ation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and business." Affirmed.

SMITH et al. v. DEESON et al. (Supreme Court of Mississippi. Dec. 4, 1893.) MORTGAGES-POWER OF SALE-METHOD OF SALE. 1. Under a power to sell for cash, the trustee may properly, by notice, require that 10 per cent. of any bid shall be deposited when the sale is adjudged.

2. It is not enough, to set aside a sale under a power, that the land was sold in parcels, and not in solido, and that the beneficiaries' agent had made a map from which he read the descriptions of the parcels to the trustee, and used it in making his bids, without showing it to the other bidders, there being no evidence that any one wished or asked to see it.

Appeal from chancery court, Issaquena county; W. R. Trigg, Chancellor.

Bill by Lillie S. Deeson, executrix, and another, against Bolton Smith and another, to set aside a trustee's sale made under a deed of trust with power of sale. Decree for complainants. Respondents appeal. Reversed.

Miller, Smith & Hirsb, for appellants. Moore & Jones and W. D. Wilkerson, for appellees.

COOPER, J. The right of the grantor in a deed of trust or mortgage with power of sale, to the utmost good faith and fairness in the execution of the power, is undoubted, and should be upheld and rigidly enforced by the courts; but the mere fact that the enforcement of the legal rights of the beneficiary results in pecuniary loss to the unfortunate debtor cannot have the effect of annulling a sale impartially and fairly made according to the terms of the deed. We have carefully considered the circumstances relied on by the appellees in their attack upon the sale, and find nothing therein calculated to throw doubt upon its validity. The sale was, by the terms of the deed, to be for cash, and the requirement by the trustee that 10 per cent. of any bid made should be deposited when the sale should be adjudged was, under the circumstances, but a reasonable precaution to prevent the necessity of a resale at the expense of the grantors or beneficiaries. If any solvent and apparently honest bidder had been deprived of an opportunity to buy at the sale by reason of that requirement, and had applied to the trustee for a further reasonable delay that he might make good his bid, and that request had been denied, a different question would be presented, for it is the duty of the trustee to act as prudent and reasonable men would act if dealing with their own estates under like circumstances. But we think it is not only not shown that this notice of the trustee prevented any one

from bidding, but that it affirmatively appears that it did not. It is true that the witness Frank, being pressed by counsel thereto, stated that he was thereby discouraged from further bidding; but his whole testimony makes it clear that he was not, and that he desisted from bidding, as he says, because he supposed the beneficiaries in the deed would in any event overbid him. So, also, in reference to the fact so zealously pressed by counsel, that the land was sold in parcels instead of being sold in solido, and that Mr. Judah had made a map of the lands, from which he read the descriptions of the several pieces to the trustee, and used the map in making his bids, without exhibiting it to the persons assembled at the sale. There is no hint in the evidence that any one desired to see the map, or requested it to be shown. On the contrary, Mr. Judab stated that he would willingly have permitted it to be seen by any one desiring to bid for any of the parcels of land as they were offered. It is impossible for us to review in full all the evidence found in the voluminous record, nor is it necessary so to do. We have given it full consideration, and are of opinion that nothing is shown by reason of which the sales should be vacated. The decree of the court below is therefore reversed, and the bill dismissed.

RUSSELL v. MARKS.

(Supreme Court of Florida. Dec. 11, 1893.) EJECTMENT-REVIEW ON APPEAL-INSTRUCTIONSABSENCE OF EVIDENCE FROM RECORD-VERDICT -FORM-SUFFICIENCY.

1. On writ of error, where there is no bill of exceptions showing the testimony upon which instructions, given or refused, were predicated, the appellate court cannot consider assignments of error based upon the giving or refusal of such instructions, except where a charge given and excepted to is patently irrelevant to the issues in the case, and is calculated to mislead the jury.

2. In ejectment it is not necessary that the verdict should expressly declare the "defendant to be guilty," but in such cases the verdict, if for the plaintiff, is sufficient when it finds in express terms that the plaintiff is entitled to the possession of the land in dispute, and describes the land by its numbers, or by its metes and bounds, or by any other sufficiently certain description by which it is known and can be identified; and finds the quantity of the plaintiff's estate therein.

(Syllabus by the Court.)

Error to circuit court, Orange county; John D. Broome, Judge.

Ejectment by Matthew R. Marks against There was judgment for Joseph G. Russell. plaintiff, and defendant brings error.

firmed.

