Volume 29 — Florida Reports

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

STATEMENT. The appellees, Henry D. Sayre, Phillip Halle and his wife, Minnie Halle, on the 21st day of May, A. D., 1887, filed in the circuit court for Duval county, Florida, their amended bill against Loud wick War-rock, his wife Adalina D. Warrock and Manuel C. Jordan, to foreclose a mortgage. The bill was filed on behalf of the wife, Minnie Halle, and it alleges substantially that: 1.

<p>Writ of Error to the Circuit Court for Volusia county.</p> <p>STATEMENT.</p> <p>This is a proceeding by information in the nature of a quo warranto instituted in behalf of the State of Florida by the Attorney-General, in the Seventh Judicial Circuit, for Volusia county. The information states that T. B. Biddulph,” S. S. Bennett, S. A. Donald, Andrew Harold, William James and George H. Count — the said Biddulph as mayor, and the said Bennett, Donald, Harold, James and Count as aldermen, and others, have usurped, and still do usurp, to be a corporation under the corporate name of the town of Enterprise, in the county of Volusia and State of Florida, as follows : That on the first day of February, A. D, 1877, the town of Enterprise, with certain metes and bounds, (which are set out in the information,) was incorporated under the name of the town of Enterprise, as will appear by a certified copy of the record of the transcript of t-lie proceedings of said incorporation filed with the clerk of the circuit court of Yolusia county, and by him duly entered upon the public records of said county, and which copy of the record is attached as exhibit “A” to the information.</p> <p>Further, that on the 24th day of March, A. D. 1884, there having been no surrender of the aforesaid corporate franchise, and no dissolution of said corporation, the town of Enterprise was again incorporated with the following metes and bounds, to-wit: Sections one and two in township nineteen, and sections thirty-five and thirty-six in township eighteen, all in range thirty", south and east, section six in township eighteen in range thirty-one, south and east, Yolusia county", Florida; that a fair and complete transcript of the proceedings was prepared by the clerk of said town, embodying the notice by which the meeting was convened to form said corporation, the number of qualified electors present, the seal, territorial limits of said incorporation, and the names of the officers-elect, to which the mayor and aldermen attached their signatures, attested by the clerk with said seal, and was filed with the clerk of the circuit court.for said county^ and by him marked filed, but before being recorded was lost, destroyed or abstracted from said office by some one unknown to relator, and cannot now be found. That under each of said incorporations elections were held and officers elected, duly sworn and qualified, and entered upon and discharged the duties of their respective offices; that the said, two incorporations, in succession, owing to factional disturbances and petty grievances were, without any warrant of authority or process of law, ignored, and on the 14th day of May, A. D. 1885, a third incorporation of the town of Enterprise was formed and organized, or attempted to be, the last and third one further contracting and changing the corporate limits, and leaving without the boundaries of said incorporation citizens and qualified voters who, under the preceding incorporations, lived within the limits of said town. That notwithstanding such change and contraction of the limits as aforesaid, no action was taken to that end as jjrovided by law, but the proceeding had and taken in the premises were as though a new or original incorporation was being formed, as will appear by a certified copy of the transcript of the proceedings thereof attached as exhibit “B” to the information. The description of the territory of the third incorporation as embodied in the notice for the meeting to incorporate is as follows: Commencing on Lake Monroe at west line of lot three, section one, township nineteen, of range thirty, east, and running north on said line to township line dividing townships eighteen and nineteen, thence east on said line to the center of half mile post in section five, township nineteen, south of range thirty-one, east, thence south to Lake Monroe, and thence westerly on the margin of Lake Monroe to the place of beginning.</p> <p>That under the last and third incorporation, or pretended incorporation, the said T. B. Biddulph on the -day of May, A. D. 1887, was elected, or pretended to be elected, mayor of said incorporation, or pretended incorporation, of the town of Enterprise, and is now acting as such mayor, and S. S. Bennett, S. A. Donald, Andrew Harold, William James and George H. Count, on the-day of May, A. D. 1887, were elected, or pretended to be elected, aldermen of said town, and are now acting as such aldermen, and they, said Biddulph, Bennett, Donald, Harold, James and Count, acting as such mayor and aldermen, respectively, and others residing in said town, do and perform and exercise all the liberties and privileges and franchises of incorporated towns usurping to be an incorporation, to the great damage, prejudice and wrong of the said State of Florida, wherefore due process of law' is prayed against the town of Enterprise and said mayor and aldermen, and that they be required to answer by what warrant they claim to have, use and enjoy the liberties, franchises and privileges aforesaid. Process of subpoena was awarded by the court against T. B. Biddulph, as mayor of the town of Enterprise, and S. S. Bennett, S. A. Donald, Andrew Harold, William James and George H. Count, as the town council of the town of Enterprise, to answer said information.</p> <p>Respondents demurred to the said information on the following grounds:</p> <p>1st. “That said information does not show that either of said incorporations were legally made or formed.”