470 State, Sims v. (Ala.). 357 State v. Skeggs (Ala.).

Stallworth v. State (Ala.).

Stansel, Smith v. (Miss.).

Starnes, Union Sawmill Co. v. (La.).

State v. Abrams (La.)..

State, Anderson v. (Miss.).

Spencer v. Dell (Fla.)

Spicuzza, Estopinal v. (La.)

S. S. Dale & Sons v. Griffith (Miss.)

Stafford v. Richard (La.)..

Staley, Taylor v. (La.).

906 State v. Peterman (La.). 543 State v. Pierre (La.). 107 State, Poe v. (Ala.). 568 State v. Price (La.).. 467 State, Prince v. (Miss.). 518 State, Ragland v. (Fla.).

166 State, Pelham v. Fla.). 729 State, Perry v. (Ala.)..

1039

470

672

574

521

99

537

724

759

State, Askew v. (Ála.).
State, Bailey v. (Miss.).
State v. Barrett (La.).
State, Birt v. (Ala.).
State, Bradberry v. (Ála.).
State, Brock v. (Miss.).
State, Brooke v. (Ala.).
State v. Brown (La.).
State, Bryant v. (Miss.).
State, Burnett v. (Miss.).
State, Butler v. (Fla.).
State, Campbell v. (Ala.).
State, Carter v. (Miss.).
State v. Clay (La.).
State v. Conega (La.).
State v. Crane (La.)
State v. Davis (La.).
State, Deer v. (Ala.)

State, Douglass v. (Miss.)
State, Dozier v. (Ala.).
State v. Edwards (Miss.)
State, Feagle v. (Fla.).
State v. Firmatura (La.).
State, Fisher v. (Fla.).
State, Fourment v. (Ala.).
State, Gambrell v. (Miss.).
State, Gardner v. (Miss.)
State, Green v. (Miss.).
State, Griffin v. (Ala.).

State, Gulf Compress Co. (Miss.)

State, Harris v. (Ala.).

State, Hatton v. (Miss.)

65 State, Smith v. (Ala.).. 561 State, Smith v. (Ala.). 751 State, Smithey v. (Miss.). 137 State, Spears v. (Miss.). .1016 State, Stallworth v. (Ála.). 858 State, Stevens v. (Miss.). 968 State, Stokes v. (Miss.). 67 State, Sullivan v. (Miss.). 491 State, Taylor v. (Miss.). 664 State, Thomas v. (Ala.). 247 State, Thomas v. (Ala.).. 248 State, Thomas v. (Ala.). .1039 State v. Thompson (La.). 520 State, Thompson v. (Fla.). 560 State, Tillman v. (Ala.). 616 State, Treen v. (Miss.). 614 State, Tynes v. (Miss.). .1009 State, Vick v. (Ala.).

673 State, Washington v. (Ala.). 848 State, Washington v. (Fla.). 417 State, Washington v. (Miss.). 9 State, Watson v. (Ala.). 964 State, Way v. (Ala.). 182 State, Welch v. (Ala.). 691 State, West v. (Fla.). 422 State, White v. (Miss.). 266 State v. Wren (La.). 138 State, Wright v. (Ála.). 513 State, Wright v. (Ala.). 252 State, Wynne v. (Ala.). 481 State, Young v. (Ala.).

State, Henderson v. (Fla.).

State, Jimerson v. (Miss.).

State, Johnson v. (Fla.)

749 State ex rel. Douglas v. Kennedy (La.)... 796 708 State ex rel. Fisher v. New Orleans (La.) 798 249 State ex rel. Gentry v. Dodson (La.). 471 State ex rel. Kearney v. Steel (La.). 889 State ex rel. Labauve v. Michel (La.)..... 430 151 State ex rel. Stewart v. Reid (La.). 417 State ex rel. Unity Industrial Life Ins. & 864 Sick Benefit Ass'n v. Michel (La.)..... 352 655 State Nat. Bank v. Board of Com'rs of 489 Port of New Orleans (La.).

354

215

113

307

156

174 Steel, State ex rel. Kearney v. (La.)... 215 579 Sterling, Crawford v. (Ala.)..

.....

849

630 Stevens, Mississippi Home Ins. Co. v. 75 (Miss.)

245

259

Stevens v. State (Miss.).

416

630 Stewart, In re (La.).

113

246 Stewart, Goodson v. (Ala.).

239

State, Jones v. (Ala.).
State, Jordan v. (Miss.).
State v. Key (Miss.).
State, Lawson v. (Ala.).
State v. Lewis (Fla.)..
State, Litford v. (Miss.)
State, Logan v. (Ala.)..
State, McCall v. (Fla.).
State, McDaniel v. (Ala.).
State, McDonald v. (Fla.).
State, McDuffee v. (Fla.).
State, McIntosh v. (Miss.)
State, Magee v. (Miss.).
State v. Martin (Fla.).
State, Millender v. (Ala.).

3. SAME-Judgment.

The language of paragraph 2 of section 2188 of the General Statutes of 1906, relating to the judgment in an action of replevin, where the goods have been redelivered to the defendant upon his forthcoming bond, is mandatory; and a judgment is fatally defective which is not entered in substantial compliance with its requirements.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Replevin, §§ 388-397.]

(Syllabus by the Court.)

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by the Clutter Music House against Charles W. Johnson. Judgment for plaintiff, Reversed. and defendant brings error.

Jones & Pasco, for plaintiff in error.