Af

J. F. Welborne, for plaintiff in error. Massey & Willcox, for defendant in error.

TAYLOR, J. M. R. Marks, the defendant in error, recovered judgment in ejectment in

the circuit court of Orange county against the plaintiff in error for a certain parcel of land located in that county. By writ of error it is brought here for review. The substance of the errors assigned is: First, the giving of certain instructions by the court to the jury, and the refusal of the court to give certain instructions requested by the defendant; and, second, that the verdict of the jury was not in the form provided by law, consequently the court erred in not setting it aside and granting a new trial, and erred also in entering judgment thereon.

In the record brought here there is no bill of exceptions giving us the evidence, or any part thereof, adduced at the trial, upon which the instructions given were predicated, or upon which it was proposed to predicate those requested and refused. Under these circumstances, according to the rule long since established in numerous decisions of this court, we cannot consider the assignments of error based upon the giving or refusal to give instructions by the court in the absence of the evidence in the cause upon which it was necessary to found those instructions. In the absence of that testimony, the presumptions are that the rulings of the court below were proper; and we must uphold them upon that presumption when there is nothing before us to indicate whether they were erroneous or not. Proctor v. Hart, 5 Fla. 465; Burk v. Clark, 8 Fla. 9; McKay v. Friebele, Id. 21; Dibble v. Truluck, 11 Fla. 135; Parsons v. Baxter, 13 Fla. 580; Blige v. State, 20 Fla. 742; Livingston v. Cooper, 22 Fla. 292. To this rule there is but one exception, and that is where a charge excepted to is patently irrelevant to the issues in the case, and is calculated to mislead the jury, (Sammis v. Wightman, 31 Fla. 10, 12 South. 526,) which exception, however, does not obtain in this case. The contention here upon the second error assigned is that the verdict of the jury was defective, because it fails to find that "the defendant was guilty." There is no merit in this contention, or in the error assigned. Our statute (McClel. Dig. §§ 4, 5, p. 481; Rev. St. 1515) provides that the verdict and judgment in ejectment, if for the plaintiff, shall state the quantity of the estate of the plaintiff, and shall describe the land by its metes and bounds, by the number of the lot, or by other certain description. The verdict rendered here complies with these requirements of the statute. It finds in express terms in favor of the plaintiff; that he is entitled to the possession of the land, that is accurately described therein by its government survey numbers; and that he has a fee-simple estate therein. When these requirements of the statute are thus complied with by the verdict, in such cases it is not necessary that it should go further, and declare "the defendant to be guilty," etc. Finding no error in the record, the judgment of the court below is affirmed.

ECKMAN et al. v. MERIAM. (Supreme Court of Florida. Nov. 8, 1893.) APPEAL-RIGHT TO SUPERSEDEAS-Order of

COURT.

1. In order to obtain a statutory supersedeas, a plaintiff in error must come within the provisions of the statute. By its provisions a party against whom an entire money judgment has been rendered in the lower court may, as matter of legal right, within the time prescribed, supersede such judgment by giving the bond in the sum, conditioned and approved, as required; but the statute does not secure to a plaintiff in error the right, as matter of course, to supersede a judgment not rendered against him, although it may be for a definite sum of money, and affecting his interests. Where no judgment for an entire sum of money has been rendered against the plaintiff in error in the court below, the judgment as to him is other than a money judgment, within the meaning of the last clause of the first part of section 1272, Rev. St.

2. Attachment proceedings were instituted by E. & V. against M., and levy made on the latter's personal property. M. filed a bill against E. & V. and the sheriff to enjoin the sale of $1,000 worth of the property, on the ground that it was exempt to M. as the head of a family, under the constitution. The entire property levied on was sold as perishable under the attachment proceedings, and the proceeds were paid into the registry of the court. M. filed supplemental amended bill against E. & V., asking that $1,000 of the money in the registry of the court be paid to him as the head of a fam ily, and exempt under the constitution. The circuit court held that M. was entitled to the exemption, and directed the register of_the court to pay to him $1,000 of the money. E. & V. appealed from the decree, and within 30 days from its rendition filed a bond in the sum of $1,500, approved by the circuit clerk, conditioned to pay the $1,000 and interest to M., and the costs of suit in the event the decree should be affirmed. Held, that the decree appealed from was not such a decree for money against appellants as they had a right to supersede, as of course, under the statute, and that it would require an order of the proper court or judge to supersede such decree on appellants' appeal. (Syllabus by the Court.)

Appeal from circuit court, Alachua county; W. A. Hocker, Judge.

Bill by F. B. Meriam against Eckman & Vetsburg for an injunction and other relief. Plaintiff had decree, and defendants appealed. Plaintiff now moves to vacate the supersedeas. Motion denied.