</p> <p>2d. “ That said information does show that said two incorporations were illegal and never had any legal existence.”</p> <p>3d. “ That the existence of an illegal and void incorporation does not prevent or preclude the citizens making and forming a legal incorporation under and by virtue of the laws of the State of Florida.”</p> <p>4th. “ That the said information does not show that the incorporation of May --, 1885, was not legally formed in every particular, and that the general incorporation law had been complied with in all particulars and requirements.”</p> <p>5th. ‘ ‘ That the said information does not show that the corporation of May-, 1885, was not the first and only legal incorporation of the territory therein described.”</p> <p>6th. “ That the information is in other respects insufficient, irregular and informal.”</p> <p>This demurrer, after argument, was overruled, and respondents excepted to the ruling of the court.</p> <p>T. B. Biddulph filed a disclaimer to the effect that he had long since resigned and ceased to be mayor of said municipal corporation, or to act as such.</p> <p>The respondents, Bennett, Harold, Donald, Count and James, filed an answer, which, in substance, is as follows: They say it is true that they are the board of aldermen of the corporation of Enterprise, but it is not trae as stated in the information that the name of said corporation is the town of Enterprise. They admithat they exercise the duties of aldermen, and claim that they were legally elected and qualified according to the ordinances of said corporation and the laws of Florida, and as such aldermen perform the duties thereof. They say they are informed and believe citizens, claiming to be twenty five in number, did make an attempt to incorporate certain territory described in the information, on the 21st day of February, A. D. 1877, and they are informed that the persons mentioned in the information as having been elected to office, entered upon and discharged the duties appertaining to to each office for a short time, but ceased to act as such about the middle of the year 1877, and have not acted or claimed to be such officers since that time; that corporate government within or over said territory ceased to exist, and was not exercised until the 24th day of March, A. D. 1884, when a number of persons met and attempted to incorporate the territory described in the information, and there were officers elected as alleged in said information, who entered upon the duties of their offices, but they served only a short time, and then refused and failed to act, claiming that the corporation thus formed was not legally constituted and created; that there were no officers exercising or claiming to exercise the duties of such offices within the tertitory described in said information for about a year, and said territory remained without any corporate government for about a year. Respondents say it is true that the citizens of thé territory described in the information, on the 14th day of May, A. I)., 1885, did enter into and form a corporation, and proceeded thereunder to elect officers to fill the offices provided in the charter of incorporation, and respondents aver that they are their successors in office, and that officers have continually since the creation of the corporation of 1885, up to the time of filing the answer, been elected.</p> <p>That it is not true as alleged in the information, that S. S. Bennett, Andrew Harold, S. A. Donald, George II. Count and William James were elected in May, 1887. It is true that S. A. Donald, George II. Count and William James were elected and qualified as alderman in May, 1887, the other two aldermen held over according to law.</p> <p>Respondents deny that they or any one to their knowledge ever for any cause whatever abstracted any papers from the clerk’s office of Volusia county.</p> <p>It is further stated in the answer that respondents respectfully contend that the two first named pretended incorporations were never legally incorporated according to and in conformity to the statute laws of the State of Florida, but were void and without legal existence from the beginning thereof. That they con'tend tlie incorporation of said territory made and ■formed the 14th day of May, 1885, was legally made, ■and that the 'citizens thereof are a legal government therefor.; that respondents are the officers elected under said last incorporation, and they do not usurp any office, or pretend to hold under a void incorporation. Respondents ask leave to refer to the exhibits attached to the information as often as may he found .necessary.</p> <p>' Upon the filing of this answer plaintiff moved the '■court for a judgment of dissolution against the corporvations, or pretended, or defacto corporations, of the town, of Enterprise, or Enterprise, and this motion was granted. A formal judgment of the court on the same day the motion was granted was entered adjudg-, ing that the corporations of the town of Enterprise formed, or attempted to be formed, on the first day of February, A. D. 1877, and the corporation of said town formed, or attempted to be formed, on the 24th day of March, A. D., 1884, and the corporation of Enterprise formed, or attempted to be formed on the 14th day of May, A. D., 1885, be each and every of them dissolved and pronounced void. Also that T. B. Biddulph, S. S. Bennett, S. A. Donald, Andrew Harold, William James and George H. Count cease to act in the capacity of mayor, and alderman, respectively pf said town, and that they be ousted therefrom. Respondents bring this decision of the circuit court here -for review by writ of error. They assign for error Jiere, the granting of the writ of quo marrante>, the entertaining jurisdiction by the circuit court of the-case made by the pleadings, the overruling of respondents’ demurrer to the information, and in awai’ding the judgment of ouster.</p> <p>The other facts in the case are stated in the opinion of the court.</p>

