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Notwithstanding that the Oregon court, for whose opinions we entertain great respect, seems to distinguish the discharge of a jury upon a nonjudicial day from a discharge upon a lawful day for an improper or unauthorized reason, in its effect upon the jurisdiction of the court, we think that the case cited is out of harmony with the general line of decisions respecting the jurisdictional consequences of an unnecessary or irregular discharge of a jury on a criminal trial.

284 We are unable to agree with the reasoning and conclusion of the Oregon case that a void act discharging the jury operates to devest the court of further jurisdiction in the case. As previously suggested, whether the discharge be a void act, because occurring on a nonjudicial day, or improper or unauthorized for any other reason, the trial, through the irregular or unauthorized act, will have come to a close without a verdict, so that, if the act of discharging the jury be held to have been unauthorized and not to have been waived by any act or conduct of the defendant, if a waivable matter, the latter will have been in jeopardy. By such erroneous procedure, however, the court does not devest itself of jurisdiction to hear and determine any further motions, pleas or other applications that may be presented in the case; and even to hold another trial of the case if a plea of former jeopardy should be heard and overruled, although, in doing so, grave error may be committed.

Suppose it to be conceded that the act of the court in discharging the jury was absolutely void. The prisoner is not held under that order, any more than if he should be held under a warrant of arrest or commitment upon a new information. The old information is still pending and undisposed of, and the plaintiff's commitment is for trial thereon. She has already submitted a plea of some kind in bar of another trial, and that plea has been overruled. Let it be assumed that she interposed in defense of the pending charge the former proceedings, or that she will do so. If it be true that those proceedings amounted to an acquittal, then her plea ought to be sustained, and the court has erred or may err in otherwise disposing of it. But the jurisdiction of the court to hear and determine the plea is clear, it seems to us; and the error, if any, in such determination may be reviewed and corrected before the proper court in the mode pointed out by law. It ought not to be considered on habeas corpus, in which proceeding this court has no greater authority than a single justice, or a district judge would have upon a similar application. We are of the 285 opinion that, though it is

possible that the court may have erred, its act in committing the plaintiff was within the legitimate province of the court while acting in a lawful manner; and, by express command of the statute, it is not permissible in this proceeding to question the correctness of the committing order.

For the above reasons we think it not only unnecessary, but improper, to consider the other questions presented; and we are constrained to refuse to discharge the plaintiff from the custody of the sheriff.

Beard, J., and Scott, J., concur.

In Habeas Corpus Proceedings, the court cannot review mere irregularities which do not go to the jurisdiction of the court making the order under which the prisoner is held. The writ is not a corrective remedy, and cannot be made to discharge the functions of an appeal or a writ of error or certiorari, nor is it designed as a substitute for either: See the note to Koepke v. Hill, 87 Am. St. Rep. 172; Younger v. Hehn, 12 Wyo. 289, 109 Am. St. Rep. 986; Martin v. District Court, 37 Colo. 110, 119 Am. St. Rep. 262; Ex parte Knight, 52 Fla. 144, 120 Am. St. Rep. 191.

Habeas Corpus Will Lie, according to Ex parte Davis, 48 Tex. Cr. 122 Am. St. Rep. 775, to prevent the violation of a constitutional provision that no person shall be again put on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.

An Accused is in Jeopardy when a jury is impaneled and sworn to try him; and if the jury is unnecessarily or improperly discharged without his consent, it has been affirmed that he cannot again be put on trial for the same offense: State v. Ward, 48 Ark. 36, 3 Am. St. Rep. 213; State v. Nelson, 19 R. I. 467, 61 Am. St. Rep. 780; Allen v. State, 52 Fla. 1, 120 Am. St. Rep. 188. But the fact that one accused of a crime is tried before a jury which, in announcing that its members cannot agree, is discharged in his absence, and while he is confined in jail, does not entitle him to be released from custody and further trial on the ground that he has been once in jeopardy: Yarbrough v. Commonwealth, 89 Ky. 151, 25 Am. St. Rep. 524. And where the constitution provides that "if the jury disagree, the accused shall not be deemed to have been in jeopardy," it is within the discretion of the court to determine when a disagreement sufficient to justify a discharge of the jury exists. No specific period for deliberation can be designated, nor any absolute rule laid down, to control this discretion; and unless it has been grossly abused, the objection of former jeopardy is not ground for reversal upon error, much less for discharge upon habeas corpus: In re Allison, 13 Colo. 525, 16 Am. St. Rep. 224.