S. Y. Finley, for appellants. W. W. Hampton, for appellee.

MABRY, J. Appellee has made a motion to vacate the supersedeas in this cause. The grounds of the motion are that the appeal is frivolous. No order has been obtained from any justice of this court for a supersedeas, and no bond has been filed by appellants pursuant to an order of the circuit or supreme court for a supersedeas.

Upon an examination of the record before us we find no supersedeas in the case to vacate. The record shows that appellee filed a bill against appellants and the sheriff of Alachua county to enjoin the sale under attachment proceedings of $1,000 worth of personal property included in a stock of goods

on the ground that so much of said goods was exempt by the constitution to appellee as the head of a family residing in this state. A temporary injunction was granted by a court commissioner, and on motion to dissolve before the chancellor the injunction was continued on condition that appellee, as complainant below, execute an injunction bond in the sum of $500. This bond, it seems, was not executed, and the entire stock of goods was sold as perishable property under the attachment proceedings, and the proceeds paid into the registry of the court, to await the termination of the attachment suit. The bill was dismissed as to the sheriff, and by leave of the court appellee filed an amended and supplemental bill against appellants, repeating therein the allegations of the original bill that appellee was the head of a family, residing in this state, and as such entitled to the exemptions provided for in the constitution; and further alleging that since filing the original bill the personal property claimed as exempt had been sold by the sheriff of Alachua county as perishable property under attachment proceedings instituted by appellants against appellee, and that the money arising from said sale was then in the registry of the court. The prayer of the bill is that $1,000 of this money be paid to appellee as his personal property exemption under the constitution.

There were demurrers and exceptions filed, and rulings thereon, but it is not necessary to refer to them here.

After a joinder of issue testimony was taken, and upon final hearing the circuit judge decreed that appellee was entitled to $1,000 as his constitutional exemption out of the funds in the registry of the court arising from the sale of the stock of goods, and that the clerk, as register of the court, pay over at once to appellee or his solicitors of record the sum of $1,000, and take receipt for same.

An appeal was entered by appellants from this decree, and within 30 days from the rendition of the same they filed a bond in the sum of $1,500, payable to appellee, reciting the entry of the appeal, and conditioned upon the payment of $1,000 and interest thereon to appellee, and the discharge of the costs of suit if the decree appealed from should be affirmed by this court. This bond is approved by the circuit clerk.

The appeal here is from a final decree, and the motion to vacate is based upon the theory that the filing of the bond within 30 days from the entry of the decree operates as a supersedeas. Section 1458, Rev. St., provides that no appeal from a final decree shall operate as a supersedeas unless taken within the time fixed by law for taking a writ of error "operating as of course as a supersedeas," and bond and security to be given as provided in cases of writs of error. The time fixed by statute (section 1272) when a writ of error shall operate as of course as a supersedeas is when it is sued out during the

session of the court at which the judgment was rendered, or within 30 days thereafter. If the plaintiff in error was the plaintiff in the lower court, he is required to pay all costs that may have accrued in and about the suit up to the time of issuing the writ, and shall file a bond payable to the defendant, with two good and sufficient obligors, to be approved by the judge or clerk of the lower court, in a sum sufficient to cover all costs which may accrue in the prosecution of the writ, conditioned to pay said costs if the judg. ment of the court below be affirmed. If the plaintiff in error be a party against whom a judgment was rendered in the lower court, he must file a bond payable to the adverse party, with like obligors, and approved in like manner, as the bond required of the plaintiff below where he is plaintiff in error; and, if the judgment so rendered be a money judgment, the bond must be in a sum sufficient to cover the amount for which the judgment was given, together with costs, conditioned to pay the amount of the judgment, with interest and costs, if the same be affirmed; but, if the judgment is in whole or in part other than a money judgment, the amount and condition of the bond shall be determined by the court below. The statute clearly gives to a party against whom an entire money judgment has been rendered the right to supersede, as of course, such judgment by giving the bond in the sum, conditioned and approved, as required by the statute, but it does not secure to a plaintiff in error the right, as a matter of course, to supersede a judgment not rendered against him, although it may be for a definite sum of money, and affecting his interests. Where no judgment for an entire sum of money has been rendered against the plaintiff in error in the lower court, the judgment as to him is other than a money judgment within the meaning of the last clause of the first part of section 1272, Rev. St., and he has no statutory right to supersede such judgment without an order from the proper judge allowing the same, and then only by giving the bond required by law. In order to obtain the statutory supersedeas the plaintiff in error must bring himself within the provisions of the statute, and when this is not done it will require an order of the circuit judge or a justice of this court before an appeal will operate as a supersedeas.