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

<p>1. The advancement for decision of causes in which the State is not a material party in interest, is according to the p>ractice of the court, controlled by the principle announced in the exception in Rule 30 of this court. It must be one in which a county, municipality or other recognized governmental .agency is a real party in interest, and not a mere nominal party, and an immediate or early decision of the cause must be necessary either to the enforcement or protection of the public right asserted therein, or to the avoidance of embarrassment in the - operation of such governmental agency; or it must be a case which, though no governmental agency is a real party in interest to it, yet so involves or affects public interests as that its early decision is necessary to avoid embarrassment to the governmental agency whose interest is involved.</p> <p>2. The mere fact that a suit involves a public question does not give a municipality which is a real party in interest thereto the right to demand its advancement; nor do such fact, and the further facts that the same questions, which have been decided favorably to the city, are involved in several pending suits, or that various other suits may be imminent because of not advancing the particular one, nor that the same questions may arise as to a hundred distress warrants held by the city attorney to be enforced.</p> <p>3. Tlie fact that the cause is one involving municipal taxes, and to which a municipality and a taxpayer are the parties, is no ground for advancing a cause for decision, on the application of the taxpayer.</p>

<p>Appeal from the Circuit Court for Marion county.</p> <p>STATEMENT.</p> <p>The action is ejectment for the recovery of an undivided half of lot 2, block 35, old survey of Ocala, and mesne profits, and was commenced in June, 1887, by the plaintiff, then a minor, through her next friend, she being the only surviving child of Adam Gf. Summer, who died in the spring or summer of 1866. To further sustain her action she put in evidence a certified copy of the record of a deed in the office of the Clerk of the Circuit Court of Marion county, such deed bearing date September 1,1858, and purporting to have been made by Martha Baker, Robert Bullock and Amanda Bullock, his wife, and to convey to II. L. Hart in fee the lot in question. She also offered in evidence a certified copy of the record in Marion county clerk’s office of a deed bearing date July 9, 1863, and purporting to have been executed in Thomas county, State of Georgia, to be a conveyance in fee of the same property by Hart and wife to Adam G. Summer and Henry Smith, but its admission in evidence having-been objected to by defendant on the ground, that the ■deed “had not been duly proven and acknowledged ..and recorded as required by law,” the objection was ■sustained, the plaintiff excepting to the ruling and having in support of the admissibility of the deed, read in evidence, Sections 2690, 2705, 2706, 2707, of the Code of the State of Georgia, second edition of date 1873, revised, corrected and annotated by David Irwin, •Geo. N. Lester and W. B. Hill.</p> <p>Plaintiff then offered as a witness Robert Bullock, who testified that he was in possession of the lot in 1854, claiming title, had the lot under fence, built a livery stable and operated and ran it, dug a well on the southwest corner of the lot, and so remained in possession. until sometime in 1858 when he sold it to H. L. Hart and placed him in possession thereof; that Hart continued in the same business on said lot, running a livery stable for a number of years thereafter. The following questions were asked the witness by plaintiff, and each of them was objected to and the objection sustained, the plaintiff excepting to the rulings :</p> <p>1. How long did H. L. Hart remain in actual possession of said lot after you put him in possession thereof, and state whether or not he was in possession claiming title exclusive of any other right ?</p> <p>2. Were you in possession of said lot at that time claiming title thereto exclusive of any other right ?</p> <p>3. State the character of the possession of H. L. Hart ? This question being preceded by an offer to prove by the witness the character of Hart’s possession, and being asked for such purpose.