Volume 25 — Florida Reports

<p>Appeal from the Circuit Court for Madison county.</p> <p>Action on the case.</p> <p>The facts in the case are stated in the opinion.</p>

Judge McClellan, of the First Circuit, sat in the place of Mr. Justice Raney, disqualified. The facts of the case are stated in the opinion.

Court for Leon County. Judge McClellan, of the First Circuit, sat in the place of Mr. Justice Raney, disqualified. The facts of the case are stated in the opinion.

<p>1. In an action brought by a passenger against a railroad company to recover damages from the company for wrongfully expelling him from the defendant’s train, it is not necessary for the declaration to allege that the passenger, at the time of his expulsion, was complying with all the reasonable rules of the cempany, nor to allege that the passenger was not about to violate any such reasonable rule at the time of his expulsion.</p> <p>2. The question as to whether a contract or agreement entered into be- ■ tween the railroad company and a line of steamers plying be- ' tween Jacksonville and Sanford was entered into in good faith, and was legal and binding, or that such contract constituted an oppressive monopoly, and hence was not legal and binding, is a mixed question of law and fact, and it was properly left to the jury to be passed upon by them.</p> <p>3. The reasonableness of a rule prescribed by a railroad company, for the government of its business, is purely a question of law to be decided by the court, and not a question of fact to be passed upon by juries.</p> <p>4. A rule adopted by a railroad company, which inhibited passengers on their trains from wearing the uniform cap of a line of steamers running in opposition to a line of steamers running in connection with the company, was not reasonable, and hence not binding on the public.</p> <p>5. The statute (sec. 41, chap. 1987, Laws of Florida,) prohibits the expulsion of a passenger by a railroad company for non-payment of fare at any point other than a usual stopping place, or near some dwelling house. When, however, a passenger wantonly 1 violates any other reasonable rule of a railroad company, the obligation to transport him ceases, and the company may expel him from the irain at any convenient and safe point that may be se. lected by the officer in charge, no more force being used than may be necessary for such purpose. This is a common law right, and has not been restricted by statute as in cases of non-payment of fare.</p> <p>6. The court charges upon the law of the case, and it is the duty of the jury in their verdict to conform thereto, but if they fail to do so it is the duty of the court to set aside the verdict.</p>

<p>1. Tlie general rule is that a party whose title to land is legal in its character, must have possession of the land to entitle him to equitable relief against a cloud upon his title. Possession is not essential where the title is equitable.</p> <p>■3. Possession by a duly authorized agent having charge of all the land and engaged in keeping off tresspassers, is sufficient to sustain the equitable jurisdiction in favor of owners of legal title, who are themselves non-residents.</p> <p>3. Where the instrument or proceeding complained of as constituting a cloud upon title is void upon its face, or where the instrument is not void upon its face, but the party claiming under it must, in order to recover upon it, necessarily offer evidence that will inevitably show its invalidity and destroy its effect, such instrument is not a cloud upon title within the legal definition of the term.</p> <p>4. An administrator’s deed purporting to convey lands sold by him under an order of a court which, as to its power to make such an order, is a court of special and limited jurisdiction, is not, nor are such deed, and order and other, sale proceedings, a cloud upon title when the facts or fact essential to the court’s jurisdiction to make the order do not appear bn the order or the proceedings upon which such order is based.</p> <p>5. A tax deed regular upon its face, and which a statute has made prima facie evidence of the regularity of all the¡ proceedings connected with the assessment and sale, but which is founded upon a void assessment, is a cloud upon title.</p> <p>6. Neither the general revenue law of 1869, chapter 1718, as amended in 1872, by chapter 1887, nor that of 1874, chapter 1976, authorized a Collector of Revenue to assess lands for taxes. An assessment of land made under either of said statutes by a Collector of Revenue on a tax roll of 1873, after the same had been delivered to him by the Assessor for the collection of taxes, was a nullity and conferred no power upon him. A sale made by him under the above act of 1874, and a deed executed by the Clerk of the Court, pursuant to such sale, conveyed no title to the purchaser, and the deed is not within the protection of the 63d section of the said act, limiting the grounds upon which, and the time within which, an action to set it aside may be commenced.</p> <p>8. The County Court as it existed under the Constitution of 1868, prior to the amendment of 1875, was, in its power to sell the lands of decedents for the payment of debts, a court of special and limited statutory jurisdiction, and not one of general and original constitutional jurisdiction over the subject of such sales.</p> <p>8. Being a court of special and limited jurisdiction, an order made by it for the sale of land of a decedent is not of itself, independent of a recital of the jurisdictional fact in it, or in the sale proceedings culminating in it, evidence that the court had jurisdiction of the subject of such a sale.</p> <p>9. Prior to the legislation of 1870, §40, et seq., p. 86, etseq., McClellan’s Digest, as to such sales, an exhaustion of the personal estate of the decedent was essential to the jurisdiction or power of the County Court to order a sale; and unless the fact of sucli exhaustion appears in the order or somewhere in the proceedings upon which it is based, the order is eoram non-judice and void even upon a collateral attack. If the fact of such exhaustion appears anywhere in such proceedings, the order of sale, though it may he silent upon the subject of exhaustion, is nevertheless an adjudication of the existence of the fact of such exhaustion.</p> <p>10. Adverse possession of land under claim of title founded on a written instrument must, to he effective against the true title, he continuous for the period of seven years.</p>

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

<p>A rehearing will not be granted where the questions which the petition alleges to have been omitted to be decided by the court are necessarily determined, though not in express terms, by the determination of an alternative question in the case.</p>

<p>Tlie seventh section of the delinquent tenant act, chapter 3248, Laws of 1881, § 24, p. 705, McClellan’s Digest, was, in so far as it authorized the Circuit Court to try de now, or, in other words, as an original cause and anew upon its merits, a case appealed ■ under such statute, from a judgment of the County Judge, inconsistent with §§ 8 and 10, of Article VI, of the Constitution of 1868, as amended in 1875, and inoperative. The purpose and effect of the § 10, of Article VI, was that the appeal in such cases should he to the appellate and not to the original jurisdiction of the Circuit Court, State ex rel. vs. King, 20 Fla., 399, approved.</p>