In this case no money decree was rendered against appellants, and there is no order from any proper judge allowing a supersedeas. The decree appealed from in effect adjudicates a homestead exemption as to personal property in favor of a debtor, the head of a family, residing in this state, and sets apart to him $1,000 arising from the sale of his personal property. The money was in the registry of the court, and, while the decree affects the rights of appellants, it is not a money decree against them. The motion must be denied.

A writ of error issued by the clerk of the circuit court to a judgment of a circuit judge in a habeas corpus proceeding is a nullity, where there has been no grant of such writ by the circuit judge who heard the cause, or a justice of the supreme court, under section 1780, Rev. St., or by the supreme court.

(Syllabus by the Court.)

Error to circuit court, Marion county; W. A. Hocker, Judge.

On proceeding for discharge on habeas corpus, Rebecca Wright and another were remanded for trial before the criminal court, and bring error. Dismissed.

W. K. Zewadski, for plaintiffs in error. William B. Lamar, Atty. Gen., for the State.

RANEY, C. J. The judge of the fifth circuit issued a writ of habeas corpus, and on hearing remanded the petitioners, Rebecca Wright and Lizzie Murry, for trial before the criminal court of record of Marion county. To this judgment the clerk of the circuit court of Marion county issued a writ❘ of error returnable before this court on the 27th day of October, ultimo. There was no allowance or grant of the writ by this court, or by any of its justices, or the circuit judge, as provided by section 1780, Rev. St., and consequently the writ is a nullity, and we have no jurisdiction of the cause. It will be dismissed at the cost of the petitioners. Judgment accordingly.

STATE ex rel. McCALLUM et al. v. SMİTH, Justice of the Peace.

(Supreme Court of Florida. Nov. 21, 1893.) REPLEVIN-DEFECTIVE AFFIDAVIT AMENDMENT— WRIT OF PROHIBITION.

A defect of statement in a replevin affidavit is not fatal to the jurisdiction of the cause, but is amendable under section 1723, Rev. St.; and prohibition is not a proper remedy for correcting the error of a justice of the peace in refusing to allow an amendment of such defect, the error being one committed in the progress of a cause of which the justice had jurisdiction, notwithstanding the defect. (Syllabus by the Court.)

Application by Archibald McCallum & Son for a writ of prohibition to compel Columbus B. Smith, a justice of the peace, to correct an error in refusing to allow an amendment to a defective statement in a replevin affidavit in an action of replevin brought by relators. Denied.

M. C. Jordan, for plaintiffs. A. W. Cockrell & Son, for defendant.

RANEY, C. J. According to the statement of the suggestion for the writ of prohibition, the relators began an action of replevin in April of the present year, in the justice of the peace court for the tenth district of Duval county, against Elisha Gee, as assignee of John E. Dupont, successor to Culpepper & Dupont, for the recovery of ten half barrels of flour and five barrels of the same article, the whole being valued at $45.25, they filing an affidavit and giving bond with sureties; and the replevin writ and summons were i sued and executed, and the declaration was filed. Afterwards the defendant, Gee, moved to quash the proceedings on the ground that the affidavit and bond were not the affidavit and bond required by law. Thereupon McCallum & Son moved to amend in the particulars objected to, but the justice of the peace rendered judgment overruling the motion to amend and dismissing the action; and, further, that the goods, they not having been redelivered to the defendant, should be returned to him, and for costs in his favor; and that the defendant have and recover of the plaintiffs, McCallum & Son, $47.25, the value of the goods. The plaintiffs, having excepted to the rulings, took an appeal from such judgment to the circuit court, and on the 16th day of October of the present year that court rendered judgment reversing the judgment appealed from, and directing that the justice of the peace should, upon the cause being remanded, "proceed therein upon the dismissal of the said writ of replevin, as required by law, and in accordance with the opinion of the circuit court filed" therein. The opinion referred to holds that, notwithstanding section 1723, (which reads: "Pleadings and proceedings in replevin shall be amendable as in other actions, and no motion to dismiss a replevin suit, or quash the execution of the writ shall be granted if application be made to amend in the particular objected to. But if any amendment be made to any replevin bond, such amended bond, although not theretofore binding on the sureties, shall relate back to the institution of the suit, and afford protection to the defendant in replevin from such institution,") the amendment of the affidavit should not have been allowed, and for the reason that an affidavit conforming to the statutory requirements is the foundation of the court's jurisdiction of an action of replevin, and that an amendment cannot be allowed in a case where the court has not acquired jurisdiction, and conse