</p> <p>4. Who was in possession of said lot immediately ■after H. L. Hart ? This question being preceded by an •offer to prove that Hart placed Summer in possession when he sold to him, and being asked for that purpose.</p> <p>The plaintiff also introduced as a witness W. P. Trantham, who testified that he was acquainted with the premises in controversy and knew Adam Gr. Summer, and then plaintiff asked him the following questions, each of which was ruled out on objection of defendant, and the ruling excepted to by plaintiff:</p> <p>1. State how long Adam Gr. Summer was in possession of said lot, and what was the character of the possession ?</p> <p>2. Was Adam Gr. Summer, prior to his death in 1866, in actual possession of said lot ?</p> <p>The plaintiff here offered to prove by the witness, Robert Bullock, that the possession of Bullock, Hart and Summer followed in immediate succession, and was turned over from one to the other and was continuous and adverse from 1854‘to Summer’s death in 1866, each claiming title from the other in the order of succession, and for this purpose asked him the following question: State whether or not the possession of said lot by Robert Bullock, H. L. Hart and Adam G-. Summer from 1854 to 1866 immediately succeeded each other, and each claiming title from the other ? The question was excluded on objection by defendant, and plaintiff excepted.</p> <p>The plaintiff having rested, the defendant put in evidence a deed of conveyance in fee of the above property, dated May 1st, 1886, from William E. Schoeflin and wife to H. E. Miller and Edwin Spencer.</p> <p>Schoeflin, a witness for defendant, testified that he took possession of the lot in 1878 ; that he built a new fence around it, and built a house on it and lived in it with his family until he sold it to Miller and Spencer; that it is the same house Mr. Hicks now lives in. On cross-examination, he said that he built a new fence, and did not repair an old one ; took away some old pieces of boards and built a new fence ; the house he built is the same one Hicks now lives in, the same house that Wallace Dawkins put there, and witness put a new story on and fixed it up the same as building a new one. The house that Mr. Hicks lives in is on lot 26, west of this one, but I had ‘ ‘ all fenced up — both lots the house was partly in the street that runs between the two lots. At this time that street was not opened: “ I told you that the-house I built and lived in is the same one in which Mr. Hicks now lives, and had the whole thing under fence.”</p> <p>Defendant then introduced a deed from Miller and Spencer to the defendant bearing date December 7th, 1886, and purporting to convey to Mitchell and his heirs the lot in question.</p> <p>The defendant having rested, the plaintiff introduced one Wallace Dawkins, who testified, that he lives in Ocala, and has seen the lot every day for the last twelve years; that he took possession of the lot in 1877, and put a fence around it; that he took possession by mistake, intending to locate on another lot, and got on this one by mistake. (Witness locates the lot on a map of Ocala handed to him.) That when he found out his mistake he moved off ; that he built a house on the lot across the street from this one on the west; that he built it; that Schoeflin moved in the same house ; moved in the same day, witness thinks, that witness moved out of the house; that the fence witness put around it was the same one that Avas there Avhen Schoeflin Avent there. When Avitness Avent there no fence Avas around the lot, and no houses; that no house was ever built on the lot since witness knew it until after the big fire in 1884, when old man John Elzia put up his little stand in December, 1884. It is the same place he now uses.</p> <p>Mrs. Margaret Summer, mother of plaintiff, testified that her husband, Adam Gr. Summer, was seized and possessed of the lot.; that it has been vacant for a number of years ; not occupied until defendant took possession of it something over a year ago ; does notknoAv of plaintiff’s possession within seven years; that Mr. Summer was engaged in some business upon the lot, but she does not know what the business was.</p> <p>Plaintiff testified she had never had possession since her father’s death.</p> <p>The other facts are stated in the opinion.</p>