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

<p>1. Real estate purchased by a married woman and to whom a deed thereof is made is her separate legal property.</p> <p>2. When a married woman, who is the loga' owner of real estate, purchases with the consent and co-operation of her husband, materials to be used for the construction of improvements thereon, and the materials have been thus used, a court of equity may apply the rents and income of the property to payment for sue*1 materials and appoint a receiver for this purpose.</p> <p>3. Upon an appeal taken by a complainant from a filial decree dismissing a bill in equity, an interlocutory order adjudging certain of1 the defences urged against the bill to be insufficient will be reviewed at the instance of the defendants though they have not' appealed.</p> <p>4 A judgment dismissing an action at law as to one of the defendants therein because the court of law had no jurisdiction of the cause, and as to the other defendant on account of an improper joinder of defendants, is not a bar to a subsequent suit in equity brought to subject the property of the former defendant, a married woman, to the payment of the same cause of action. Such judgment at law is not a judgment on the merits of the plaintiff’s' claim as to either of the defendants.</p>

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

The facts of the case are stated in the opinion of the court. Judge McClellan, of the First Circuit, sat in the place of Chief Justice Raney, who was disqualified.

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

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

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

<p>H. and two others made their promissorynote payable to J. R. H. or bearer, upon which R., the bearer, brought suit. Process was served on W. only. At the appearance term 1861 an attorney-at-law appeared for the defendants and continued to appear for them hill 1867, whenjudgment was rendered against the defendants. Execution issued and there were sales of land thereunder at different times from 1871 till 1887. The regularity of the proceedings was not questioned till more than 26 years after the commencement of suit, and more than 20 years after the rendition of the judg. ment, when, after the death of the attorney. H., (in an action of ejectment instituted against R. to recover a part of the land sold,) without offering to show that ho had a meritorious defense to the note, or that ho had not previously known of the former judicial proceedings and sales thereunder, proposed to show, by his own oath, that he had not been served with process in the former action, and had never employed or authorized the attorney to appear for him therein.</p> <p>This evidence was excluded.</p> <p>Held, That under the circumstances there was no error, in excluding the evidence so offered by H.</p>

The facts of the case are stated in the opinion of the court. STATEMENT'OF CASE. Under and by virtue of an order issued out of the Probate Court of Alachua county, on the 24th day of August, 1885, S. P. Bevill, as the commissioner named in said order advertised to sell on the 5th day of October, 1885, certain land therein described as belonging to the estate of John Yanee, deceased.

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

STATEMENT. Appellee filed his bill in equity in Alachua county Circuit.

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

<p>1. While the statutory proceeding in bastardy is quasi criminal, when the case gets into the Circuit Court it becomes a civil action between the prosecutrix and the defendant, and the rules of evidence which govern in other civil actions govern in this ; so that it is not error to charge that the preponderance of evidence, and not the benefit of a reasonable doubt, must be the guide for the jury in finding their verdict.</p> <p>2. Being an action in which the prosecutrix is a party, her declarations in conversation with a witness for the defendant in regard to the matter in issue may be proper evidence, and it is error not to permit questions to the witness as to such conversation, because she is a party though she may be also a witness ; but if intended to impeach her credit as a witness merely, such questions would not be proper iu the absence of the usual predicate.</p> <p>3. A charge of the court as to the period of gestation of a healthy woman for a healthy child, is a charge of fact not permitted by our practice, and erroneons.</p>

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

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

The facts of the case are stated in the opinion of the court. STATEMENT OE CASE. The respondent who was complainant below filed his bill to foreclose a chattel mortgage. This mortgage was executed April 24th, 1886, the debt it was intended to secure became due November 15th, 1886, but no attempt was made to record the mortgage until February 28th, 18S7, the day the bill of complaint was filed.

Writ of Error to the Criminal Court of Becord for Orange-county. The facts of the case are stated in the opinion of the court.

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

<p>1. The enforcement of a tariff of freight and passenger rates which will' not pay the expenses of operating a railroad, held, upon the pleadings, to show an abuse of the discretion given to Railroad Commissioners by the statute authorizing them to prescribe reasonable and just rates of freight and passenger transportation, and to amount to a taking of the railroad company’s property without just compensation.</p> <p>2. The effect of the provision of the Railroad Commission statute that the schedules of rates fixed by the Commissioners shall, in any action brought in the courts of this State against a railroad company, be deemed and taken as sufficient evidence that the rates fixed therein are iust and reasonable rates for the transportation of passengers and freights and cars, is not to make such schedules conclusivo ms against judicial inquiry, but is to provide a new mode of proving the reasonableness and just character of the rates fixed by the Commissioners, and make the schedules competent and adequate evidence of the correctness of the action of the Commissioners in the, absence of countervailing proof that they have exceeded their powers, or abased their discretion and invaded some right of the railroad company.</p> <p>3. Where a tariff of freight and passenger rates has been established by the Railroad Commissioners, and the railroad company and the Commissioners differ as to whether such rates, considered as a whole, will prove remunerative to the company and there is-room for a difference of intelligent opinion on the question, the-courts cannot interfere or substitute their judgment for that of the Commissioners, but the tariffs as fixed by the Commissioners must, in so far as the courts are concerned, be left to the test of experiment.</p> <p>4. The courts have no power to make freight of passenger tariffs.</p> <p>5. The courts will not interfere or grant any relief to a railroad company upon a complaint made as to one or several rates only, or where the freight and passenger rates established by the Commissioners are not assailed as an entirety.</p>

