Index to Ninth Volume. PAROL EVIDENCE 1. The rule of law briefly expressed is, that "parol contemporaneous evidence is inadmissible to contradict,or vary the terms of a valid written instrument" Under this rule, all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed or afterwards, is rejected. 2. Parol evidence is sometimes admissible where the language of the instrument is applicable to several persons, to several species of goods and cattels, &c., or the terms be vague and general, &c. Harrell vs. Durrance, 490. PARTNERSHIP 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. 2. A suit and judgment recovered against two of a firm is not a judgment against a third member not named in the pleadings. 3. Creditors cannot get relief in a Court of Equity until they have judgment at law and return of nulla bona, or what is equivalent thereto, in the fi. fa. 4. Creditors of a partnership have no lien upon the goods sold after a delivery thereof, and on suits by them they execute their judgment against the effects of the partnership and any other effects of the individual members parties to said suit—until then they cannot prevent the partners from bona fide selling and transferring the same even to one another. 5. As a general principle, each partner of a firm has a specific lien on the partnership stock,not only for the amount of his share, but for moneys advanced by him beyond that amount for the use of the co-partnership, and that this lien extends to property purchased with the partnership funds as well as that standing in the partnership name; but where they bona fide sell and transfer the property to one of the firm, with intention that the effects assigned and sold are to be appropriated to the private use of the purchasing partner, then this lien is lost and the property ceases to be partnership property. Griffin vs. Orman, 22. PENSACOLA & GEORGIA R. R. CO. 1. The acceptance by the Pensacola & Georgia Railroad Company of the provisions of the act of January, 1855, to provide for and encourage a liberal system of internal improvements in this State, did not materially alter or change the original charter of said Railroad Company. 2. Nor did such acceptance materially enlarge or dimish the power con Index to Ninth Volume. ferred by the original charter upon the board of directors of said company to locate the route and fix the terminal points of the road. 3. The power conferred by the original charter upon the board of directors to locate the road and to fix the terminus thereof on the boundary line between the States of Florida and Georgia, is not infringed by the act of 15th December, 1855, amendatory of the original act of incorporation of the Pensacola & Georgia Railroad. Calvin J. Johnson vs. Pensacola & Georgia R. R. Co. PERSONAL PROPERTY 1. A transfer of personal property, including choses in action, rights and credits, valid where made, will be recognized by our courts, provided it be not contrary to good morals nor repugnant to the policy and positive institutions of the State. 2. There are no laws in Florida prohibiting a citizen of another State from a free disposal of his personal property, situated here, for honest purposes and without fraud. Walters & Walker vs. Whitlock, 86. PERPETUITIES 1. A recognition of the rule respecting "perpetuities," to-wit: "a life or lives in being, and twenty-one years after," is not in conflict with the 24th clause of our "declaration of rights." McLeod vs. Dell, 427. PILOTAGE 1. The second section of the act of 1859, entitled "An Act to be entitled an act to amend an act to regulate Pilotage at the port of Fernandina, in the County of Nassau and the port of Cedar Key, County of Levy," was not in violation of the constitution of the United States, nor of any law nor treaty made in pursuance or under the authority of the constitution. 2. The holding of a license to pilot,by a resident of this State, from the authorities of the State of Georgia, is a statutory offence, and not an offence known to the common law therefore as no penalty is prescribed in the act creating said offence, the remedy is not by indictment. 3. The laws of the several States for the regulation of pilots "are enacted by virtue of a power residing in the States to legislate," and are valid, unless such legislation interfere with, or is contrary to an act of Congress,passed in pursuance of the constitution. Cribb vs. The State, 409. PLEADING - 1. Where the defendant fails to tender a defence to any particular count of the declaration, the plaintiff is entitled to a judgment upon that particular count as for a default; but such judgment must be given by the court-it is not the subject of instruction to the jury. Index to Ninth Volume. 2. It is a settled principle that none but a party holding the legal title to an instrument can maintain an action upon it in a common law court; and to obtain a recovery upon the same, he must establish such title by competent evidence. Sinclair vs. Gray, 71. 3. When a demurrer to plea is sustained, with leave to defendant to plead over and he does plead over, he cannot assign the sustaining of the de murrer as error. 4. It is the duty of parties before they go into trial to see that the pleadings are made up, and when they go willingly before the jury, they must, unless the contrary plainly appears, be considered as having waived all demurrers undisposed of, and all pleas, replications, &c., on which the issues are not joined. Judge vs. Moore, 269. 5. In suits brought in the name of A. for the use of B. the nominal plaintiff is A; the real plaintiff is the person for whose use it is instituted. 6. The assignee can only bring suit in the name of the nominal plaintiff, where there is a legal assignment of the right of action, and by such assignment a right to use the name of the assignor. Where in such suits the declaration does not disclose a legal assignment in the real plaintiff, of the right of action it will be held bad on demurrer thereto. Kendig vs. Giles, 278. 