Volume 24 — Florida Reports

The appellees, Henry D. Sayre, Philip Halle and his wife, Minnie, filed a bill in chancery against Loudwick Warrock and his wife and the appellant, Jordan, on the 24th day of August, 1886.

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the -opinion.</p>

<p>Appeal from the Circuit Court for Clay county.</p> <p>Motion to strike from the petition of appeal the grounds assigned on behalf of the Guaranty Trust and Safe Deposit Company, and to dismiss the appeal as to said company.</p> <p>The facts of the case are stated in the opinion.</p>

Writ of Error to the Circuit Court for Polk county. This was a motion to dismiss the writ of error. An appeal in the same case was dismissed at the January term, 1887, for failure to make deposit or file bond to secure the Clerk’s costs. See 23 Fla., 58. The other facts of the ease are sufficiently stated in the opinion.

<p>This is a ease of original jurisdiction.</p> <p>The facts of the case are stated in the opinion.</p>

This is a case of original jurisdiction. This is'a proceeding by mandamus.

<p>The law as to the issuance of writs of error in civil and criminal causes, including cases of habeas corpus, and as to giving such writs the effect of a supersedeas, stated.</p>

<p>1. Contract to make a deed to a lot of land for the purchase money of which a promissoi'y note was given. A warranty deed in the usual form was tendered describing the land in the language of the contract. A plea that the deed was not a sufficient one for lack of description, but pointing out no defect or uncertainty in the description, was, on demurrer, properly held bad.</p> <p>:2. A judgment by default on sustaining demurrer to a plea, is error. If no leave be given to amend the plea or to plead anew, there should be final judgment on the demurrer.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Erauldiu county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Washington county.</p> <p>Judge Broome, of the Seventh Circuit, sat in place of the Chief-Justice, disqualified.</p> <p>The facts of the case are stated in the opinion.</p>

Judge Broome, of the Seventh Circuit, sat in place of the Chief-Justice, disqualified.

<p>Appeal from the Circuit Court for Alachua county.</p> <p>The facts of the case are stated in the opinion.</p>

This is a case of original jurisdiction. Held: for a valid election. By section 1, of article II, of the former chapter, the Mayor is to be elected by the qualified electors of the city at large.

<p>Writ of Error to the Circuit Court for Manatee county_</p> <p>The facts of the case are stated in the opinion.</p>

<p>Writ of error to the Circuit Court for Leon county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Volusia county</p> <p>Motion to dismiss.</p> <p>The facts of the case are stated in. the opinion.</p>

<p>Motion for an alternative writ of mandamus.</p> <p>This is a case of original jurisdiction.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Polk county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. An order made in term allowing “ sixty days additional time ” for settling a bill of exceptions, gives sixty days after the adjournment of the term.</p> <p>2. Where the bolder of a promissory note and ail endorser entitled to notice of its dishonor by the maker reside in the same plane, the holder has until the expiration of the day following that of its dishonor to give the notice.</p> <p>3. The rule laid down in Sanderson’s Adm’rs vs. Sanderson, 20 Fla., 292, as to notice when the parties reside in different places, and there is a mail on the day following the day of dishonor by the maker, approved.</p> <p>4. The burden of proving that the notice was duly given is oil the plaintiff and lie must show distinctly that it was given in the time required by law. Proof of the habitual promptness of the holder and his attorney in giving notice in such cases, and of the fact that the former put the note in the latter’s hands for collection “in two or three days, or loss time,” after its dishonor, is not sufficient to fi < the time at which notice was given in a particular case and the liability of the endorser.</p> <p>5. The charge of a judge as to the time within which notice of dishonor should be given to an endorser of a promissory note, should state definitely the time allowed by the law, and should not leave it to the jury to determine what is prompt notice or reasonable diligence in giving notice under the circumstances of the case.</p> <p>6. When the testimony does not support the verdict a new trial will be granted.</p>

The opinion in this case was filed at'the January term, 1887, but a petition for a rehearing was filed at the same term, which was held under advisement, and was denied at the January term, 1888. Judge McClellan, of the First Circuit, sat in the place of Justice Raney, who was disqualified : This suit was commenced January 6th, A. D. 1883, by the appellee, against appellant, in assumpsit.