<p>1. Proceedings in quo warranto are governed by the same principles- and rules that govern in other civil actions ; and in such a proceeding a motion to strike out a plea or answer or some matter thereof for irrelevancy, is proper, but not proper on the ground of insufficiency in law. That should be met by demurrer. Non usurpmit is not a relevant plea in quo warranto brought by the Attorney-General to oust a party from public office, but allegation of the party that he was elected to the office is relevant»though it may not be sufficient of itself to prevent ouster.</p> <p>2. In such quo warranto, whether brought on the relation of one claiming the office or not, the burden is on the respondent to show that he holds the office rightfully; and it is not enough to show due appointment or election, but for full and complete title he must also show that all the requisites required to qualify him to take possession of the office have been complied with. If an oath, bond and commission be required, as in the case of clerks of the Circuit Court in this State, he will be ousted if he has not qualified accordingly.</p>

<p>1. Two systems of law which are entirely repugnant to each other cannot be in force in the same locality at the same time.</p> <p>2. Whenever the local option Article of the Constitution prohibiting the sale of intoxicating liquors, wines or beer is put in operation in uny county or any election district, it suspends, during the period of its operation therein, the provisions of all statutes authorizing or licensing the sale of intox eating liquors, either spirituous, vinous or matl, in such county or district.</p> <p>3. Where two counts of an indictment charge a violation of a system of law which authorizes the sale of certain liquors if a license has been obtained in a manner prescribed by it, and the other count charges the violation of a system which prohibits any sale of such liquors in a part of the territory covered by the allegations of the former counts, the two sets of counts are irreconcilably repugnant, and the indictment insufficient in law. It cannot be known upon which system the State intends to rely as being in force in the territory covered by the third count.</p> <p>4. Where the counts of an indictment are based, some on one system of law and the other on another system, which systems cannot be in operation at the same time in the same territory, and the verdict is “guilty as charged in the indictment,” and the sentence is of a character authorized in the case of a lawful conviction under either system, the verdict and sentence will be set aside. It cannot be known upon what law the verdict and sentence are founded.</p> <p>5. Neither the local option Article of the Constitution, nor the statute enforcing the same, prohibit the sale of liquors, wine or beer that is not intoxicating.</p> <p>6. An indictment for selling liquor, wine or beer in a county or election district in which the local option Article of the Constitution is in force, must allege that the liquor, wine or beer charged to have been sold was intoxicating, unless it names a specific liquor, wine or beer, of whose intoxicating nature the courts take judicial notice.</p> <p>7. That courts can take judicial notice that “orange mint,” or “elixir of orange mint,” or whatever might fall under the classification of “patent alcoholic bitters,” is intoxicating, quaere.</p> <p>8. Whenever an indictment alleges that the local option Article of the Constitution is in operation in a county or election district, the allegation must be proved.</p>

<p>1. When an appeal has been dismissed on motion of the appellee, and because no final judgment has been entered in the lower court, the subsequent entry of judgment in the lower court, nunc pro tunc, is no ground for vacating the order of dismissal and reinstating the cause in the appellate court.</p>

<p>Where an appeal at law is entered during the term of the Circuit Court at which the judgment appealed from was rendered, but the appeal bond is not given until after the expiration of thirty days from the adjournment of the term, the appeal will be dismissed.</p>

<p>I. The plaintiff instituted attachment proceedings against the defendants ; the defendants traversed the affidavit and moved to dissolve the attachment on the issue made by the traverse, and also because of the illegality of the bond ; a jury was empanelled to try the issues, but before any evidence was submitted, counsel for defendants called the attention of the court to the pendency of the question of the illegality of the bond, and asked a ruling thereon, which the court refused. The jury tried the issue made by the traverse, and found for the plaintiff; counsel again called up the question of the illegality of the bond, and requested the court to determine the same, but the court again refused to make any ruling thereon, “ because not made until after the jury wasempanelled to try the ground of fraud Held, That the refusal of the court to hear and determine the question as to the illegality of the attachment bond was erroneous.</p> <p>3. A power of attorney, under seal, is required to authorize an agent to execute a bond in the name of the principal under the attachment laws of this State.</p>

<p>1. A decree of foreclosure againsi a person alleged to be a subsequent incumbrancer and who is shown by the pleadings and testimony to have parted with his lien on the property covered by the bill before he was made a party to the suit, and who does not appear to have had any other interest in the property, is errroneous. So is a decree giving such party a right to redeem against the complainant’s mortgage : a dismissal of the bill as to him is proper.</p> <p>2. Where a person applies to be made a party to a suit inequity andan order is made that the ciuse stand over, with liberty to the complainant to'amend his bill, by adding proper parties, if he should be so advised, such order does not make the applicant a party to the bill, nor create a lis pendens as to him prior to his being made a party.</p> <p>3. Though where a person who is made, at his own suggestion, a party to a suit in equity, has, as is shown by the record, parted with his interest in the property in litigation be'ore being made a party, the bill should be dismissed as to him, yet he should be required to pay all costs occasioned by his action.</p>

<p>Appeal from the Circuit Court for Orange county.</p> <p>The facts of the ease are stated in the opinion of the court.</p>

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

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

In the matter of the Executive communication of January 12,1889, relative to the filling of vacancies in elective county offices: Executive Oeeice, 1 Tallahassee, Ela., Jan. 12,1889. j To the Honorable, the Justices of the Supreme Court of Florida : Gentlemen : I have the honor to ask your opinion as to the interpretation of the Constitution of this State in regard to my executive duties and powers thereunder, in the following cases, to-wit: Certain persons who were elected…

The facts of the case are stated in the opinion of the court. Judge McClellan, of the First Circuit, sat in the place of Raney, C. J., disqualified.

