Index to Ninth Volume. the Chancellor, might probably have produced a different determination. Owens vs. Administrator of Wm. Forbes, deceased, 325. 13. Where the face of a bill in chancery shows a case barred by the statute of limitations, and no circumstances are stated which take the case out of the operation of the act,advantage of it may be taken on a motion for an injunction. 14. In order to arrest by injunction claims established by a decree of a Court of Chancery, it must be shown that the applicant has a prior right which he has not lost by laches. City of Apalachicola vs. the Apalachicola Land Co. 341. 15. Relief will be granted in equity against a judgment at law when the defence could not at the time, or under the circumstances, be made available at law, without any laches of the party. 16. So, if a fact material to the merits should be discovered after a trial, which could not by ordinary diligence have been discovered before, the like relief will be granted. Baltzell & Chapman vs. Randolph, 366. 17. To authorize the Chancellor to retain a bill in order that he may give general relief, where the special relief sought has been denied, it is necessary that he shall have acquired cognizance or gained jurisdiction of the cause. 18. The opinion of the Chancellor, delivered in the court below, forms no part of the record of the case, and cannot be read or referred to in the Supreme Court. McLeod vs. Dell, 427. CIRCUIT JUDGE 1. The Circuit Judge must be presumed to have done his duty in the absence of proof to the contrary. Duggan vs. The State, 517. CONTINUANCE 1. Where a party applies in a civil suit for a continuance for the term on the ground of the absence of a witness, it must be shown by affidavit that the witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission; that he is absent without the consent of the party, directly or indirectly given; that he resides in the county where the suit is pending, or if out of the county,good cause must be shown for not taking his deposition; that the testimony is material; that the applicant expects to procure said testimony at the next term; that the application is not made for delay only; that he cannot safely proceed to trial without the evidence of said witness; and the party must further state the facts expected to be proved by said witness. 2. It is not error for the court to refuse to allow a motion for the continuance Index to Ninth Volume. of the cause, where the affidavit in support of it does not come up to the above rule. Harrell vs. Durrance, 490. CRIMES 1. The common law of England in relation to crimes is adopted and declared to be in full force in this State, excepting only so far as the same relates to the modes and degree of punishment. Ammons vs. The State, 531. DAMAGES 1. The Circuit Court, on a motion for a new trial on the ground the jury have given excessive damages, should look into the evidence and see whether the damages are excessive, and if so, either grant a new trial,or grant a new trial unless within a time to be fixed by them, the plaintiff remit so much as shall reduce them to the true sum. Harrell vs. Durrance, 490. DECREE (See Chancery,) 325. DEED 1. A deed will take effect only from the date of the delivery, actual or constructive. See Escrow, 60. DECLARATION— 1. A party need not set forth the very words of a note in the declaration; he may, if he chooses, set forth what he considers the substance and legal effect of the note in this respect, and where he professes to give the legal effect and operation of the instrument declared on, and he does not make the legal effect, there is no variance. Harrell vs. Durrance, 490. DELIVERY (See Donalio Causa Mortis,) 359. DEPOSITIONS 1. It is not error in the Circuit Court to refuse to order a plaintiff to read on the trial depositions taken by him, though said depositions are on file and have been opened. 2. The defendant may read such depositions as testimony on his own behalf, if he desires it. Broughton vs. Crosby, 254. DESCENT— 1. By the rules of descent in Florida, real estate descends, where there are no children nor their descendants, to the father, excepting in cases where husband is heir of his wife. McGee et als vs. Doe ex dem. Alba, 382. DISTRIBUTEE 1. Under the policy of the several statutes regulating the administration of estates, the rights of creditors and distributees stand upon a different footing. While the statute of non-claim will operate as an absolute bar to the former, it will not prevent a recovery by the latter. Amos vs. Campbell, 188. DONATIO CAUSA MORTIS 1. Delivery of the thing donated is essential to the perfection of the gift, whether it be made inter vivos or causa mortis. 2. To determine the sufficiency of a delivery,reference must be had as well to the nature of the property as to its locality. Index to Ninth Volume. • 2. Acts which would be insufficient to constitute a good delivery of inanimate or, unintelligent property, might, under the accompanying circumstances,be deemed altogether sufficient to perfect the delivery of a slave possessed of understanding and volition. 4. Where a female slave is in the chamber of her master, who is lying in extremis and he directs a deed to be drawn up,giving her and her children to a person present at the time, this is a good delivery causa mortis of the mother and her children, though the children were absent from the chamber at the time of the gift. 5. And the fact that the mother and children continued to remain at the residence of their former master for a short time after his decease, which occurred within a few hours after the execution of the deed,did not operate to defeat the gift. Powell vs. Leonard, 359. DORMANT PARTNER 1. If a dormant partner shares in the profits of a business, he is liable at law for all contracts within the legitimate sphere of that business, by and with the firm. Griffin vs. Orman, 22. EJECTMENT 1. A judgment in ejectment is conclusive against the defendant for all profits which have accrued since the date of the demise, stated in the declaration in ejectment, but if the plaintiff sues for any antecedent profits, the defendant may make a new defence. 