quently not of a replevin affidavit, but that the statute authorized in replevin cases only such amendments as could be made in other cases of which the court has jurisdiction. The defect in the affidavit was the omission of the words "liable to execution," to be found in section 1712, Rev. St., in the clause stating that the property has not been "seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution." Holding the omitted words to be material, the judge concludes that the motion to quash should have been granted, he observing that the court's "jurisdiction of the action depends upon the affidavit's stating the facts detailed in the statute; and, if it could dispense with one, it might with equal propriety dispense with all." The opinion, citing sections 1724, 1725, Rev. St., also decides that, although the jurisdiction to try the cause depends upon making the affidavit, etc., required by the statute, and without a compliance with such requirements the action must be dismissed, because the court has no jurisdiction, yet the statute, in prescribing the form of the judgment to be rendered in case of dismissal, vests in the court the jurisdiction and power to render the judgment required upon proper proceedings had before it. It further states that one of the assignments of error raises the question whether the justice should have rendered judgment for the value of the property, when the record shows no means taken to assess such value in pursuance of the statute; and, after remarking, in effect, that it is not necessary to decide whether the value is to be ascertained from the affidavit or by the court or a jury, says that it does not appear by the judgment or record that the court in any manner judicially ascertained the value, and for this reason the cause must be remanded. It is also held that the judgment is defective, in that it does not comply with the statute, in that the value of each article is not attempted to be found and set out; and calling attention to the fact that the judgment of the justice requires the return of ten half barrels, when the return of the constable shows that only nine were taken under the writ, the judge directs that the cause be remanded for further proceedings in conformity to the views expressed.

Having set out the above facts, the suggestion further states that the cause has been remanded to the justice of the peace court, and that the justice has announced his intention to proceed as directed by the mandate and opinion of the circuit court, and render judgment against the plaintiffs and their sureties, not only for the recovery of said property, but also for the value thereof, as he is authorized to do by the judgment of the circuit court; and the suggestion urges that, as the justice of the peace and circuit judge have adjudged that the former had, for the reasons indicated, no jurisdiction of the suit in replevin, there is now no warrant or au

thority of law in the justice of the peace to proceed further herein to a point beyond the judgment quashing the writ and dismissing the proceedings, notwithstanding the opinion, mandate, and judgment of the circuit court, and a writ of prohibition is prayed accordingly.

The suggestion is demurred to.

If it were the law that the defect in the affidavit is fatal to the justice's jurisdiction of the cause, we might have to consider the question whether or not there was judicial power in the justice to do more than dismiss the proceedings, but we are entirely satisfied that such is not the law, and that the power and duty to allow amendments of replevin proceedings, as provided by section 1723, Rev. St., pertain to the conduct of the cause as one of which the court has obtained jurisdiction under the defective proceedings sought to be amended, or notwithstanding such defects. It is not a case of the class to which Hays v. McNealy, 16 Fla. 409, belongs, where the averment of certain facts must appear on the record in order to show jurisdiction; and, if there is an absence of such averment, the entire proceeding is coram non judice, and absolutely void. The very purpose of the statute was to avoid dismissals on account of these defects, and require the court to proceed and do substantial justice on the defects being amended. The language is plain, and will not sustain an interpretation that excludes the amendment of an affidavit which is defective in its statements, and there is nothing in the spirit or words of the constitution that militates against the authority of the legislature to confer the power which is given to amend.

A writ of prohibition is not the remedy for correcting mere errors of procedure committed in the progress of a cause of which a court has jurisdiction; and for this reason, if for no other, the demurrer must be sustained. The relators availed themselves of the proper remedy for reviewing the decision of the justice of the peace when they took their appeal to the circuit court, and they have met the result indicated by the record. The demurrer is sustained. There will be judgment accordingly.

JACKSON et al. v. MILLSPAUGH et al. (Supreme Court of Alabama. Nov. 29, 1893.) INJUNCTION-ACTION ON BOND-DAMAGES-EXPENSE ON FINAL HEARING. Defendants, in an action for damages on a contract for the sale of certain goods, filed a bill to reform the contract, and obtained a temporary injunction against the prosecution of plaintiffs' action. Plaintiffs (defendants in the injunction suit) moved to dissolve the injunetion. The motion was not acted on until the hearing on the merits, when the injunction was dissolved. Held, that all the expense incurred by defendants in the injunction suit in preparing for final hearing should be included in the assessment of damages.