<p>1. Where a contractor is employed to do a job of work and the work is done by him, bis servants or laborers, in such negligent manner as to cause injury or damage to a third person, he, and not his employer, is responsible to the party injured or damaged ; but this rule does not apply where the employer has control and direction of the work. In that case he is liable.</p> <p>•2. M., S. & K., landlords of B. & R., undertook to repair a gutter over the partition wall between their adjoining- stores, and there was such negligence in the work as to cause damage to the goods of the tenants, B... & R., who sued the landlords to recover for the damage. The defence of M., .8. & K., that they employed a contracting company, through its foreman, to do the job, and the workmen 'who did it were the servants of the company : Held, Not to be sustained, because from the facts it appears that the . control of the work was not in the company, but.in M., S. & K.</p>

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

<p>1. A plea of'failure of consideration sworn to, throws fie onus on plaintiff, and that is not met without other proof than the note itself.</p> <p>2. When a party sells another a tract of land and represents to the buyer, who had never sei-n the land,- that there was at the time a certain number of orange trees, pineapple plants, &<\, on the same, and it being agreed by the seller that if the number of trees. &c., were not on the land as he represented them to be, he was to allow the buyer a “draw-back ” for the deficiency, and it turns out that there is a large deficiency in the number of trees, plants. &c., the seller is responsible to the purchaser for such deficiency.</p>

<p>1. After a full trial of a cause, and after verdict upon the matters embraced in the declaration and pleas, the absence of a similitw to a plea is not ground for reversal, the similiter not having been insisted upon by the opposing party or required by the court.</p> <p>2. Where B. agreed to erect a house for W., and H. furnished the lumber to build the house upon W’s agreement to pay him for the same when placed on the cars, and the bill therefor was presented “ O. K.’d” byB.; and H. put the lumber on the cars as per agreement, and W. paid $200 on the bill presented without being “0. K.’d” by B., but refused to pay the balance of the bill for no other reason than that it was not “0. K.’d ” by B.: Held, that W. was liable for the balance of the bill.</p> <p>3. It is not error for the court to refuse to charge upon the assumption of a fact that does not exist.</p>

<p>1. It is uot necessary that the uotice required by Supreme-Court Rule 17 of a motion to dismiss an appeal on account of not filing a transcript of tire record in tbis court, should be served by its Sheriff, or by any officer. Rule 20 regulates the service of all notices required by the rules or orders of the court. Service of such a notice made by a Sheriff, other than the Sheriff of this court, through a deputy, as in the case at bar, is sufficient.</p> <p>2. Where a party admits by the terms of his motion to set aside the service of a notice, that service of such notice has in fact been,made on him, no proof of the service need be made by the party giving the notice.</p> <p>3. What “process” of the Supreme Court can be served only by its Sheriff, in person or by his deputy, considered.</p> <p>4. If good cause for failing to file a transcript of the record or proceedings, in the Supreme Court within the time required Iw law, is not shown by the appellant, the appeal will be dismissed and damages allowed the appellee as for an appeal taken merely for delay.</p> <p>5. An appeal was entered in January returnable to the first day of the succeeding June Term of the Supreme Court. An attorney for the appellant applied at the office of the Clerk of the Circuit Court four days prior to the first day of such term for the papers in the case, aud the deputy clerk then in charge of the office said he did not know where they were, and deposes that he did not know ; and then the attorney searched for the papers among the files where they should have been, but did not find them ; his purpose, as he states, being to make up a transcript for the Supreme Court, which transcript, he says, he could have finished in time. There is a certificate of the Clerk of the Circuit Court that to his knowledge the papers were in the office from April 11th to June 15th, excepting a few days absence in Tallahassee, where they were sent by an order of the court: Held, That whether this certificate be considered or ignored, no “good cause ” has been shown for the omission to file the transcript in the Supreme Court on the first day of its June Term.</p>

STATEMENT. Samuel J. Peacock, James E. Cashen, Samuel Houston and Moses McDonald have obtained a writ of habeas corpus returnable before this court.

<p>Writ of error to the Circuit Court for Marion county.</p> <p>The facts of the case arc stated in the opinion of tlie court.</p>

<p>1. Upon a trial for murder the prisoner offered in evidence threats made against himself by the deceased, but as the evidence in the case failed to show any overt act on the part of the deceased at the time of the homicide indicating an intention to then execute ' his threats, the evidence so offered was properly excluded by the OOUrt.</p> <p>2. Where illegal testimony has been admitt d, it is the duty of tli e court to strike it out.</p> <p>.3. If a man, whose life has been threatened, meets and slays his adversary under such circumstances as show that' at the time his adversary was making some demonstration indicating- an intention to then execute his threats, and that he believed, and had reasonable ground to believe, that his life was then in danger, or that he was in danger of great bodily injury, such homicide is justifiable, although it jn-iy turn out that the deceased had no intention at the time to execute his threats. The party threatened is to judge from the circumstances by which he is surrounded and as they appear to him ; but when a man acts upon appearances and takes the life of his fellow man, he does it at his peril, and he cannot justify such killing unless there are circumstances which would induce a reasonably cautious man to believe that it was necessary to save his own life, or to save himself from great personal injury.</p> <p>4. When a man has been threatened lie may go wherever his legitimate business calls him, but he has not the right to lie in wait for and slay his adversary, and if he does so it is murder in the first degree.</p> <p>5. Where the court gives an erroneous charge which is favorable to the accused, such charge is no ground for reversal.</p> <p>6. Where counsel make improper statements to the jury, it is the duty of the opposite party to call the matter to the attention of the court, and when this is done it is the duty of the court to rule upon it; but where the objection was not insisted upon and no ruling had, the appellate court cannot consider it.</p> <p>7. The record'of a judgment in a criminal case contains this entry: “Thereupon came a jury, to-.vit: (naming them) twelve good and lawful men, who were duly elected and sworn to well and truly try and true deliverance make between the State of Florida and the prisoner at the bar Held, That is sufficient to show that the jury were properly sworn in accordance with the statute, to “well and truly try, and true deliverance make,” between the State of Florida and the defendant, according to the evidence.</p>

Writ of Error to the Criminal Court of Record for Orange county. The tacts of the case are stated in the opinion of the court.

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

Writ of error to the Circuit Court for Duval county. Motion to dismiss writ of error and quash scire facias. The facts of the ease are stated in the opinion of the court.