<p>L Where a supersedeas bond in a chancery appeal does not identify with certainty the decree appealed from, the supersedeas will be vacated by this court,</p> <p>2. A supersedeas bond which does not state the court, nor correctly name the county in which the cause is pending, uor designate the decree appealed from, nor name with certainty the cause in which such decree was rendered, is not a proper supersedeas bond.</p> <p>3. Supersedeas vacated without prejudice to right of appellant to file a new bond and obtain a supersedeas according to the law and practice governing in such cases.</p>

<p>Writ of Error to the Circuit Court for Orange county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Writ of error to Circuit Court for Taylor county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Yolnsia county.</p> <p>The facts of the case are stated in the ¿pinion.</p>

The opinion in this case was filed at the January term, 1888, but appellants filed a petition for a rehearing, which was held under consideration until the -June term, 1888, when it was denied.

<p>1. A petition for a rehearing which suggests nothing that has not been fully considered by the court in making its decision, should be denied.</p> <p>2. A petition for a rehearing which is either a reargument of points made in the briefs and argument of the cause, or which assumes any new ground or position not taken before, is a violation of Supreme Court Rule 24 regulating the practice as to such petitions.</p>

' The appellant applied to the Circuit Judge, by petition under the statute, to have declared not lawfully made the assessment for taxes by the Provisional Municipality of Pensacola, of certain real estate of petitioner, alleging that said realty was not within the bounds of said municipality at the time the assessment was made.

Judge Finley, of the Fifth Circuit, sat in place of the Chief-Justice, who was disqualified. This case was before this court on an appeal taken by Epping, Bellas & Co., and an opinion was rendered at the June term, 1884. holding the first plea to be good and the second to be insufficient and reversing the judgment of the Circuit Court. See Epping, Bellas & Co. vs. Robinson, 21 Fla., 36.

<p>1. The general provision of section 4, of Article VIII, of the Constitution, declaring that “ the Legislature shall have no power to remove the county seat of any county, but shall provide by n-ener, law for such removal,” is a limitation upon the power of the Legislature, and the effect of the proviso thereto: “Provided, That in the formation of new counties the county seat may be temporarily established bylaw,” is to qualify such limitation, and reserve to the Legislature, when forming a new county, the power to establish for the same a temporary county seat-, which shall not be subject to such limitation, but shall be the county seat only until the permanent county seat shall be established, in the manner provided by the special act organizing the county.</p> <p>2. The grant of power to a Board of County Commissioners, or a majority of them, to locate the temporary county seat of a new county is not a delegation of the law making power, nor is it prohibited by the Constitution of this State in legislation organizing a new county.</p> <p>3. net approve 1 May 27, 1887, entitled “ an act to create and establish the county of Lake from portions of Sumer and Orange counties;” and providing for a location of a temporary county seat by the County Commissioners, or a majority of them, and also providing for sin oiecdun for the location of a “permanent county scat,” and that the piano obtaining a majority of all the votes cast shall be the county seat of said county, as provided by the general laws of this State, is not a delegation of the law making power nor a violation of the Constitution, in so far as the aet authorizes the temporary location of the, county seat; nor is the provision of the act for the location of the permanent county seat, within the limitation of septiou 4, of Article VIII, of the Constitution, upon special legislation, hot is excepted from sueh limitation by the proviso thereto.</p> <p>4. The removal of a county site is matter properly connected with the establishment of a county within the meaning of section 16, of Article III, of the Constitution, and the provisions of the above act, as to the permanent location of the county site, are covered by its title within the meaning of such constitutional provision.</p> <p>5. A mandamus will not lie to compel the performance of an official duty until there has been an actual default in the performance thereof by the officer upon whom it is imposed.</p>