STATEMENT. 1. The facts shown, and allegations and prayer made, by the bill are as follows : On June 1st, 1870, the appellee’s co-defendant, Polydore Lean, entered the land in question, 160 acres, now in Lake county, but then in Sumter, as a homestead under the laws of the United States, in the Tallahassee Land Office, the entry being Number 4667 of the series of June, 1870.

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

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

<p>1. Where thirty days do not intervene between the entry of an appeal and the next succeeding term of the Supreme Court, only twenty days’ notice of the appeal is necessary; and to enable* the appellant to give the appellee this notice, the appeal may be-made returnable to a day in term subsequent to the first day of the term. The practice does not, however, contemplate that-the appellant may enter his appeal and use his own convenience as to the time of issuing and serving citation, nor that, an appeal shall be brought to a term prior to which there has: been no issue of citation.</p> <p>2. Delinquency on the part of the clerk in preparing an appeal transcript is not an excuse for the failure of an appellant, or his counsel, to observe ordinary diligence in obtaining an appeal citation and having it served.</p> <p>3. An appeal was entered on the second day of a month, and the next term of the appellate court began on the twelfth day of the month, and on the fifth day of the next succeeding month appellant filed the appeal transcript in the appellate court and moved for a citation returnable to the same term: Held, that the appeal was abandoned.</p>

. STATEMENT. The appellant instituted proceedings under the act of -February 12th, 1885, Chapter 3595, as amended by the act of June 8th, 1887, Chapter 3712, p. 31 acts of 1885, and p. 82, acts of 1887, authorizing railroad and canal companies to condemn lands of private individuals for their use.

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

<p>Minors — How Made Parties in Equity.</p> <p>1. Where minors are to be made parties defendant in a suit in equity, subpoena should be issued to such minors and regularly served upon them in the presence of their legal guardian, or in the presence of the person who has the present care and custody of them. Then a guardian ad litem for such miners should be appointed by an order of the court; and such guardian ad litem should also be served with subpoena in the cause.</p> <p>2. Where a stranger to the cause interposes any pleading in an equity suit, for and on behalf of minors interested in t-he issues thereof, as their guardian ad litem, and the record fails to show that such party has ever been appointed or authorized by the court to act in said cause as such guardian ad litem, all the pleadings so interposed by such stranger are nugatory and do-not bind such minors ; and all orders and proceedings in said cause predicated upon such pleading -will be set aside as void.</p>

<p>Motion to docket and dismiss case. •</p> <p>The facts in the case are stated in the opinion of the court.</p>

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

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

<p>An appeal will not be dismissed, 'on motion of appellee, for not filing the appeal transcript on the first day of the term to which the appeal is returnable, where the transcript had been filed before such motion is made, though subsequently to such day.</p>

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

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

Writ of Error to the Circuit Court for Duval county. STATEMENT. The plaintiff in error was indicted at the Pall term, A. D. 1891, of Duval Circuit Court, for the murder of March Scroggins.

