The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1892-02-13
the vouchers for all claims audited by him
ard Tho lar M also nrnuidna that all accounts

and the law also provides that all accounts
against a county shall be approved by
the county commissioners before they
should be audited by the clerk, warrants
or orders in favor of third parties issued
by the clerk under his seal of office directed
to the county treasurer, and expressed upon
their face to be "chargeable under head OF
county expenditures" or to be payable "Oul
of any money in the treasury appropriated
for county purposes" are 1'rinsa facae valid
claims against the county.
2. Mandamus lies against county treas
urer to compel the payment of valid war
rant or order drawn on him as such treas
urer, and Tor the payment OF which he has
the necessary funds applicable thereto.
g. Where an alternative writ OF manda.
mus, brought to compel the payment by a
county treasurer of cOuuty warrants, shows
that warrants, regular upon their face,
were issued by the proper officer, and for
value received, and that the treasurer has
the funds for their payment, it is not de-
murrable.
4. The fact that an ordinary action at
law obtains against county on county
warrant, does not constitute a specific and
adequate remedy avoiding mandamus for
its payment in favor OF the holder of such
| warrant against county treasurer having
the necessary funds lor Its payments.
5. A return to sufficient alternative
writ of mandamus must state all the facts
relied upon by HE respondent with such
precision and certainty that the court may
be fully advised Of all the particulars nee
essary to enable it to pass upon the suffi-
cienty OF the retur1: and its statements
cannot be supplemented by inference or in.
lendment. y return that the warrants
whose payment Is sought are spurious, il
legal and void ie, being mere Conclusion
OF law, insufficient, as likewise is q return,
that the warrants were issued and are held
| without valuable consideration, such state
ment being made not as positive aver
ment of such fact, but as an inference or
| argument drawn from or based upon al
| legations which do not support the infer
| encc or argument
9. Assuming that an order by board of
county commissioners, Guiy entered upon
its records, authorizing the issue of county
| warrants, to be necessary to the validity of
warrants OF which payment Out Of the
county treasury is sought by mandamus, a
return stating that no such order appears
upon the records of the board, is INSULT
Gent 1t is not incompatible with the tact
that such an order was duly made and en-
| tered upon the records, nor tantaMOunt to
| III allegation that no such order was ever
passed and entered
| 7. An order of a board of county COM
mlssioners requiring that county warrants
| previously issued shall be presented for re-
examination by the board, and providing
that all such scrip not presented by a
stated day shall be of no effect, or "repu.
dated" is, though published according to
the terms of the order, no defense to the
payment OF warrants not presented.
8. The statement of a return to an alter
| native writ of mandamus should be posi-
tive, and not On information aud belief.
8. The delay of the relatOr in instituting
| proceedings by mandamus should be taken
advantage of by proper pleading in the
trial court. 1t cannot be urged primari-
ally in the appellate court.
Judgment affirmed
Minor S. Jones, for appellant; Thomas
+. Wilson, IN pro. per-, for appellee
Green w. Hodge, Plaintiff in Error, VS..
The State OF Florida, Defendant in Err
ror.-AIar! on county.
RANEY, G. j.:
l. The oath or affidavi;s required bv
the act o. March 18th, 1879, 6 II, D. AGO
McClelan's D,ges } to satisfy the court
that the testimony OF witness whose de-
position it is desired to take under com
| mission is material and necessary to the
| defence Of the accused, must present facts
naturally and reasonably calculated IL
satisfy the judgment of the court thai
| such testimony is material and necessary
10 the defence An affidavit of counsel |
stating that he is acquainted with the case
Of the defendant, and what is necessary
| for his defence, and verify believes that
the testimony" of named witness, to |
whom heterogeneous calling for his opin- |
ion as an expert and accompanying the |
| motion for commission are addressed,
sis necessary, material and important 10 |
the defendant" is not sufficient.
g. A plea of not guilty is waiver OF |
| the right to plead in abatement in q crimi- |
nal cause.
appellate court of ruling Of trial court |
refusing to permit the withdrawal of the |
general issue for the purpo2e OF pleading |
IN abatement of the indictment, it will not |
be done where the accused has waited |
,wenty-one months after the finding Of the /
indictment, and there has already been q |
trial on the merits, and the period barring |
a new indictment has elapsed.
4. A charge to jury cannot be made |
part OF the record except by bill Of ex-
ceptions, or by being signed, sealed and |
fled by the circuit judge, in accordance
with the act of March 3D. 1887, sec. &C. |
p. 1873. McClel.an's Dlgest,) and will not
be reviewed by the appellate court when |
not made part of the record.
g. A verdict may be received and en- |
tered ON Sunday; but it seems that judg- |
ment or sentence cannot be lawfully rem
dered on that day. The former proceed |
ing is not ground for new trial.
g. The failure of The record to show that |
the judge asked prisoner before pro-
nouncing sentence upon him, if he had |
anything to say why the sentence of the !
law should not be passed upon him, is not |
ground for setting aside the judgment,
where the conviction is not OF a capital |
offence.
Judgment affirmed