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

<p>1. A civil case at law cannot be transferred from the Circuit Court in which it is pending to another Circuit Court because of the disqualification of the Judge to try it, except on consent of all the parties to the action. Section 19, Article V, Constitution of 1885.</p> <p>2. That mandamus is not the proper remedy to compel a Judge of a Circuit Court to which an action has been transferred from another Circuit Court to hear the cause, quaere ?</p>

<p>1. Promissory notes and a mortgage securing tlie same cannot be enforced on the basis of a different consideration from the one for which they were given.</p> <p>3. Where there is not; only irreconcilable conflict in the testimony of the opposing parties, but the negotiations between them as set out in the evidence seem to support the conclusion reached by the Chancellor, his decree should be affirmed on appeal.</p>

<p>1. The plaintiff instituted ejectment against defendant for certain lands. Defendant claimed title under tax deed, which was in evidence. The plaintiff then offered in evidence the assessment roll to show that the land had not been assessed for taxes, but the evidence was ruled out, because the tax deed had been recorded more than a year before the suit was brought, and that aft-r one year from the recording of the tax deed plaintiff could r ot question the valadity of the same, or the regularity of the sale under which the land was sold, unless he allege, and prove, that lho land was not subject to taxation, or that the taxes had been paid, or that the land had been redeemed : Held, To be error.</p> <p>2. Adverse possession, in order to bar a recovery by the true owner, must have continued without interruption during the statutory period of seven years.</p>

<p>Appeal from the Circuit- Court for Leon county.</p> <p>The facts of the case are stated in the opinion of the court.</p> <p>Motion to strike the bill of exceptions.</p>

<p>Appeal irorn the Circuit Court for Putnam county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>1. A male person over eighteen years of age, whose disabilities of minority have been removed by a judgment of a ^Circuit Judge, under the provisions of “An act to authorize the several Judges of ihe several Judicial Circuits of the State of Florida to remove the disabilities of minors,” approved June 3d, 1889, is entitled to be examined as to his qualifications to pactice law, the same as if he were twenty-one years of age, upon complying with the other requirements of the statute and rule of court regulating such application.</p> <p>2. Section 20 of tbe Legislative Article of the Constitution prohibits special legislation removing the legal disabilities of a minor.</p> <p>3. Mandamus is, under the practice of this State, a proper remedy where one entitled to be examined for admission to practice law, has been refused an examination.</p>

<p>Appeal from the Circuit Court tor Osceola county.</p> <p>The facts of the case are stated in the opinion of the court.</p> <p>Motion to vacate supersedeas.</p>

<p>I. The right given by legislation to have a jury trial in a contested will ease in the Circuit Court prior to the adoption of the Constitution of 1868 was not intended to be preserved by that Constitution on a similar trial in the County Court.</p> <p>2. Under the Constitution of 1868J as amended in 1875, the County Court had power to try a contested will case without a jury.</p>

The facts of the case are stated in the opinion of the court. STATEMENT. The appellee sued the appellant in Marion County Circuit Court, upon the following’acceptance Ocala, Fla., March 24, 1884. S. F. Marshall: Please pay to the order of Joseph Bumby two hundred and forty-five dollars for material furnished on Mr. Martin’s two houses, to be paid as soon as houses are completed, and charge to my aocount. R. C. Humeston. Endorsed. Accepted March 25, 1884. S. F. Marshall.

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

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

<p>1. A witness may, without being an expert, testify from liis knowledge as to the length, depth and directions of wounds.</p> <p>2. Any weapon is a deadly weapon which is likely to produce death, but a weapon capable of producing death is not necessarily a. weapon likely to produce death.</p> <p>3. The omission of the Clerk oí' the Circuit Court to put the usual file mark on an indictment which has been pleaded to, and of which, the record shows duo presentation by a grand jury in open court, is not a ground for arrest of judgment.</p> <p>4. The indictment charges that the defendant “in and upon one George-H. Hughes, with a certain deadly weapon, to-wit : an open knife,, which he, the said Edward F. Pittman, was then and there armed, feloneously, wilfully and of his malice aforethought, did make an assault, and the said George H. Hughes, in and upon the right side of the neck of him, the said George H. Hughes, then and there, wiih the knife, aforesaid, and by cutting, stabbing and wounding feloneously, wilfully and of his malice aforethought to kill and murder Held, That the averments of the indictment are sufficient to show that the assault was made by the defendant upon Hughes.</p> <p>5. A man indicted for assault with intent to murder may, under such. charge, be convicted of an aggravated assault.</p>

<p>Appeal from the Circuit Court for Orange County.</p> <p>Motion to dismiss appeal.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>1. A preliminary injunction should not be granted on a bill sworn to on information, and belief and unaccompanied by affidavit of the facts from the person from whom the information and belief were derived ; and an admission by defendant in his answer or affidavit of a material fact alleged in the bill does not cure the defect when there are other material facts unadmitted and unverified.</p> <p>2. The dedication of a public park on the water front of a bay does not carry the park into the bay, except to the extent of accretions thereto. The submerge 1 lands of the bay not disposed of by the State are her property, and aie not subject to disposition by the owner of the land adjoining the bay.</p> <p>3. “Florida Promenade,” a public park dedicated to the city of Apalachicola more than fifty years ago, if it extended to the bay went no further, the parties who made the dedication having no such light of property in the water front as authorized them to create an easement therein. Florida was at the time a Territory and that front was vested in the United States, but on the ad. mission of Florida as a State it became vested in her.</p> <p>4. The question of title to the submerged binds of the bay of Apalachicola is not affected by the fact 'hat the act of the Territory of Florida incorporating the city of Apalachicola g.ive limits to the city which included the water space in front of the Promenade. That only fixed the limits of municipal jurisdiction, without reference to ownership of property.</p> <p>5. The act of 1856 in favor of riparian owners, entitled “ an act to benefit commerce,” held not to apply in the case of a public park, as it did not fall within the contemplation of the Legislature or within the intention of the act,</p> <p>6. R is the owner of water lots in the City of Apalachicola on one of which he has an oyster canning factory. These lots do not adjoin the Promenade as laid out on the land, but he alleges that they adjoin the Promenade as it is extended into the bay, and that the city has let a portion of this to a company for private use, which is a diversion of the Promenade from its proper purposes, that causes injury to the value of his lots : Held, That the position of the lots towards the Promenade, as they do not touch it on the land, and it also appearing-that there is a street dedicated between his lots and the water space he erroneously alleges to be a part of the Promenade, is not such as to entitle him to maintain a bill to enjoin the diversion on the ground of injury to liis property.</p> <p>7. Where, in a case like this, the injunction sought is for a doubtful injury, or for speculative violation of complainant’s rights, the relief is generally withheld.</p> <p>■8. If the object of the bill is to preserve the public easement from invasion, to authorize a private person to proceed for that purpose, on the ground of injury to his adjoining property, it must be an available easement.</p>

