James Burk, Appellant, vs. Albert Clark, Appellee, 8 Fla. 9

DuPONT, J., delivered the opinion of the Court. This was an action on the case for slander, brought in the Circuit Court of Hillsborough county by the appellee against the appellant. The jury gave a verdict in favor-of the plaintiff below, upon which verdict judgment was entered, and it is from that judgment that the appeal is brought to this Court. The two first errors assigned refer exclusively to the instructions which were severally given and refused by the judge in the Court below.

These instructions purport to have been given in writing and attested by the signature of the judge, and seem to have been relevant to the issue joined between the parties, but the record presents no bill of exceptions setting forth the evidence upon which the instructions were given or refused.

There are in the record several sets of depositions which are apparently applicable to this case, but this Court has repeatedly ruled, that evidence brought forward in this loose way is wanting in that degree of verity, which is necessary to commend it to consideration, and that such verity is attainable only by its incorporation into a bill of exceptions projaerly attested by the signature of the judge who may have presided at the trial of the cause.

Such instructions as are relevant to the issue must always be based upon some portion of the evidence adduced upon the trial, and to enable the Appellate Court to decide upon the correctness of the ruling which either grants or refuses the instruction, it is evident that resort must be had to that evidence. It is also a settled rule of law that every presumption is in favor of the correctness of the ruling of the Court below, and, in order to induce the appellate tribunal to reverse such ruling, it must be made manifest that an error has been committed.

The Appellate Court will never resort to conjecture on such a point. For these reasons we are constrained to overrule the first two errors assigned. The third error assigned is in the following words, viz: “The Court erred in giving a judgment on the verdict of the jury, because there was no similiter filed to the defendant’s plea to the first count of plaintiff’s declaration, and because there was no plea to the second amended count of plaintiff’s declaration.” We doubt whether, even at common law, error could be predicated upon either of the grounds set forth in his assignment.

But, be that as it may, our statute (Thompson Digest, p. 351, § 2,) has provided that “ no judgment, after the verdict of a jury or an award of arbitrators shall be stayed or reversed for any defect or fault in the original writ, or for any variance between the writ and declaration, or for any mispleading, insufficient pleading or misjoining of the issue, or for any faulty count in a declaration, where the same declaration contains one count or more which is or are good,” &c. The third error assigned is therefore overruled.

The fourth and-last assignment is, “because the jury were not sworn to give a true verdict.” Upon a reference to the record, we find that the jury were “ sworn well and truly to try and the truth to speak upon the issues joined.” This mode of swearing the jury is as formal as there can be any necessity for, and we are at a loss to perceive the force of the objection presented in the assignment. The fourth assignment is therefore overruled also. Let the judgment of the Circuit Court rendered in this case be affirmed.