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CASES

IN THE

SUPREME COURT

OF

FLORIDA.

RICHBOURG v. ROSE.

[53 Fla. 173, 44 South. 69.]

STATUTE OF FRAUDS.-A Sale of Growing or Standing Timber is a contract concerning an interest in land and within the statute of frauds. (p. 1066.)

DEEDS

Attestation-Substantial Compliance with Statute Sufficient. Although the phrase commonly used to denote that the persons signing a deed are witnesses is "signed, sealed and delivered in the presence of," the statute does not require any particular form of words for such attestation clause, and any phrase which clearly denotes that the persons signing were witnesses is sufficient. (p. 1067.) DEEDS Attestation.-A deed properly delivered is not invalid because the attestation clause recites that it was signed and sealed only, without reciting that it was delivered. (p. 1068.)

DEEDS-What Constitutes a Sufficient Attestation.-Where the concluding clause recites, "In witness whereof we hereunto set our hands and seals," and under those words on the left-hand side of the page, in the place where the names of witnesses to the execution of a deed are usually found, appear the word or letters "Wit.," and the names of two persons underneath, the deed shows substantially and clearly upon its face that it was signed and sealed in the presence of the two persons whose names so appear. (p. 1069.)

EVIDENCE-Order of Introduction-Discretion. The trial court is authorized to regulate the order of introduction of evidence, and its discretion in this matter will not be reviewed on appeal unless clearly abused. (p. 1069.)

AGREEMENT TO SELL Standing Timber-Revocability of License to Remove Trees.-An agreement to sell another the wood and timber on certain land with a given time to remove it is an executory contract for the sale of chattels to take effect when the timber is severed from the land, with a license to enter, cut and remove the trees, which license is revocable at any time before the purchaser has entered and cut the trees. (p. 1070.)

TIMBER DEEDS-What Constitutes an Irrevocable Sale of Standing Timber.-Where an instrument recites the payment of a cer

tain sum of money, that the grantors have bargained, sold and conveyed to a certain person all of the pine timber now standing upon certain described lands, that the described lands have been granted, bargained, sold and leased to the grantee to be used for turpentine purposes and privileges, and that the grantee is granted and given the right for a certain period to enter upon and work said timber for turpentine purposes as well as to cut and remove the timber with the right of ingress and egress, which said instrument was acknowledged and recorded, it cannot be revoked by a subsequently executed deed of conveyance of the real property made by the same grantor. (p. 1071.)

REPLEVIN-Lies for Personal Property Only.-An action of replevin is one for the recovery solely of personal property, and cannot be maintained to recover real property. (p. 1072.)

CRUDE TURPENTINE Nature of as Personal Property.— Crude turpentine in boxes in pine trees, in a state to be dipped up, is personal property. The turpentine crop is properly classed with fructus industriales, for it is not a spontaneous product of the trees, but requires annual labor and cultivation. (p. 1072.)

CRUDE TURPENTINE Which has Formed on the Body of the Tree, and is called scrape, is personal property.

(p. 1073.)

REPLEVIN-Possession Necessary to be Shown.-In replevin, the plaintiff, in order to recover, must show a right of possession in himself to the property replevied. He can recover only upon the strength of his own right of possession. (p. 1073.)

REPLEVIN-Effect of Plea of not Guilty.-In an action of replevin a plea of not guilty puts in issue not only the right of plaintiff to the possession of the property replevied, but also the wrongful taking and detention thereof. Under such plea, defendant can give any evidence of special matter which amounts to a defense to plaintiff's cause of action, to show that the plaintiff is not entitled to the possession of the property replevied. (p. 1073.)