STATEMENT. On the eighth day of June of the present year the plaintiff in error presented to Judge Broome, of the Seventh Circuit, a petition for a writ of habeas corpus, representing himself to be detained and imprisoned in the jail of Volusia county by W. K. Turner, the sheriff, without bail; that there is a pretended charge against him for shooting and killing one J. W. Douglass, on the fifth day of the same month ; that the shooting was done in a necessary defence of…

<p>1. In a prosecution for a violation of the Local Option Statute, entitled “An act to provide for the proper enforcement of the provisions of Article XIX of the Constitution of 1885, Chapter 3700, Laws of Florida,” approved June 2, 1887, it was necessary for the indictment to allege that the election to decide whether the sale of liquors, wines or beer should be prohibited in Franklin county, was held in pursuance to the provisions of said statute, or to state facts and circumstances sufficient to show that said election was held in pursuance to the provisions of the statute, and the indictment failing to show either, it is fatally defective.</p> <p>2. The indictment alleges that the election in Franklin County “was held in the manner prescribed by law,” which means that the election was held and conducted under the general election laws of the State, as required by the provisions of the Local Option Statute, but this allegation does not show, nor does it tend to show, that said eleclion was held pursuant to the provisions of the Local Option Statute.</p> <p>3. All indictments upon statutes must state the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it, and a conclusion “whereby, by force and effect of the statute in such case made and provided, he, the said John Cook, is deemed to have committed a misdemeanor, against the form of the statute in such case made and provided,” will not aid a defect in this respect.</p>

<p>1. The defendant filed a plea in abatement setting up that at a former trial of the cause (in which the jury failed to agree upon a verdict) the defendant had been in jeopardy, in that at the former trial of the cause, and after the jurors were tendered and accepted, but before being sworn in chief, and before the defendant’s peremptory challenges were exhausted, he challenged one W., one of the jurors tendered and accepted; that the court refused to allow the challenge, and that the juror challenged sat on the jury, whereby a mistrial was had, instead of a verdict of not guilty, except for the presence of said W., on the-jury: Held, That the court erred in refusing to allow the challenge to the juror, as the defendant had the right to peremptorily challenge the juror at any time before he was sworn in chief, and that if the jury had convicted the defendant at the former trial such error would have been cause for reversal, but that such former trial, under the circumstances, was no bar to a subsequent trial of the cause ; and that there was no error in the court treating such plea as a nullity.</p> <p>2. The discharge of a jury, in case of manifest necessity, such as-sudden sickness of a juror, the illness of the prisoner, or other urgent cause, will not exempt the prisoner from again being tried for the same offense.</p> <p>3. Jurors, when examined as to their qualifications, should be sworn on their voir dire, but when a person interested objects to a juror being excused he should make his objection before the juror is excused, and it is too late to object after the juror is excused.</p> <p>4. A man is not disqualified, nor exempt from jury duty by reason of being Assessor of Taxes for a city or town, but it is not error for a court in the exercise pi a sound discretion, to excuse a man from jury duty, when the interests of the public require the ex-eroise of such discretion.</p> <p>5. A venireman was asked upon his voir dire if he was under prosecution for any crime ; he answered that he believed he was, and was thereupon excused. This .was not error.</p> <p>6. A venireman was asked upon his voir dire if he had formed or expressed any opinion as to the guilt or innocence of the accused : he answered that he had not. The defendant then proposed to show, by witnesses, that the venireman had expressed an opinion as to his, defendant’s guilt. The court refused to allow witnesses introduced for that purpose, whereupon the defendant challenged the juror peremptorily. The State Attorney after-wards, and before the defendant had exhausted his peremptory challenges, withdrew his tender of said juror, and challenged him peremptorily. Held, That the court erred in refusing to allow witnesses introduced to show the bias’ of the juror, but that as the mi.-take was corrected, the defendant was not injured by the ruling of the court.</p> <p>7. In tlie trial of a cause for rape, where the prosecutrix is of tender years, and is very ignorant, it is not error for the court to permit such leading questions propounded to the prosecutrix, as hr his opinion may be necessary.</p> <p>8. In a prosecution for rape, the fact of the woman having made complaint soon after the commission of the offense, and that she named the person who committed the offense, is evidence to go to the jury; but her detailed statement of the circumstances under which she was outraged cannot be given in evidence on the trial of the cause by the party to whom she made the statement. Such evidence is hearsay and it is calculated to influence and mislead the jury.</p> <p>9. Where a stenographer stated that he did not know that he had taken down the exact words of a witness, but thought he had got down substantially what the witness stated, the court refused to allow the notes of the stenographer to be read as evidence, but permitted him to refresh his memory by the notes and to testify therefrom : Held, Not to be error.</p> <p>10. A charge : “To constitute rape, it is not necessary to prove emission, but it will be sufficient if it be provento your satisfaction that there was the slightest penetration by the prisoner’s sexual organ of the sexual organ of R. D., the prosecutrix.” “If the jury do not believe from the evidence that the prisoner' did ravish anc carnally know R. D., the prosecutrix, by force and against her will, then you must acquit him Held, To be oorreot,</p> <p>11. All objections to the summoning, empanneling and organization of grand juries must be taken by motion or plea in abatement before pleading to the indictment. Suoh objection comes too late when first made in motion for new trial.</p>

