Wade et al. v. Doyle-Opinion of Court. Even though a trial of such an issue was proper, yet as against the wish of the plaintiffs, the defendant cannot prosecute plaintiff's suit. If the plaintiffs saw proper to abandon their cause in this stage of the proceedings, the defendant's remedy was a motion for judgment for want of prosecution. While the plaintiff cannot be compelled to submit to a non-suit, (Rule 51, Circuit Court Rules,) yet if he voluntarily declines to prosecute his suit and refuses so to do, the court can and should dispose of it in the manner stated. From what has been said, it is apparent that the judgment in this case must be reversed and set aside, that the verdict must be set aside and the case remanded for further proceedings. No objection having been made to the special pleas in this case, we have examined them as we find them upon the record. Under the plea of not guilty evidence to prove adverse possession is admissible, though the statute of limitations is not pleaded. 94 U. S., 775. Special pleas of this character were not admissible at common law, and the statute does not make them so. As remarked by the Supreme Court of Pennsylvania, in Zeigler vs. Fisher, 3 Penn., State, 367, when treating of a like statute to ours: "The act declares that the plea in ejectment shall be 'not guilty,' thereby reducing the issue to one simple plea adapted to the trial of the merits with more facility and certainty." As to common law, so under the statute, there may be special pleas to the jurisdiction or pleas puis darrein continuance, but the pleas here filed are not admissible. 20 Ind., 174. See, also, Tyler on Ejectment, 777 to 792, 464, 465, 467. That a special plea amounts to the general issue is an objection to the manner of the pleading, the matter contained in it. It may be in substance a good plea and yet subject to attack on this ground. Where special demurrers are al Sanford v. Cloud-Syllabus. lowed, such a demurrer is the proper method of attacking such a plea. 6 S. and M., 88; 20 Ill., 148; 2 N. H., 454. Special demurrers are abolished in this State, (sec. 15, ch. 1096, Laws,) but the court has power to strike out a plea of this character, (sec. 16, same chapter, Laws,) tending as it does, when filed with the plea of the general issue, to embarrass the trial. 3 Blackf., 256. Judgment reversed, verdict set aside, and case remanded with directions to strike out all the proceedings after the plea of not guilty, and issue thereon, and for further proceedings conformable to law and not inconsistent with this opinion. HENRY S. SANFORD, APPELLANT, VS. AARON CLOUD, AP 1. 2. 3. 4. PELLEE. That a case is pending in a court of concurrent jurisdiction involving the same matters and seeking the same relief is not ground for continuance of a cause on motion of defendant where there are motions pending to strike out pleas which may and should be determined by the court, and where several continuances had before that time been granted at the instance of the party seeking such continuance. An affidavit for a continuance upon the ground of absence of a material witness must state explicitly and clearly the facts expected to be proved by the witness. The Circuit Courts have both common law and equity powers, but in exercising the different jurisdictions they act as distinct and independent tribunals. The plea of "not guilty" is not applicable to an "action for damages" for breach of covenants, and the defendants should be permitted to withdraw it at all times, if he so desires. To a plea setting up a want of title in the vendor at the time he entered into a contract of sale, it is a good replication that all the matters and things therein set up as a defence were before that 5. 6. 7. Sanford v. Cloud-Syllabus. time determined in favor of the plaintiff by a decree in a suit between the same parties, and the decree finds specifically that there was no bad faith, and there was a full and indispensable title in the vendor. That damages were not awarded, and that a decree cannot be enforced, is not a reply to a plea of res judicata. It is not necessary that the vendor should have a complete, unin- Amending a pleading after it has been pronounced bad on demurrer is a waiver of the demurrer. 8. 9. 10. 11. The general rule is, that notwithstanding the particular pleading demurred to may be defective, the court will examine all the pleadings in the cause, and render judgment against the party chargeable with the earliest substantial fault in pleading. Covenants that upon the faithful performance by vendee of the covenants and agreements to be by him performed, and upon the payment of the several sums of money mentioned, and the interest thereon at the times and in the manner and at the place mentioned to the vendor, that thereupon the vendor will well and faithfully execute and deliver a good and sufficient deed, and thereby convey a good fee simple title, are dependent covenants. After the expiration of the time for the payment of the last installment and the performance of the last act, the vendee, to have his action for an entire breach, must execute and tender a conveyance in conformity to his contract, and the declaration in the suit must aver such tender. An averment of readiness and willingness to convey is not sufficient. Where pleas plainly and clearly inconsistent with each other are In an action by vendee against vendor, upon an executory contract Sanford v. Cloud-Opinion of Court. for the sale of land, the general rule is that the measure of damages is the purchase money and interest and expense of investigating title. This rule, however, does not apply where there is want of good faith in the vendor shown by his voluntarily conveying the land to another or by any other act inconsistent with the utmost good faith. In such cases, or in cases where vendor had no title, although he acted in good faith, he is liable for the value of the land at the time of the breach, with interest from that date. Appeal from the Circuit Court for Orange county. The appellee sued the appellant in the Circuit Court in an action of covenant, and recovered a judgment for $8,400 from which the appeal is taken. The other facts are stated in the opinion of the court. E. K. Foster, J. W. Price, Fleming & Daniel for Appellant. St. Clair Abrams & Summerlin for Appellee. MR. JUSTICE WESTCOTT delivered the court. opinion of the The first error assigned in this case is the refusal of the court to grant the motion for a continuance heard on the 29th July, A. D. 1879. The exercise of discretion involved in the determination of this motion, when the action of the court is properly presented by exception in the record, is under the statutes of this State subject to review in this court. The uniform course of action by this court in reviewing the exercise of such a discretion is to require a very clear, plain case of error to sanction the control of the Circuit Court in its action in this respect. 9 Fla., 490; 12 Fla., 562. An appellate tribunal should never, except in a plain case, control discretion of this character in matters of practice, as it has not the opportunity of knowing many things which should, to some extent, control in its exercise, and which the court, Sanford v. Cloud-Opinion of Court. before which the case is tried, knows necessarily. 12 Fla., 571; 12 Grat., 576. In the State of Georgia, where the statute made such action of the court of original jurisdiction the subject of review, the uniform practice of the Supreme Court was not to sustain a writ of error on account of refusal to grant a continuance, unless in a most plain and palpable instance of the arbitrary and oppressive exercise of the discretion necessarily vested by law. 1 Kelly, 215. In view of this rule, which we think is eminently proper, what is the case presented by this record? It is an "action for damages" by vendor in a contract for sale of lands against vendee in possession under such contract, the cause of damage being alleged breach of covenants. For the purpose of disposing of this assignment of error, as well as for considering the other errors assigned, it is essential to show the exact state of the pleadings in the case. The summons was issued December 20, 1876, and the declaration filed February 5, 1877. After a demurrer to first declaration by agreement an amended declaration was filed on the 9th day of April, A. D. 1877. This declaration narrates that plaintiff and defendant entered into a written covenant, under seal, in the words and figures following: LAND CONTRACT. "This contract, made this twenty-eighth day of January, in the year of our Lord one thousand eight hundred and seventy-one, between Aaron Cloud, of Orange county, State of Florida, party of the first part, and Henry S. Sanford, party of the second part, witnesseth as follows: "First. The said party of the first part, in consideration of the sum of twenty-five hundred dollars, to be paid to the said party of the first part, and of the covenants to be performed by the said party of the second part as hereinafter expressed, hereby agrees to sell to the said party of the |