Index to Ninth Volume. Appeal affirming a similar order or decree of an inferior court. Griffin vs. Orman, 22. ASSAULT— 1. An assault with intent to kill is not an offence known to the common law, but by statute of this State is made a misdemeanor. 2. There is a difference between an assault with intent to kill and an assault with intent to murder. An assault with intent to kill may exist where the party intends only such killing as amounts to manslaughter. 3. Whether a person indicted for an assault with intent to kill,had such intentat the time of the alleged assault,is a question of fact for the jury to decide, and in deciding that question the jury ought to act upon those presumptions which are recognized by the law so far as they are applicable, and the intent, like malice, may be either expressed, or implied and presumed where facts authorizing the presumption are proven. 4. The charge of the court shall be confined to matters in issue. The court is not bound to instruct the jury, at the defendant's request, that if H. had killed W., and the homicide would have been manslaughter and not murder, that they ought not to find him guilty of the assault with intent to kill." Hall vs. The State, 203. 5. An assault and battery with intent to kill, is an offence not embraced in the criminal statutes of Florida, nor is it known to the common law of England. 6. Under the statute of this State, assault and battery, and assault with intent to kill are offences of equal grade. the 7. A person indicted for an assault with intent to kill, may, if the evidence does not support it, be convicted of an assault, which is by statute made only minor offence of a kindred character. 8. It is error for the jury in this State, to find the defendant guilty of an assault and battery, under an indictment for an assault with intent to kill. Warrock vs. The State, 404. ASSIGNMENT con 1.A trasfer of personal property, including choses in action, rights and credits, valid were made, will be recognized by our courts, provided it be not trary 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 free disposal of his personal property, situated here, for honest purposes and without fraud. Index to Ninth Volume. 3. A voluntary assignment by the owner to an assignee in trust for the benefit of creditors,made in the State of South Carolina and valid by the law of that State, and which, if made in Florida with the intention of being used here would have been considered valid in this State, will operate upon property situate in this State. 4. In such assignments, the rule of transfer is the same in all choses in action, whether the same be an open account or promissory note. 5. Notice to the debtor is not necessary to a delivery and transfer of an open acocunt thus assigned. 6. Fraud for want of delivery of possession of choses in action by the assignor to the assignee under such assignments is a question of fact to be determined by a jury in a cause instituted in common law courts. 7. An assignment for the benefit of creditors, executed in another State, valid by the laws of that State and valid by the laws here, will be enforced by the courts of this State against a subsequent attachment, although said attachment may be issued by one of our own citizens, and an open account due from a debtor to the assignor attached, and garnishee process issued previous to notice of said assignment to said debtor,unless notice is required to be given by the terms or necessary effect of the assignment itself. 8. Notice to the debtor of the assignor in such case (unless required to be given as aforesaid) is only necessary to prevent the debtor from dealing with the assignor so as to affect the rights of the assignee. 9. Where debtor of an assignor is garnished by virtue of an attachment issued subsequent to the assignment, and receives notice of the assignment, pendente lite, he should avail himself of the assignment in discharge by answer to the garnishee. Walters & Walker vs. Whitlock, 86. 10. B., without any writing whatever, but verbally and by word of mouth only, assigned, transferred and delivered to three of his creditors, constituting the firm of C., M. & Co., a package containing notes, drafts, &c., for near $30,000, in trust, to collect and distribute the proceeds, as far as they would go, pro rata, between the assignees and his other "Charleston creditors," making no conditions or reservations in his own favor: Held, that this assignment was valid and irrevocable from the time of its acceptance by the assignees; that the privity or consent of the creditors was not necessary; that such assent will be presumed till the con Index to Ninth Volume. trary appears. Matilda Brown vs. Chamberlain, Miler & Co., 464. ATTACHMENT 1. Where an attachment was levied upon the real estate of an absent debtor, and he dies pending the suit and before final judgment: Held that in a contest between a mortgagee (seeking to foreclose a mortgage on the same property which was executed after the date of the levy) and the purchaser, under the judgment obtained in the same suit against the administrator, the lien of the attachment survives, and the purchaser will be protected in his title. 2. But whether such lien survives, so as to prevail against a creditor, who is seeking to obtain payment of his debt, under the preference given by the statute-Quaere? Loubat vs. Kipp & Young, 61. 3. A judgment against a garnishee in a suit commenced by attachment is annulled by the dissolution of the attachment even after plea pleaded. Mitchell & Savil vs. Watson, 160. BILLS OF EXCHANGE 1. Although the drawer has no funds in the hands of the drawee,yet if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of an agreement or arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party to the bill, then in every such case he is entitled to strict notice of the dishonor. 