SHACKLEFORD, C. J. This is an action of replevin, instituted by the defendant in error against the plaintiff in error in the circuit court for Escambia county, to recover the possession of a piano, alleged to be of the value of $385. There was a plea of not guilty. The property was redelivered to the defendant upon his forthcoming bond. A trial was had before a jury, which resulted in the following verdict: "We, the jury, find a verdict in favor of the plaintiff in the sum of 46 SO.-1

one hundred and twenty-six dollars and serenty cents ($126.70). T. N. Adams, Foreman." Upon this verdict the following judgment was entered: "It is therefore considered by the court that the said plaintiff do have and recover of and from the said defendant, as principal, and Wm. Ray and Wm. Camp, as sureties upon the forthcoming bond of said defendant, the aforesaid sum of one hundred and twenty-six and 70/100 dollars, together with his cost herein expended and now here taxed at $ —, and that said plaintiff do have execution therefor, to be levied on the goods, chattels, lands, and tenements of the said defendant, and the said sureties of the forthcoming bond and to said plaintiff delivered."

A writ of error to this judgment was sued out, returnable to the 2d day of January, 1908. Seven errors are assigned; but, in view of the conclusion which we have reached, it becomes unnecessary to discuss them in detail.

We find from the evidence that the defendant had purchased a piano on the installment plan from John M. Clutter for the sum of $385, and had executed a contract by which he agreed to pay $10 cash and $10 per month until the full amount of the purchase price was paid, with interest from maturity at the rate of 8 per cent. per annum. It was also stipulated in the contract that the title was to remain in the seller until the full amount of the purchase money had been paid. There is no occasion to set out the other features of the evidence.

The defendant filed both a motion for a new trial and a motion in arrest of judgment, each of which was overruled, and exceptions duly taken to the rulings, and these rulings form the basis for two of the assignments.

Paragraph 2 of section 2188 of the General Statutes of 1906 provides that. where the goods have been redelivered to the defendant upon his forthcoming bond, "the plaintiff shall take judgment for the property itself and against the defendant and the sureties on the forthcoming bond of the defendant for the value of the property; such judgment to be satisfied by the recovery of the proper

ty, or of the amount adjudged against the defendant and his sureties."

Prior to the adoption of the Revised Statutes of 1892, chapter 3133, p. 75, of the Laws of 1879, found as section 17, pp. 862, 863, of McClellan's Digest, governed, which provided that, where the property had been redelivered to the defendant, the plaintiff should have his option of taking judgment either for the value of the property or the property itself. This was changed by section 1724 of the Revised Statutes of 1892, which was modified in part by chapter 5159, p. 95, of the Laws of 1903, and was brought forward into the General Statutes of 1906 as section 2188. See McGriff v. Ried, 37 Fla. 51, 19 South. 339. However, even prior to the adoption of the Revised Statutes of 1892, judgment had to be entered either for the value of the property or the property itself. In other words, the action of replevin is not brought, like the action of assumpsit, for example, for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the property in dispute. The language of the statute, which we have copied, is mandatory, and, not having been complied with in the instant case, the verdict and judgment rendered therein are fatally defective. See Wells on Replevin (2d Ed.) §§ 740, 743, 772, in fact, the entire chapter 24; Shinn on Replevin, $§§ 603, 604, 621, 623, 625; Cobbey on Replevin, §§ 1061, 1062, 1078; 18 Ency. Pl. & Pr. 572, 574, 578; Spencer v. Bell, 109 N. C. 39, 13 S. E. 704.

The discussion in Holliday v. McKinne, 22 Fla. 153, and Scotch Manufacturing Co. v. Carr, 53 Fla. 480, 43 South. 427, will also prove of service.

The verdict being fatally defective, no valid judgment could be entered thereon, and for this reason the judgment must be reversed.

COCKRELL and WHITFIELD, JJ.. con

cur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

NICHOLS v. LEWIS, Sheriff. (Supreme Court of Florida. Nov. 3, 1906.) APPEAL-REVIEW-DIVIDED COURT AFFIRM

ANCE.

The concurrence of a majority of the members of the Supreme Court sitting as one body is necessary to a decision; but, where the members of the court sitting in a cause on writ of error or appeal are equally divided, the judgment of the lower court should be affirmed, on the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South. 51.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4421-4427.]

(Syllabus by the Court.)

In Banc. Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

The concurrence of a majority of the members of the Supreme Court sitting as one body is necessary to a decision; but, where the members of the court sitting in a cause on writ of error or appeal are equally divided, the judgment of the lower court should be affirmed, on the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South. 51.

[Ed. Note.-For cases in point, see Cent. Dig vol. 3, Appeal and Error, §§ 4421-4427.] (Syllabus by the Court.)

Appeal from Circuit Court, Duval County; Rhydon M. Call, Judge.

Bill by A. B. Randall, individually and as trustee, and others, against John C. L'Engle, executor of Lizzie Ivey. Decree for defendant, and plaintiffs appeal. Affirmed by divided court.

M. C. Jordan, Owen & Smith, and A. W. Cockrell & Son, for appellants. E. J. L'Engle and I. Zacharias (R. P. Daniel, Jr., on the brief), for appellee.

PER CURIAM. In this case Mr. Chief Justice SHACKLEFORD, the Honorable JOHN W. MALONE, Circuit Judge, sitting in the place of Mr. Justice COCKRELL, disqualified, and Mr. Justice WHITFIELD are of the opinion that the decree should be reversed, while Mr. Justice TAYLOR, Mr. Justice HOCKER, and Mr. Justice PARKHILL are of the opinion that the decree should be affirmed. Under these circumstances, upon the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South. 51, Commercial Bank v. Towers, 48 Fla. 250, 37 South. 742, Holton v. Patterson, 49 Fla. 178, 38 South. 352, and Mugge v. Tate, Jones & Co. (Fla.) 41 South. 603, an order will be entered affirming the decree. It is so ordered.