<p>1. In a case of larceny where the convict is sentenced to pay a fine, with directions for commitment to custody until it is paid, the fine is the penalty, and the commitment only a process for enforcing the payment thereof.</p> <p>2. A sentence to pay a fine, and that the “ sheriff do keep you in cus tody until the judgment of the court is complied with,” is not itself a. violation of section 8 of the Bill of Rights of this State in regard to “indefinite imprisonment.” The sentence with award of process does not necessarily create any imprisonment; and neither the award nor a holding under it can he said to create indefinite imprisonment in the absence of circumstances shown making it so.</p>

Writ of error to the Circuit Court for Escambia county. On the I3th day of December last, B. C. White made affidavit before the County Judge of Escambia county that on the 5th day of the same month the plaintiff in error violated the following rule and regulation of the board of health of that county, viz: That the Port Inspector shall visit and inspect every vessel entering the Bay of Pensacola, and ascertain and report her sanitary condition, and until such inspection and…

<p>1. The Governor acts as a part of the law making power of the State in approving a bill passed by the Legislature. The function is not of an executive but of a legislative character.</p> <p>2. The bill as presented to the Governor for his action should be the same in its legal effect as to the same matter as it was when it passed the two houses of the Legislature. If subsequent to its passage by such houses, and before its approval by the Govern- or, provisions have been inserted in it which change the legal effect of it as to a matter regulated by it before such insertion, the entire approved bill will be void. If, however, the genuine provisions are distinct from and independent of the spurious, it seems that they will not be affected by the latter.</p> <p>3. A bill to revoke and abolish the existing municipal government of Palatka and to reorganize itsgovermnent, (chapter 5780, Laws of 1887,) and containing thirty one sections, passed the Senate. In the House of Representatives it was amended by striking out everything after the enacting clause and inserting in lieu thereof eight new sections. This amendment was concurred in by the Senate. Sections 9 to 31, inclusive, of the original bill, were enrolled with the eight amendatory sections, and numbered in the enrollment as they were-originally, and the amendatory sections were numbered from 1 to 8, consecutively. In this condition the bill was signed by the officers of the Senate and House of Representatives, and then presented to the Governor, who approved it. The provisions of the spurious sections as to some matters covered by the genuine sections are different in their legal effect from those of the genuine sections ; Held, The entire bill is of no effect as a law.</p>

Mrs. Daffin and Mrs. Perry file a bill, to which the husband of each is a party complainant, against the appellant, making the following allegations: That their mother,Mrs. Anti A. Clarke, in 1866, and up to the time of her death, owned and was possessed of certain described lands in Jackson county, and that on March 22, 1867, Mrs. Clarke and her husband, John Clark, save to one E. J. Merritt a paper purporting to be a mortgage on said lands, to secure the payment of a…