2. An agent is entitled to notice of the dishonor of his bill on his principal, though he had no funds in the principal's hands,and the payee had no knowledge that he was acting as agent. 3. The payee of every draft or bill takes it upon the implied condition that he is not to hold the drawer liable without giving him notice of the draft or bill he dishonored, and if such notice be not given, it is at the peril of the payee. Pitts vs. Jones, 521. BOOKS AND PAPERS.-(See evidence.) 71. CATTLE 1. In a written bill of sale of cattle, where the marks and brands of the cattle are expressed, the maxim, "expressio unius est exclusio alterius," (the express mention of one thing implies the exclusion of another,) is applicable. The presumption is, that having expressed the marks and brands of some, they have expressed all which they intended. Harrell vs. Durrance, 490. Index to Ninth Volume. CHARGE OF COURT 1. If the court assumes to charge the jury, it ought to charge on the whole law but if a party desires to avail himself of any failure or omission in this respect, he must call the particular point to the attention of the court, otherwise he will not be permitted to assign the omission for error. Cato, a slave, vs. The State. 163. 2. The charge of the court should be confined to matters in issue. The court is not bound to instruct the jury at defendant's request. "That if H. had killed W., and the homicide would have been manslaughter and not murder, that they ought not to find him guilty of an assault with intent to kill." Hall vs. the State, 203. 3. It is not error for the court to refuse an instruction not applicable to the issue joined or the evidence in the case. Judge vs. Moore, 269. 4. The Supreme Court will always reverse a judgment in a criminal case where it shall appear that the Judge charged the jury upon the case but did not reduce his charge to writing, and file it in the case, according to the 8th section of the act of January 4, 1848. 5. The record stated that the prisoner was led into court by the Sheriff, "whereupon came a jury, &c., who being duly chosen, tried and sworn, after hearing the evidence and argument of counsel,and under charge of the court, retired to consult of their verdict," &c. Held that this language does not furnish evidence that the judge charged the jury within the meaning of the above act. 6. Remarks by the Judge to the jury touching their behavior on retiring to consult of their verdict,as that they shall not speak to any one or suffer any one to speak to them do not constitute a charge within the meaning of said act. Duggan vs. The State, 516. CHANCERY 1. After a defendant has answered a bill in Chancery and submitted himself to the jurisdiction of the Court without objection,it is too late to insist the complainant has a perfect remedy at law,unless the Court of Chancery is wholly incompetent to grant the relief sought in the bill. 2. A Court of Equity will entertain a bill of quia timet in proper case filed for the purpose of enforcing a specific performance and preventing a possible future injury, thereby quieting men's minds and estates, &c. 3. Equity may decree the performance of a general covenant of indemnity, though it sounds only in damages. Index to Ninth Volume. 4. Chancery may order an instrument to be delivered up to be cancelled when it is void from matter appearing from proof taken in the cause, and will cancel agreements founded in fraud, imposition and misrepresentation. Griffin vs. Orman, 22. 5. There is no rule defining definitely what lapse of time will bar a purely equitable demand. Each case must depend upon its own circumstances. Amos vs. Campbell, 187. 6. In this State, all decrees in chancery, whether interlocutory or final, are not only by the practice of our courts, but by statutory provision, deemed to be enrolled when entered upon the minutes of the court. 7. A decree directing a reference to a master for the purpose of ascertaining any material fact in the case, is not a final decree, although it ascertains and determines all the equities of the case. 8. A bill of review lies only after final decree, and not upon an interlocutory decree. A bill in nature of bill of review, is not of use in this State, as all decrees are enrolled when entered upon the minutes of the court. 9. After an interlocutory decree is enrolled, the court will grant leave to file a supplemental bill, to bring forward newly discovered evidence, and grant a rehearing upon the same if the evidence is of such a nature, as were it a bill of review, would entitle the party to relief. 10. To entitle the party to relief in such cases, the newly discovered evidence must be relevant and material, and such as might probably have produced a different determination. The new matter must have first come to the knowledge of the party after the decree. The matter must not only be new, but it must be such as the party, by the use of reasonable diligence, could not have known; it must not be merely cumulative, nor merely corroborative or auxiliary to what is already in the case, but must establish a new fact of itself, decisive of the merits of the cause. 11. With administrators who are strangers to the transaction, and who have to look after evidence to defend the estate, the same stringency in ruling as to knowledge of facts, ought not to be exercised. 12. On application for leave to file an supplemental bill, and for a re-hearing, the Appellate Court can only consider the prior interlocutory decree, so far as to ascertain and enquire whether the new matter sought to be introduced is relevant and material, and such as had the same been before |