The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1889-07-02
HEAD NOTES TO DECISIONS OF THE
SUPREME COURT OF FLORIDA.
June Term. A. ID. 1889.

George f. Wilson, Appellant, VS.. Dexter Hunter,
Appclee-Duval county
MITCHELL, j..
After n full trial of a cause, and after YER
dict upon the matters embraced in the declara-
ton and pleas the absence of a simikster 10 plea
is not ground for reversal, the SsnIster not hav-
ing been insisted upon by the opposing party or
required by the court.
8. Where B. agreed to erect house for W.,
and IT. furnished the lumber to build the house
upon WIS agreement to pay him for the same
when placed on the cars, and the bill therefor
was presented 20. KID" by b.. and II. put the
lumber on the cars as per agreement, and W.
paid 5000 the bill presented without being
80. X d" by B.. but refused to pay the balance
of the bill for no other reason than that II was
not "O KID" 10y b: Held, that w. was liable for
the balance Of the BILL
g. 1t is not error for the court to refuse to
charge upon the assumption Of fact that does
not exist.
Judgment affirmed.
Fletcher & Wurts, tor Appellants j. w. Ar
chbald and r. B. Archibald, for Appellees
George Lewis, Executor of the last will and tes-
lament of James d. Wescott, deceased, APP
pcllant, VS.. Daniel 3. Megnniss, Jr., Appellee
Leon county.
RANEY, c. j..
1. Circuit Court Rule 81 provides that the
bill Of exceptions shall be made up and signed
during the term Of the court unless by special
order further time is allowed. The time allowed
by an order will be held to mean time in addi-
ton to the remainder of the term Of the court,
unless there is something in the order or record
evidcncing contrary intent.
,. An order of the Circuit Court allowing an
Appellant thirty days in which to make up his
bill Of EXCEPTIONS means hirty days subsequent
20 The adjournment OF the term
Motion to strike bill OF exceptions is denied.
Fred T. Myers, for motion r. w. Williams,
contra
William Hicks, Plaintiff in Error, vs. The State
Of Florida, Defendant in Error-Escambia
county.
MITcHEII, j.
/. Where there is conflicting evidence in a
case it is the duty Of the jury, il they can to re-
c0nCilc The conflict, bat ii they cannot do So it is
their duty to discard any evidence they do not
believe, and to render their verdict upon the evi
dcnce hey may bell, TO be true.
, The verdict of u iuIy viii not be set aside
upon Tie ground that It IS against the weight Of
evidence, unless The pre0oN3cranCe Is such that
j. must have been produced hv considerations
"thcr tnau due respect 70 He evidence.
3 Malice, and :h4 generalization necessary to
ba pr0v,5 to show murder in the first degree,
my hc lr9ifiMa'clV inferred b. the ivy, ~ a
question o. .t", from TIE circumstances 0. the
t. AZ app'icp'ion Tot continuance Is ALWAYS
n8.re-~ea 81 'ae sound discretion u he court,
:.a such discretion Ni. n,t bt c)n'rollc b. the
"l"-.}'rc cnpr', unless J. !pprtr5 hat ine court
is..n.N abG-cl is 1NnlisF, verfa11 the rights
@. tie p rhymes awe bcrn purified.
D. Where p:rir i on tlt.. charged with nnr-
der III )hr tr-t degree, il is H." l1,y 81 the court
t. cher," the jarv Is TO tae !i;i:rrn' degrees or
@ra !c~ 81 fiomic r. appN::tb % the evidence in
lt.t i =. - N = no 80