7. It is an admitted rule of pleading that where the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff than of the defendant, in that case the declaration ought to state that the defendant had notice of the same. 8. And where a special averment of notice is necessary, the averment must be proved. Alabama & Fla. R. R. Co., vs. Rowley, 508. 9. Where the pleadings are in such a defective condition as to make it manifest that the jury who tried the cause could not have had an intelligent apprehension of the issues to be tried, the judgment will be reversed, and the cause remanded for a new trial. Pearce & Son vs. Jordan, 526. PROMISSORY NOTE 1. Where the promise is to pay interest from day, in a promissory note, it draws interest from the date thereof, and an averment "with interest from date," gives the true legal effect and operation of the instrument. Harrell vs. Durrance, 490. Index to Ninth Volume. PUBLIC LANDS 1.An indictment will lie against a trespasser on the public lands of the state of Florida under the act of January 13th, 1849. RECORD Broward vs. The State, 422. 1. The record being in fieri and under the control of the court during the entire term, its completion at any time before the final judgment relates back and heals previous informalities. Ammons vs. The State, 530. RAPE 1. Where a slave is indicted for the crime of rape, he cannot be convicted of a simple assault,the Circuit court having no jurisdiction of that offence when committed by a negro or mulatto. Whether such conviction can be had in the case of a white man-quaere? 2. On a trial for the crime of rape,it is not sufficient to charge the jury that “if a man have carnal knowledge of a woman against her will, he may be convicted." The charge should be "forcibly and against her will." A 3. Although in a strictly legal point of view, force may be implied from a want of consent, yet in common parlance such identity does not exist, and jurors ought to receive their instructions on the law in language that they can understand. Cato, a Slave, vs. The State, 163. SHERIFF 1. Where a Rule Nisi was taken against a Sheriff, calling upon him to show cause why he should not be compelled to pay over the amount of an execution in his hands, if it shall be made to appear that he had not made the money thereon, the court has no authority to give summary relief in the premises, by ordering him to pay the money or to stand committed. 2. The plaintiff in an execution has a right to require the same to be returned into office at any time, and for a false return his only remedy against the officer is by action. 3. Where the money on an execution is shown to have been collected, the plaintiff in execution is entitled, under the provision of the 7th section of the act of 1833, to proceed summarily against the officer, by motion to the court. McLeod vs. Ward, Close & Co., 18. SHERIFF'S SALE 1. A purchaser at a Sheriff's sale has only to show his deed, the execution under which the land was sold, and prove title in the defendant in execution, or possession since the rendition of the judgment; and the onus probandi is cast on the opposite party. Hartley vs. Ferrell, 374. Index to Ninth Volume. SLAVES 1. The general system of legislation in this State has been to keep up a distinction between the punishments to be inflicted on white persons and slaves for the same violation of the criminal law, and also to keep up the distinction in statutory offences. White men and slaves will not be considered subjects of a common statute, unless clearly manifested. 2. If, from a view of the whole statute, together with the history of our legislation, the intention of the legislature to include slaves is manifest, they will be considered as included and held responsible in the word "person." 3. The Legislature of this State did not include slaves in the first and second sections of the act of 27th February, 1839, making it a statutory offence for any person to keep a gaming table, and prohibiting betting and playing at such table. Murray, a Slave, vs. the State, 246. 4. The 8th section of the act of 5th February, 1824, was repealed as to East Florida, with the exception of the county of Columbia, by the act of the 14th February, 1835. Donaldson vs. The State, 403. STATE SOVEREIGNTY 1. A State being sovereign and independent, possesses inherent right and power over her resident citizens. Under this power she had a right to declare what is a public grievance, providing such declaration does not conflict with the constitution or of any act of Congress passed within the scope of the constitutional power of Congress ;) and prohibit one of her citizens residing within her jurisdiction (while he does thus reside,) from holding and exercising a license or office from a sister State or any foreign power. vs. The State, 409. STOCK RAILWAY Cribb 1. The principle of law which will not allow the terms of a written contract to be varied by parol evidence, is as applicable to subscription for railway stock as to any other written contract. Johnson vs. Pen. & Ga. R. R. Co., 299. SUBROGATION 1. The equitable doctrine of subrogation or substitution to the place of the creditor without any agreement, is applicable in cases where the person advancing money to pay the debt of a third party stands in the situation of a SURETY, or is compelled to pay it to protect his own rights. Griffin vs. Orman, 23. SUPREME COURT. 1. It is within the province of the Supreme Court, upon appeal or writ of error, to look beyond the bill of exceptions and to consider errors apparent upon the face of the record; but to induce the court to reverse a judgment for an |