<p>An officer who seeks to justify the taking of property under an attachment, must show that the writ was actually returned on the Buie Day to which it was made returnable, or show a legal excuse why the writ was not returned in the time required by law. But if he fails to make his return in the time required by law, and fails to show a legal excuse for such failure, he cannot justify under it.</p>

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

<p>Where J. & B. and H. agreed to enter into and carry on a certain mercantile business under such circumstances as to show that the several parties to the agreement placed their money, effects, labor and skill, or some or all of them, in such business, with the understanding that there should be a communion of the profits thereof between them, is sufficient to constitute, or tend to constitute, the parties to said agreement partners in said business.</p>

<p>Under the statute all offenses not punishable with death must be prosecuted within two'years next aftér the same' shall'have been committed ; and under this statute the indictment,'for an offense not punishable with death, m'ust charge that the offence was committed on some day within two yeai s next before the finding of the indictment; but when the indictment charges an offense to have been committed oh a particular day, the’ day is entirely immaterial, and tile offense may be proved to have been committed on any day not so remote that the statute of limitations would bar the prosecution.</p>

<p>Appeal from the Circuit Court for Hernando county.</p> <p>The facts of the case are stated iu the opinion of the court.</p> <p>Judge John E. White, of the Third Judicial Circuit, sat in the place of Mr. Justice Mitchell, disqualified.</p>

statement. On the fourth day of August, A. D. 1888, the Clerk of the Circuit Court of Leon county issued an execution addressed to all and singular the sheriffs of the State, commanding them that of the goods, &c., of Robert S. Williams they cause to be made “ the sum of two hundred dollars, which is the amount of a fine imposed upon one Lot Bryant, in a certain criminal proceeding had ” in said court, “ for the payment of which within ninety days from the 14th day of…

The facts of the case are stated in the opinion of the court. Judge John F. White, of the Third Judicial Circuit, sat in the place of Mr. Justice Mitchell, disqualified.

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

<p>1. Under the mechamos’ lien law of 1885, providing that the liens “shall be enforced by attachment in manner provided by law,” the reference is to the general attachment law of the State, and not to attachments authorized in special cases.</p> <p>2. In the affidavit for the attachment under this act of 1885 it is not required that any of the grounds of attachment in the general law shall be set forth, but only that the facts which constitute the lien should appear as ground therefor, and that otherwise it should conform to that law.</p> <p>3. The remedy provided relates to the “ manner ” of obtaining an attachment — that is, by appropriate affidavit and bond.</p> <p>4. An attachment bond is not insufficient in respect to the require nrent that it shall be “in double the debt or sum demanded,” because the amount demanded does not appear in the bond, if it is in fact in double that amount, and so shown by the affidavit.</p>

<p>1. Official registers kept by public officers and in which they enter their official transactions as a convenient and appropriate mode of properly discharging the duties of their offices, are admissible in evidence, although there is no statute expressly authorizing or requiring such registers to be kept.</p> <p>2. Where an official register is admissible in evidence, certified copies of entries therein are also admissible on account of the inconvenience of removing the originals.</p> <p>3. It was the duty of the Register of State Lands, independent of any statute, to keep in his office a register of the sales and conveyances of land; and a certified transcript from the same of entries showing when and to whom land was sold, and when and to whom it was conveyed, is admissible as secondary evidence of the execution of a lost conveyance.</p> <p>4. A certified copy of an agreement on file in the State Land Office ac_ kn owledging a cash payment on certain lands, and agreeing upon the part of the Register to convey the land to the purchaser or his assignee on payment of the credit installments, and purporting to have been assigned by the original purchaser, and credited with the payment of the deferred installments is admissible with a transcript of the entries in an official record kept by the Register of the original sale and the conveyance to the assignee, as secondary evidence of the execution of the lost conveyance.</p> <p>5. Under the twenty-first section of Article XVI of the Constitution a certified copy of the record of any deed or mortgage may be admitted as prima facie evidence of the d.eed or mortgage and of its due execution, provided it be made to appear that the original is not within the custody or control of the party offering such copy; Held, 1st, The proviso is a limitation upon the preceding part of the sentence; and the theory of the entire sentence, including the proviso, is that an original deed or mortgage is the best evidence and must be put in evidence if it be in the custody or control of the party offering the copy, and that he cannot use the copy as evidence until it has been male to'appear affirmatively that the original is not in his custody or control; 2d, The proviso applies as well to cases in which the party offering the copy is not a grantee in the deed or mortgage as to those in which he is.</p> <p>6. Whether or not it has been made to appear that an original deed is in the oustody or control of a person offering a certified copy as evidence, is a question for the court to decide.</p> <p>7. It is not error to refuse to admit a certified copy of the record of a deed in evidence where a defendant in whose behalf it is offered is a non-resident, and his testimony as to the custody or control of the original-is not offered, and the testimony introduced is : that one of the witnesses, an agent of defendant, wrote to one of the grantees in the deed but had not received it and did not know who had possession of it; and another witness, the attorney of defendant, had neve ■ had the custody or,control of it, nor been able to obtain it, and did not know where it was, and that defendant bad written that he did not have it, and that never having had an opportunity to examine defendant’s papers, he could not state of his own knowledge what was in defendant’s possession ; and another witness, one of the grantees, deposed that he had turned it over to another of the gi antees, a resident of another State, without saying when he did so, yet stating that in so far as he knew defendants might have it.</p> <p>8. Proof of a deed of conveyance of land from the Trustees of the Internal Improvement Fund is prima faaie evidence of title in the grantee.</p>

