J. L. Groner vs. the State of Florida.-Opinion of Court. common law, which declares that it must, for an offence against the statute, with certainty and precision charge the defendant to have committed or omitted the acts under the circumstances, and with the intent mentioned in the statute, and if any of these ingredients of the offence be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error, and the defect will not be aided by verdict. 2 East 333; Arch'd. cr. Law, 1 Ed., page 23. The indictment must be certain as to the person against whom the offence was committed. Ibid, Ed., 1840, page 27. Also as the facts and circumstances, and intent constituting the offence. Ibid., 38. The circumstances must be stated with such certainty and precision that the defendant may be enabled to judge whether they constitute an indictment offence or not in order that he may demur or plead to the indictment accordingly. Ibid., 39, and that there may be no doubt as to the judgment which should be given if the defendant should be convicted. Ibid, and Rex vs. Horne, Cowper, 675; and that he may be enabled to plead a conviction or acquittal upon this indictment in bar of another prosecution for the same offence. The King vs. Mason, 2 Term Reps., 581. The King vs. Manoz, 2 Strange, 1127. The statute of 18 Geo., 2, chap. 34, sec. 8, enacts that, "if any person shall win or lose at play or by betting at any one time the sum or value of ten pounds, or within the space of twenty-four hours the sum or value of twenty pounds, such person shall be liable to be indicted," &c. The form of the indictment under the latter cause of that statute as given by Archbald, after the usual commencement and stating the time and place &c., runs thus: J. L. Groner vs. the State of Florida.-Opinion of Court. VS. "by playing at and with cards, to wit: at a certain game of cards called rouge et noir, with one J. N., unlawfully did win of the said J. N. at one time and sitting, above the sum and value of ten pounds, that is to say," &c. And the learned author says, "all that the prosecutor has to prove is, that J. S. won of J. N., at one sitting, a sum exceeding ten pounds, at the game specified in the indictment." Here again it will be observed that the prosecutor is held to greater strictness than we deem necessary; that is, to prove the name of the game played. It is true that there is a class of cases where less precision is required, even in England, such as Barratry, Nuisance, Keeping a House of II Fame, Common Scold, &c., but these are exceptions to the general rule. Two cases somewhat akin in principle to these, were also cited on behalf of appellee, viz: the State McCormack 2 Carter's Ind. Reps. 305, and Dormer vs. the State, Ibid, 308. The first was an indictment for keeping a gaming house. In these cases the salutary rule, that where a subject comprehends multiplicity of matter, and a great variety of facts, there, in order to avoid prolixity, the law allows general pleading, was applied; but in the case of the State vs. Irwin, 5 Blackf., 343, it was held, that an indictment for unlawfully winning of several persons (naming them,) and others, a certain quantity of beef, &c., was bad for not naming all the persons with whom the bet was made, or stating that the names not given were unknown; and the case of Ball vs. the State, 7 Blackf., 242, which was an indictment for gaming, is to the same effect. It seems, therefore, to be a well settled rule, sustained both by decided cases and elementary principles, that in such cases as the one before us, the name of the person with or against whom the defendant played or bet, should be stated or alleged to be unknown, unless indeed, Kilcrease vs. White.-Opinion of Court. the rule has been relaxed by statute, which is not the case in this State. It may not be improper for us to add, that we have looked into the statutes of Indiana and Ohio, on the subject of gaming (the statutes on which most of the cases cited are based) and find them substantially the same as those of our State on the same subject. Let the judgment be reversed and the cause be remanded to the court below for further proceedings not inconsistent with this opinion. Per Totiam Curiam. WILLIAM E. KILCREASE, APPELLANT, VS. PLEASANT W.WHITE, APPELLEE. 1. The endorsee of an over-due promissory note takes it as against the maker, with all the equities arising out of the note transaction itself,but not subject to set off in respect to a debt due from the endorser to the maker of the note, arising out of the collateral matters. 2.This doctrine rests upon the law merchant which forms a part of the common law. The statute of set offs does not apply to it. Appeal from a judgment in the Circuit Court, for Gadsden county. John Erskine, for Appellant. P. W. White, for Appellee. DOUGLAS, J., delivered the opinion of the court. The appellee in this case sued the appellant in the Gads Kilcrease vs. White.-Opinion of Court. den Circuit Court in an action of assumpsit on several promissory notes. The third count in his declaration (upon which the question presented for our consideration arises,) is as follows, viz: "and whereas also, the defendant heretofore on the fifth day of November, A. D. 1853, made his certain promissory note in writing, and thereby promised to pay to the said Mary C. Rogers or bearer the sum of five hundred and sixty eight dollars and sixty-five cents, one day from the date thereof, (which period had elapsed before the commencement of this suit,) with eight per cent. interest thereon until paid for value received, and the said Mary C. Rogers then tranferred, assigned and delivered the same to the plaintiff; whereof the defendant then had notice, and then in consideration of the premises, promised to pay the amount of said note to the plaintiff according to the tenor and effect thereof." To which count the defendant put in a plea of set off in the usual form, of certain goods and chattels, &c., &c., alleged to have been sold and delivered by the said defendant to the said Mary C. Rogers after the making of the said promissory note, and before the commencement of this suit, and averring that the said promissory note was transferred, assigned and delivered to the plaintiff after it had become due and payable. To this plea the plaintiff demurred. 1st, Because the matters therein pleaded as matters of set off are not shown by said plea to be debts or demands against the plaintiff, but against a third party not a party to the suit. 2nd, Because the said plea does not show that the matters therein pleaded were a part of, or arose out of the transaction for which the said note was given, but that they were shown to be collateral transactions with the payee of said note; and the said plea is in other respects insuf Kilcrease vs. White.-Opinion of Court. ficient in law. Wherefore, he prays judgment, &c. The defendant joined in demurrer; the demurrer was sustained, the plea held bad, and a judgment was entered for the plaintiff from which the defendant appealed to this court, and we are now called upon to say whether that judgment is right or not. We promise in the out-set, that the question thus presented does not rest upon our statute of set off, (which is in substance the same as that of the English statute, so far as regards the set offs of mutual debts) but upon the principles of the law merchant; the statute does not apply to it. The plea, it will be observed, alleges that the note was transferred, &c., after it became due and payable; the demurrer admits that fact. For the appellant, it is insisted that "the authorities are abundant and uniform that where a note is negotiated after it is due, its non-payment is a suspicious circumstance," that it comes to the assignnee discredited and dishonored, and that the law is he takes it wholly on the credit of his assignor, and subject to all demands that existed against him at the time of the transfer, and the following authorities are cited in support of this position. 3 T. R., 81; 13 East, 497; 1 Campbell, 383; 5 John., 118; 19 Ibid, 342; 13 Peters, 66; 14 Ibid, 318-321; 1 Dennis, 583; 6 Hill, N. Y., 327; 5 Pick., 312; 1 Hill, S. C., 9, 15; 4 Mass., 370 -most of which we have examined, some of them have but a remote bearing upon the question, a few of them sustain the position assumed; most of them, however, which treat directly upon the matter of set off, say merely that the assignee of a note transferred after it has become due, takes it subject to all the equities that existed between the original parties to it, without entering into any explanation as to what those equities are. This loose manner of |