REPLEVIN.—Where Property Which has been Annexed to the Freehold is Severed therefrom, it becomes personal property so as to become recoverable by an action of replevin. (p. 1073.)

REPLEVIN of Property Severed from Freehold.-In order to maintain replevin for property which had been annexed to the freehold, but subsequently severed therefrom, the plaintiff must have the actual or constructive possession of the land. (p. 1073.)

REPLEVIN-Effect of Adverse Possession.-Inasmuch as the title to land cannot be tried, ex directo in replevin, if the series of acts, by which property which had been annexed to the freehold is severed therefrom, are sufficient to create an adverse possession in the defendant, replevin cannot be maintained. But such adverse possession must be something more than a mere act of trespass. It must be so long continued, and so far yielded to, as to constitute a possession to the exclusion of others, an occupancy, as distinguished from a mere act of trespass. (p. 1073.)

THE CONSTRUCTIVE POSSESSION of Wild Land is in the owner of the fee unless there is an adverse possession in some one else. (p. 1073.)

ADVERSE POSSESSION of Turpentine-Timber Land.—The occupation of pine land, by annually making turpentine on it, is such an actual possession as will oust a constructive possession by one claiming merely under a superior paper title. (p. 1075.)

ADVERSE POSSESSION.-The Effect of Color of Title, when an entry is made and possession taken and held in accordance with it, is to define the extent of the possession claimed; but the entry and

possession must be proved by acts sufficient to constitute such adverse entry and possession. (p. 1076.)

REPLEVIN OF TURPENTINE Defense of Adverse Possession. Where defendants were in the exclusive possession of turpentine trees and the land, their employés cutting the boxes in the trees, chipping them, dipping the turpentine and hauling it away in barrels, some six or seven thousand trees being so worked by them, and plaintiff knew these facts for months previously, but never entered the land, nor cut timber thereon, nor chipped trees, nor turpentined them, his constructive possession of the property was not sufficient to overcome the possession of the defendants, which was under a claim and color of right, and hence plaintiff could not maintain replevin for the turpentine made on the property by defendants. (p. 1076.)

ADVERSE POSSESSION—Misleading Instruction.-An instruction that "If the jury should find from the evidence that has been introduced before them that the plaintiff was the owner of pine trees located upon lands described in the declaration by a conveyance from persons who derived title to the land by title from the United States government, and that the defendants were in possession, at the time of the institution of this suit, or crude turpentine in the boxes located on this land, and they were not there with the plaintiff's consentthat is, they were not in possession with the plaintiff's consent-then the jury should ascertain how much of the turpentine there was, and its value, and render a verdict for the plaintiff for the amount so found," is erroneous and misleading, in that it excludes the conten tion of defendants that they were in adverse possession, claiming under color of right and were not trespassers. (p. 1076.)

Daniel Campbell & Son, for the plaintiffs in error.

S. K. Gillis and Avery & Avery, for the defendants in error. 176 PARKHILL, J. On the twenty-fifth day of April, 1906, the defendant in error, hereinafter called the plaintiff, instituted an action of replevin against the plaintiffs in error, who for convenience will be known elsewhere in this opinion as the defendants, in the circuit court for Walton county, to recover the crude turpentine in the turpentine boxes in the pine trees on the west half of the southeast quarter and the west half of northeast quarter of section 26, township 3 north, range 23 west, in Walton county, Florida, alleged in the affidavit to be of the value of one hundred and twenty-five dollars. The property was redelivered to defendants upon their forthcoming bond. On the seventh day of May, 1906, the plaintiff filed his declaration, alleging therein that defendant wrongfully detained from the plaintiff the said personal property, the crude turpentine as aforesaid, from the plaintiff's possession; that said property was of the value of one hundred and twenty-five dollars, and claimed two hundred and fifty dollars damages. On the fourth day of June, 1906, the defendants filed a plea of not guilty and on the third day of October, 1906, an additional plea "that the said property is not the property of plaintiff." The plaintiff

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