<p>1. In a proceeding on quo warranto against one lidding a public elective office an answer which shows that the defendant received a majority of the votes cast at the election is good on demurrer as against the relator’s claim to the office, and also against the-State in so far as its right to judgment depends on the relator’s election.</p> <p>2. Where the pleadings in quo wm'ranto fail to show that either the relator or the defendant is entitled as against the State to hold an elective county office under an election held, to fill it for the term they claim, and the answer shows that the defendant was the legal occupant of the office at the time of the election, and it does not appear upon the pleadings that the Governor has, since the commencement of the term for which the election was held, made an appointment to fill the vacancy in such term, the answer will be held good on demurrer as against both the State and the relator, as under the Constitution the person holding the office at such election continues in office until the qualification of his successor.</p> <p>S. The limitation of sixty days prescribed by section 7 of Article YIII of the Constitution for county officers to qualify and give bond,, was not intended to cut off a person who may have been lawlully elected, yet through the mistake or other illegal action of inspectors or a canvassing board, has been put to legal remedies naturally extending beyond that period, for the assertion of his right to office.</p> <p>4. Mandamus is the proper remedy in favor of a person claiming an office for which he has qualified and been commissioned, to compel one holding over from a previous term to surrender the books and other property of the office, but it settles no question as to the ultimate right to the office for the term for which the commission has been issued.</p>

The facts of the case are stated in the opinion of the court. STATEMENT OF CASE. Appellant, plaintiff below, sued the appellee, alleging in his declaration that lie was, on February 1st, 1887, proprietor and publisher of a certain newspaper in said county and that one John Eoche was Collector of Eevenue of said county.

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

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

STATEMENT. Appellant sued appellees, James E. and Ida Latham, in ■ejectment to recover a piece of land containing thirty acres, lying in Hernando county, in tbe northeast quarter of the southwest quarter of section 15, T. 24 S., R. 21 E., described as follows: beginning at the northwest corner of the northeast quarter of the southwest quarter of the section and running south three hundred and thirty yards, thence east four hundred and forty yards, thence north three hundred…

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

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

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

<p>A Justice of the Peace has no authority to try a person charged with felony, and such trial by a Jrtstice of the Peace is no bar to subsequent trial of the same offence by the Circuit Court.</p>

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

STATEMENT. This case comes bore upon appeal and cross-appeal from tbe Circuit Court of Duval county.

<p>1. Where a railroad company fails to comply with the provisions of the act of Congress granting the right of way to railroads through the public lands of the Uuited States, the company has no right to run its road through the land of a homesteader who had complied with the terms of the homestead law, although the homesteader had not at the time received his patent from the govern - ment, for the homesteader’s claim is, under such circumstances, superior to, and not subordinate to that of the company, and if the com any runs its road through Ms land i-' becomes a trespasser and is liable to ilie homesteader in an action for damages-</p> <p>2. A railroad company that has not complied with the terms of the act of Congress granting to railroad companies the right of way through the public lands, is not in a position to assail the title of a homesteader found in possesion of land through which the company desires to run its road.</p> <p>3. An action for trespass upon real property must be commenced within three years, otherwise it is barred by the statute of limitation, and a charge, that in a continuing trespass the statute does not begin to run at the time the cause of action accrued, but that the action might be brought at any time during the continuance of the trespass, and that the plaintiff could recover damages for the whole time whether the suit was commenced in the time prescribed by the statute or not, is erroneous.</p> <p>4. Where there is a continuing trespass, the party injured is entitled to recover any damages he may sustain in consequence of such trespass, at any time within three years before the commencement of suit, and he can bring successive suits against the defendant as long as the trespass is continued.</p>

<p>1, A bill of review for error of law apparent upon the record will lie, although the decree sought to be reviewed is a final decree, consequent upon a decree pro confesso for failure of defendant to plead.</p> <p>3. Where the bill does not justify the final decree following the decree pro confesso, a bill of review for error apparent upon the record as a proper remedy for relief in the court rendering such decree, and an appeal the remedy through the appellate court.</p> <p>3. A married woman is by the common law incapable of making a contract that will bind her personally either in law or equity, and for this reason there cannot, in the absence of legislation changing the common law, be a judgment or decree'against her personally for the recovery of money as distinguished from a decree charging her sepárate equitably estate or other property with the payment of money. No exception to this rule is created by the existence of a marriage contract between husband and wife giving her tire right to control and manage her separate estate and property llie same as if she had remained unmarried.</p> <p>4. A married woman is personally liable for her civil torts, including such frauds as do not grow out of or are not directly connected with or a part of a contract which she has undertaken to make.</p> <p>5. Wherever coverture avoids a contract which a wife has attempted to make, it likewise bars a personal recovery against the wife on the ground of the fraud co-nected therewith, and the bar cannot be overcome by suing her in an action ex delicto.</p> <p>O. It i? error to decree a recovery of money of or against a married woman personally, in a suit in equity instituted to set aside a contract for tliesale of land on tlie ground of fraud and to recover the amount of a cash payment made thereon by the complainant.</p> <p>7. The mai'ital relation does not of itself disqualify a husband from acting as the agent of his wife with reference to her separate estate.</p> <p>8. The person in whom the legal title to property is vested in truat for a married woman is a necessary part to a bill seeking to charge the property with the payment of money paid to her.</p>

The facts of the case are stated in the opinion of the •court. STATEMENT OE THE CASE. G. I. Austin, the appellee, who was the complainant in -the court below, filed his bill against John F. Lay, the appellant, to foreclose a mortgage.

The facts of the case are stated in the opinion of the court. BRIER ROR APPELLANTS. STATEMENT. Complainants and Appellee Burch claim title to certain tracts of land, aggregating about twenty-four acres, in the suburbs of Jacksonville, which title they setup was, while vested in Mrs. Mary M. Christy, then, ever since and now the wife of William II. Christy, conveyed by Mr. and Mrs. Christy to one Edward Iioustoun by a certain deed which was lost before it was recorded.

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

STATEMENT. The original bill, appearing in the transcript, was filed May 2d, 1882, the said Deans and the administrator de l)onisn&n of the estate of Jacob Foreman, and Jonathan C. Greeley, and C. F. Warriuer, sureties on his official bond as administrator, and said Greeley and 13.