<p>Writ of error to the Criminal Court of Record for Duval county.</p> <p>The offence with which the plaintiff in error is charged is keeping a room for the purpose of gambling.</p> <p>The only testimony is that introduced by the State. It is as follows:</p> <p>Ed. Williams testified that on Friday, March 2d, 1888, between 10 and 11 o’clock P. M., he invaded certain premises on Newnan street, in Jacksonville, Duval county, Florida. That he was instructed by the Sheriff to take some men and raid what had been reported to him as a gambling house, known as the Atlantic Garden, situated on said street. That he went, accompanied by three others, and sent two men through the saloon, to come up the back way, while witness and another person took the front entrance. That in the meantime, as wituess sent the two men through the bar room, the party ran right in behind witness, and by the time witness got to the top of the stairs, there was a commotion; in fact, witness thought the roof was coming down, “ and they proceeded to comedown the stairs.” Witness stopped them and went up into the room and found some people, probably twenty-five or so; saw three tables in the room, chips upon the table, packs of cards upon one of the tables, and evidence of a game haviug been carried on. One party was sitting at the table and the balauce was stirring arouud the room. The room is on Newnan street, between Bay and Forsythe streets, and over what is known as the Atlantic Garden. .Saloon kept, witness thinks, by Mr. Zaum. Wituess took possession of the tables and they are at the jail. They are -two round tables, and one in the shape of a half moon, with a drawer aud a little slip, a small metal plate over a hole for slipping something down into the drawer, covered over with green cloth. The chips were not such as fly fr m wood when you cut it. Witness supposes they were made of celluloid, or bone — something of that sort; they were red, white and blue. These chips are generally purchased by those desiring to play at a game. He saw one man get $5 for the chips be had in his possession. There was $5.05 coming to him, so he said, but he got $5; this was the night in question. Witness did not, when he went up there, see the defendant, but he appeared ou the scene about two or three moments after. The defendant, when he came into the room, asked where Lee was. He came into the room rather excited, and said : “ Where’s Lee ?” Lee did not appear to be there. He asked the question two or three times. Witness did not know who Lee was, or where he was. Witness removed the furniture Saturday evening. Mr. Wooten was there when he moved it j witness talked with him. “ He was not there ; I met him on the street and he went up with me.” This was in Du-val county, State of Florida.</p> <p>On cross-examination he said that on the first table near the door there were some stacks of chips ; one party sitting at the table, two or three stacks of chips turned over and a pack of cards on the table. Witness, in reply to the question, if he considered always the presence of chips, cards and tables as evidence of gambling, replied, “ I consider it in connection with the surroundings.” The circumstances and surroundings were, “ a number of people around in the room, and a little knowledge I have of my own in going around the world would lead me to that conclusion.” Question. “ Then a part of your evidence is drawn from what you have seen in going around the world ?” Answer. “ Yes, sir, and what I saw there.” Did not see Wooten when he, witness, wont in. Saw some one pay the $5 in the room ; is sure of this; heard him say there was five cents more coming to him. Wooten, when he came in, came up the stairway witness had entered at.</p> <p>N. B. Broward testified that he was not at the room the night in question. That night Wooten asked him on what grounds he had arrested him, and witness told him as proprietor of this gambling house. The next day he asked witness if he, Wooten, could get a few articles out of there that were not of much value, but were of value to him, saying they were worth $8 or $10, and that he would not move any of the fixtures, and witness told him if he did not move any of the fixtures in the house he had no objections to-his moving anything that was of no consequence to witness.</p> <p>Captain Floyd testified that he knew of the Atlantic Garden on Newnan street, and has been there, and that the room is used for card playing. He has seen Wooten deal cards there, has seen him up there; has seen him deal and tell his man, Mr. Lee, what to do. Lee was dealing. Question. “You say you have seen him tell Mr. Lee what to do. Who seemed to be in control or management of fireplace ?” Answer. “ Mr. Wooten seemed to be the man.”' Witness has been there more than once. Question. “Since when ; how long, recently of course ?” Answer. “ Three-weeks past.”</p> <p>Cross-examination :</p> <p>Has seen others than Mr. Wooten deal, has seen Lee deal, never saw Lee give any orders. Witness has never dealt there. Never heard any one but Wooten give orders-there with regard to the running of the game. Question. “ In regard to running the house?” Answer. “Mr. Lee gave orders to the man there.” Saw Wooten there first, about eight or ten days ago. Question. “ Didn’t Mr, Wooten seem to be a player there at the time. Wasn’t he a player?” Answer. “Yes, sir, he played some.” Has seen others aside from Mr. Wooten and Mr. Lee deal there.</p> <p>Mr. Zaum, another witness, on being asked whether a room above his place has been rented, and, if so, who made application to him to rent it recently, replied : “Yes, sir, I know very little about it; all I know is Mr. Wooten came to me and asked me if the room was to let. He asked me if I knew him, I said no sir. I said to him that if he want to rent the rooms, the rooms were to let for family use, lodging rooms or for office, and I did not know Mr. Wooten, so I sent him to Mr. Rebston. He said he knew Mr. Rebston. I did not know him then at that time, the only time that I ever seen the gentleman before in my life. Witness says he, witness, was not there when Wooten met Mr. Rebston. That “ he (Wooten) went to Mr. Rebston and dat all I know about it. I haven’t seen Mr. Wooten for some time. I don’t ask Mr. Rebston; Mr. Rebston don’t ask me.”</p> <p>Cross-examination:</p> <p>Question. “ Has anybody paid the firm any money for that room?” Answer. “No, not to me.” Question. “Do you know who has been the tenant or keeper of that room ?” Answer. “ That I cannot say. I goes down in the morning and opens up and knows nothing about business whatever.”</p> <p>The other facts are stated in the opinion.</p>