2. The right to mesne profits is a necessary consequence of a recovery in ejectment, and the recovery in ejectment by an incorporated town of an easement which is a real franchise holden by the town under provisions of her charter for the benefit of all the citizens, is no exception as to the right to mesne profits during the occupancy of their property. 3. A plaintiff in ejectment cannot, after recovery, turn this action at law for mesne profits into a suit in equity, and bring a bill for an account of the profits, except in the case of an infant or some other very particular circumstances. The "particular circumstances" excepted in laying down tais rule, extend to all cases which involve an equity which the plaintiff cannot make available at law. 4 A suit in Chancery lies for an account of mesne profits after a recovery in ejectment,if the bill shows a right to discovery and relief in a matter incident Index to Ninth Volume. thereto, and the court having jurisdiction for one purpose may finally settle the whole merits of the cause. City of Apalachicola vs. Apalachicola Land Co., 340. 5. The rule that a plaintiff in ejectment must rely upon the strength of his own title, and not upon the weakness of his adversary's title, is not to be understood as requiring that he shall be compelled, in the first instance, to trace his title back to the original grantor; but only that he shall exhibit so much as will put the defendant to the support of his possession, by a title superior to one of a mere naked possession. 6. A plaintiff in ejectment is required, in the first instance, only to show a legal title, and a right of entry under it, in order to drive the defendant to an exhibition of a paramount title. Hartley vs. Ferrell, 374. EQUITY (See Chancery.) ESCROW 1. Where a deed of mortgage was delivered to a third person, to be kept by him during the pleasure of the mortgagor, and subject to his further orders: Held, that it was an Escrow, and that the third person was a mere depositary. 2. It is essential to the character of an Escrow that it be delivered to a third person, to be delivered to the obligee or grantee upon the happening of some event or the performance of some condition by him. 3. It is not a universal, or even a general rule, that the doctrine of relation attaches to instruments of this character. It is only allowed in cases of necessity, to avoid injury to the operation of the deed, from events happening between the first and second delivery. Lobat vs. Kipp & Young, 60. EVIDENCE (See Parol Evidence.) 1. Where notice under the statute (Thom. Dig., 343, § 1,) is given to the adverse party in a suit to produce books or papers, the regular time to call for the production is not until the party who requires them has entered upon his case before the jury, until which time the other party may refuse to respond to the notice. 1 2. Before the court will proceed to give judgment against a party failing or re fusing to produce the book or paper demanded, it must be satisfied that the book or paper is in the possession or under the control of the party and that it is material to the issue. 3. Where the book or paper demanded is only a link in the evidence, the party Index to Ninth Volume. giving the notice must show its materality by the prior introduction of other testimony. Sinclair vs. Gray, 71. 4. Counsel have the right to embody in their motions to quash or in arrest, what statements they please, but no court can regard such statements as evidence. 5. The proper way to get facts before an appellate court in such form as to render them evidence, is to make a statement of them in the shape of a bill of exceptions, and then get the Circuit Judge to sign and seal it and order it to be made a part of the record. Broward vs. The State, 422. 6. Where in a criminal case there is conflicting evidence, and attempt made on the trial of the cause to impeach a witness, which failed, the jury giving credit to the testimony of the witness, this court will not review their action. Ammons vs. The State, 530. GANANCIAL RIGHTS 1. The ganancial rights and privileges of husband and wife, as to property acquired during coverture, under the Spanish law in force in Florida at the exchange of Flags, have been secured, and will be acknowledged in our courts. 2. Those rights and privileges declared. McGee et als. vs. Doe ex dem. Alba, 382. GARNISHEE (See Attachment,) 160. GRAND JURY 1. The grand jury must consist of men possessing the qualifications prescribed by statute, and one incompetent Grand Juror will render an indictment void and of no effect: Provided exception thereto is taken before issue joined and trial on said indictment. 2. If a qualified or incompetent person is returned upon the Grand Jury, he may be challenged by the prisoner before the bill is presented; or after the finding the defendant may plead it in avoidance. 3. Under the provisions of the statute of this State, a person over sixty years of age is not a competent Grand Juror. 4. Where a Grand Juror is asked by the court, in common with all the persons drawn as Grand Jurors, whether he is over sixty years of age, and remains silent and takes the oath of Grand Juror, it is an acknowledgment he is under sixty years of age, and he will be so considered until the contrary is clearly established by evidence. Craven Kitrol, Plaintiff in Error, vs. The State, 9. GUARDIAN 1. A father can appoint a guardian for his children during any part of the infancy of the child, "by deed in writing or last will and testament," as pre |