of facts shown by the testimony,
is not error.
Judgment affirmed.
NJ. & G. B. Sparkman, for Appellees
James Glover, Plaintiff in Error, vs. The State of
Florida Defendant in Error-HillsbOrOugh
county.
NEUTRALITY-SUSPICIOUS., j.:
l. The jury on the trial of cause are the
sole judges of the credibllity of the witnesses,
and the weight of the evidence, and when they
find the facts in a contested case where there is
tNfo ui6 4 ;co 81:
will reverse the finding on appeal
g In an indictment for larcency, the article
charged to have been stolen should be suff1-
GENTLY described, so that there may be no doubt
of its identity This is required for the protec-
ton of the accused against further prosecution
| for the same offence
3. The articles so alleged to have been stolen
| may be described by the name by which they
| are generally known or called in the community
| and among the people, and the evidence must
| substantially correspond with the description in
| the indictment.
| 4. The defendant was indicted for the lar.
| ceny of gold watch. On the trial practical
| jeweler and matchmaker, after carefully examin-
| ing the watch, testified that ii was not a gold
watch; that there were thin plates of gold on
| the outside and inside of the outside cases and
| filled with some baser metal. 1t is called a
| filled case 1t is not known as gold watch by
| the trade, but is known by the people generally
| as gold watch. All the witnesses spoke of il
as gold watch, and it had every appearance OF
| being gold: Held, That this was no variance
| between the allegation in the indictment and
the proof.
8. An alleged error in the charge of the court
| to the jury, to be taken advantage of on appeal
| shOnld he eXceDted tn At the time Or asnhrdiad