The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-05-13

8. Bv our statute, Chap. 3241, February goth,
1881, a person to whom q non-negotiaole drait
has been transferred by delivery thereof may
maintain suit thereon against the drawer or &C
ceptor in his own name.
Judgment reversed and new trial granted
Alex. St Clair Abrams, for Appellant ham
mond & Johnson, for Appellee.
c. O. Livingston, Plaintiff in Error, vs. q: r.
Cooper, Executor of &c. of John Roberts, De
ceased, Defendant.in Error-Duval county
VANVALKENBURGH, j..
l. An application for the continuance OF
cause is always addressed to the SOUND dlscre-
ton of the court, and must be left TO the trlou-
nal which has the parties before it, and who
must determine from variety OF circumstances
occurring in its presence, whether SUCH applca-
tons are made in good faith
g Except it appears from the record that there
has been an abuse Of such discretion, whereby
the rights of the party may have been Jeoparded,
the decision OF the court will not be disturbed.
g. Instructions given by the court to the jury
are based upon the evidence adduced on the
trial and to enable the appellate court to de-
termine to the correctness OF the rulings Oh
the court below, in granting or refusing the IN
structions SO asked that evidence must be pro-
duced in the bill of exceptions.
f. 1t is a rule of law, we'll settled, that every
presumption is in favor of the correctness OF inc
ruling of the court below and in order TO induce
appear that an error has been committed Ana
when party fails to bring up the evidence upon
which such ruling is based this court will refuse
to consider the exception.
Judgment affirmed.
NJ c. Jordan. fot Plaintiff in Error; e. L. "
!. q "~~r"- for Defendant in Error.
John A. Med Dnald ct al, Appellants, We f. &.
Rehrer, ct al, Appeees-Orange County.
VANVALKENBuRGH, j.:
l. A bill in equity, and an injunction issued
thereon, is not the proper remedy where mu-
nicpal corporation has been organized, even
though it is alleged that such organization was H.
legal and that il was not so organized in conform
| ity TO the law.
2 When franchise or an office is usurped
an injunction will not lie to prevent such usurp-
| alton, even though the respondents have not en-
| tered upon the duties of their office The rem
| edy is at law, by quo narrdnto, to be invoked
after entry into, or exercise of authority under
and by virtue OF their election or appointment.
Judgment reversed and bill dismissed
T. +. Wilson, for Appellants; Alex. St Clair
Abrams, for Appellees
| Edmund p Bacon, Leonard F. Andrews and
| Alfred B. Bidwe Plaintiffs in Error, VS.. The
State of Florida Defendant in Error-Manatee
county.
| NANNALKENBURGH, j..
l. An accOmplice is competent witness, and
a conviction may be had upon his uncorrobora-
ted testimony il it satisfies the jury beyond
| reasonable doubt.
2 There is no such nf1cxbe rule of law as
| that no person can be convicted on the testimony
of an accOmplice unless cOrrob0rated by other
evidence. II is a question for the jury who pass
upon the credibility of an accomplish rs they
do upon that of every other witness. The state
ments of the accOmplice should be received with
great caution, and courts should always so advise
|
and the jury are convinced of its truth, they
should give to it the same effect as would be
allowed 10 that of a witness who is in no respect
implicated in the O fence.
3. The good character and reputation of de-
fendant among his ueghbOrs in the community
in which he resides, or has recently resided, is of
value, especially in doubtful cases, and some
times will create doubt, when without such
evidence none would exist. Such evidence, how
ever, is intended for the consideration of the
jury, and it is for the jury alone to determine
whether, when considered with the other evil
dcnce in the case, it creates reasonable doubt
as to the defendants guilt
f. The defence of aliJi is decisive when duly
substantiated. 1t must include and cover the
entire time when the presence of the accused
was required to commit the criminal act charged.
The evidence to support it should be carefully
considered, and must be such as TO satisfy the
jury that the crime could not have been com
| nutted by the person thus proving an Glt6t.
,. l nucr ordinary circumstances new trlal
| will not he granted, on motion of defendant
convicted in a criminal case, on the ground that
n CO defendant tried at the same time and &C
quilted, was a material witness for the convicted
defendant. Under some circumstances, as when
the judge believed the verdict to be against the
truth, and against the weight of evidence, new
trials have sometimes been granted for such
reasons
6. \ motion in arrest of judgment, is not a
| proper remedy for wrong verdict.
Judgment affirmed.
Hartridge * Young and ]. b. Wall, for Plain
lifts in Error Attorney General for Defendant
in Error
S. w. Bush, Trustee Appellant, VS.. Charles s.
Adams Admir-, Appellee-Duval county.
RANEY, j.:
/. Ii the part of an answer excepted to is rele-
want or can have any influence in the decision
OF the suit either to the subject matter of the
controversy, the particular relief to be given, or
| as To the costs ii will not be held impertinent.
2 An exception for impertinence must be sup
ported in toto and will Tail if it covers any part
of the answer which is relevant and material
3. An exception for impertinence cannot be
taken to some OF the material allegations of par
icular defence, and exclude other material aver
ments of the same defence. All the material al
legations or paragraphs of the same defence must
stand or fall together.
4. Allegations of an answer will not be struck
oNt rs impairment, unless it is especially clear
that they are wholly lmmaterial irrelevant
Where they are not clearly impertinent they
| should be retained, and the court may do JUS
ticc between the parties in the imposition of
costs, at a subsequent stage in the cause.
s. Where person mortgages his land to secure
The debt of another and dies and the land is an
asset of his estate, the mortgage is within the
| statute OF n0n-ctdins, and must be presented to
the administrator or executor within the s.atu-
tory period TO avoid the bar Of such statute
| gage.
G. The tendency of suit of foreclosure at The
death of such mortgagor is not a presentation or
exhibition of The claim, within the meaning of
the statute OF n0n-cLItm nor does rcvivor Of
the suit against the personal representative after
the statutory period has run, constitute IA legal
presentation, no effort ~ rcviving having been
male within such period.
T. Ii Il vendec of land, remaining in possession,
buys in an outstanding incumbrance, he will not
he permitted to set up an adverse title under it.
| The purchase enurcs TO the benefit of The ven
doris title, and the vendce can only abale the un-
| paid purchase money, or in case he has paid this,
recover the amount he has expended by action
| on the covenant broken or other proper remedy.
! Affirmed
Geo. Wheaton Deans, for Appellant; A. W.
| Cockrell Il Son, for Appellee.
State ex rel, Citizens Gas Light Company, Re-
ator vs.. The Mayor and Aldermen ot the
City of Jacksonville, Responlenls-M
damus
| RANEY, j.:
| 1. If an alternative writ of mandamus shows
] - "a