Writ of error to the Crimiual Court of Record for Duval county. The facts of the case are stated in the opinion and in the preceding case of Wooten vs. the State.

<p>1. Plaintiff in error’s counsel requested the court to instruct the jury:' “If you believe from the evidence that there is a question of the ownership of this hog, no matter how slight it may be between Joseph Rowe and Peggy Mitchell, you must find for the defendants,” was properly refused, it was too broad.</p> <p>2. A charge that if the jury believe from the evidence that the defendants killed the hog in question, honestly believing at the time that it belonged to Rowe, they committed no offence against the laws of this State, would have been correct.</p> <p>3. When there is conflicting evidence it is the duty of the jury, if possible, to reconcile the conflict, and after doing so, if the defendant is convicted, and there is evidence sustaining the verdict,' and there is no question as to the credibility of the witnesses, and there is nothing to show that the jury were influenced by any improper motive, this court will not set the verdict aside.</p> <p>4. The court will not reverse the finding of the jury upon a question’ of fact, unless the verdict is so clearly and manifestly against the weight of evidence as to suggest the presumption that it was-produced by influences other than a proper consideration of the testimony.</p>

<p>1. The plaintiff in error was tried under section 11, Chapter 3413, laws-of Florida, for carrying on the business of dealer in spirituous, vinous and malt liquors, without the license required by statute authorizing him to carry on such business; and to warrant a conviction, it was necessary for the State to prove that the liquor sold was either a spirituous, vinous or malt liquor. The evidence shows that the plaintiff in error sold beer, but this is not sufficient unless it is shown that the beer sold was malt beer.</p> <p>2. The courts will take judicial notice that lager beer, ale, porter and any other liquor made of malt, is a malt liquor.</p>

<p>Appeal from the Circuit Court for Jackson county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. In an action of ejectment the defendant pleaded not guilty, and after-wards, filed with leave of the court, a special plea to the effect that the plaintiffs claimed title to the land described in the declaration, as heirs of the intestate of the defendant who is-still administrator of his estate, and such estate remains unsettled-Upon motion of the plaintiff to require the defendant to elect between the two pleas, he elected to stand upon the special plea: Held, That as the matter set up in the special plea could have been proved under the general issue of not guilty, the court should, of its own motion, have struck out the special plea.</p> <p>2. A present right of possession is necessary to a recovery in ejectment.</p> <p>3. Ejectment does not lie in behalf of an heir as against an administrator to recover possession of land to which the latter is entitled as an asset of the estate.</p> <p>4. An administrator is not entitled as against the intestate’s heirs to the possession of land exempt as the homestead of the intestate from forced sale for the payment of his debts under the Constitution of 1868, and ejectment will lie in behalf of the heirs against the administrator to recover possession of such land from the administrator, where the land occupied by the intestate as a rural homestead at the time of his death consisted of 160 acres or less, or where prior to his death he has, when actually occupying more than 160 acres, filed a written declaration of his homestead in the probate office of the County Judge, under act 1869, §11, p. 531, McC’s. Digest.</p> <p>5. Where one or more of the heirs is a minor, or otherwise incapable of binding himself, and the ancestor dies actually residing upon or occupying as his homestead, or home place, a tract of rural land exceeding-160 acres, and not having filed a written designation of a part thereof as his homestead, ejectment will not lie in behalf of such heirs, but the proper remedy for setting aside the homestead is by bill in equity under §2, chapter 3246, acts o 1881; §54, p. 166, McC’s. Digest. Whether ejectment would lie-r in case of such occupaiion of rural lands if all the heirs were adults and capable of acting for themselves, Quaere.</p>

<p>1. The quarantine act of 1885, taken by itself alone, does uot, by virtue of the general powers it confers on County Boards of Health, authorize charges to be made against a vessel for quarantine purposes.</p> <p>2. Where several acts are in pari materia, being on the same subject, and having in view one object, they should be construed to- . gether as one system, although containing no reference to each other.</p> <p>3. The County Boards of Health, under the act of 1885, construing that act in connection with the quarantine acts of 1879 and 1883, are authorized to make charges against a vessel for quarantine services, if under the authority given by the latter act they have made proper provision therefor.</p> <p>4. A reasonable charge according to tonnage of the material for the use of a crib erected by the Board for receiving ballast, is proper where the discharge of the ballast is for ihe purpose of disinfection, but it is not proper to base any charge on the tonnage of the vessel.</p> <p>5. A contract made under duress cannot be enforced, but if bad only for that cause, it is voidable, and if ratified after the duress has ceased, it becomes valid and enforceable.</p>

<p>Appeal from the Circuit Court for Santa Rosa county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Clay county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. B. and S. traded buggies, and it was agreed that S. should take B.’s new buggy at two hundred and fifty dollars, one hundred dollars of which to be paid by S. to B. in S.’s old buggy, and the balance or difference between the buggies to be paid in money. S. took possession of and held the new buggy, but never delivered or offered to deliver the old buggy to B., nor did S. pay or offer to pay B. for the new buggy: Held, that B., the plaintiff, could recover the value of the new buggy on the count of the declaration for goods sold and delivered by the plaintiff to defendant, at his request.</p> <p>2. B., the plaintiff, sold lumber to S., the defendant, at plaintiff’s mill, which was shipped to the defendant on the L. & N. R. R. At the trial, waybills of said company were admitted in evidence, which showed the weight of lumber shipped by plaintiff to defendant, on different dates, and the evidence showed that the waybills were made out and sent by the company in the due course of their business, and that the defendant paid the freight on the lumber so sent by said waybills. This was not error.</p> <p>3. The court charged the jury that if they found from the evidence that plaintiff offered to sell defendant a new huggy for two hundred and fifty dollars, or to exchange buggies with defendant, the defendant to pay one hundred and fifty dollars between the buggies, and defendant, after the proposition, possessed himself of plaintiff’s new buggy without paying him one hundred and fifty dollars, and without delivering his old buggy to plaintiff, or offering to deliver it at the time he possessed himself of the plaintiff’s new buggy, or within a reasonable time thereafter, then he would be liable for the value of the said buggy, as fixed by the plaintiff' when he made the offer of sale or exchange: Held, correct.</p>

<p>Appeal from the Circuit Court for Alachua county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval County.</p> <p>The facts of the case are stated in the opinion.</p>

Upon motion for an order enjoining appellees from prosecuting their suit at law -in this cause, pending an appeal in same. The facts of the case are stated in the opinion.

<p>Appeal from the Circuit Court for Escambia county.</p> <p>The facts of the case are stated in the opinion.</p>

Judge Broome, of the Seventh Circuit, sat in the place of Chief-Justice Maxwell, who was disqualified. On July 25, 1881, John T. Howard (one of the appellants) and John C. Walker entered into a written agreement with the Pensacola and Atlantic Railroad Company, of which agreement the following are provisions material to the case under consideration : 1.