Writ of error to the Circuit Court for Duval county. The facts in the case are stated in the opinion of the court-. Motion to vacate judgment and for rehearing.

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

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

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

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

<p>The Supreme Court, acting upon a true transcript of the record of an inferior court, and in the regular course of appellate procedure, reversed the judgment of the inferior court on the ground that the record of the latter court did not show that the petit jury was sworn, or that the prisoner was personally present when sentence was pronounced upon him for a felony. After the remittitur of the Supreme Court was issued and filed in the inferior court, the latter court amended its record nunc pro tunc, so as to make it show that the jury had been sworn and the prisoner was personally present when sentenced: Held, On motion made by the State at the same term of the Supreme Court, that it lost jurisdiction of the writ of error, and could not vacate the entry of its judgment and restore the case to its docket.</p>

<p>1. The oath or affidavits required by the act of March 11th, 1879 (sec. 41, p. 466, McClellan’s Digest), to satisfy the court that the testimony of a witness whose deposition it is desired to take under a commission is material and necessary to the defense of the accused, must present facts naturally and reasonably calculated to satisfy the judgment of the court that -such testimony is material and necessary to the defense. An affidavit of counsel stating that he is acquainted with the case of the defendant, and what is necessary for his defense, and verily believes that the testimony of a named witness, to whom interrogatories calling for his opinion as an expert and accompanying the motion for a commission are addressed, “ is necessary, material and important to the defendant,” is not sufficient,</p> <p>2. A plea of not guilty is a waiver of the right to plead in abatement in a criminal cause.</p> <p>3. If there can ever be a review by an appellate court of a ruling of a trial court refusing to permit the withdrawal of the general issue for the purpose of pleading in abatement of the indictment, it will not be done where the accused has waited twenty-one months after the finding of the indictment, and there has already been a trial on the merits, and the period barring a new indictment has elapsed.</p> <p>4. A charge to a jury cannot be made a part of the record except by a bill of exceptions, or by being signed, sealed and filed by the circuit judge, in accordance with the act of March 2d, 1887 (sec. 36, p. 338. McClellan’s Digest), and will not be reviewed by the appellate court when not made a part of the record.</p> <p>5. A verdict may be received and entered On Sunday, but it seems that judgment or sentence cannot be lawfully rendered on that day. The former proceeding is not ground for a new trial.</p> <p>. 6. The failure of the record to show that the judge asked á prisoner before pronouncing sentence upon him, if he had anything to say why the sentence of the law should not be passed upon him, is not ground for setting aside the judgment, where the conviction is not of a capital offense.</p>

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

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

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

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

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

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

<p>Injunction to Restrain Suit at Law.</p> <p>Where a defendant in a suit at law applies by bill in equity for relief against matters involved in such suit at law, and for an injunction to restrain the plaintiff from proceeding with such suit at law; and it appears that under his pleadings in the common law action he can therein obtain the same relief to which the allegations of his bill would entitle him, an injunction to restrain such suit at law is properly refused.</p>

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

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

Duval county. STATEMENT. The appellee, Calvin, sued the appellant, a railroad corporation, in the Duval Circuit Court, for personal injuries received by the alleged negligence of said corporation.

<p>APPLICATION OF PAYMENTS —PLEADINGS—EVIDENCE.</p> <p>1. A bank holds an aggregate indebtedness of $7,014 against D. as principal debtor made up of divers notes, upon some of which other parties were joint makers with the principal debtor, and upon others of which still other different third persons were accommodation endorsers and sureties. D., the principal debtor, makes an assignment to Y. for the benefit of his creditors generally, in which the bank’s entire claim is preferred. The assignee, Y., makes dividend payments to the bank upon its aggregated claim, without any directions as to whether such payments should be applied by the bank to any particular item or part of its claim, or not; Held, that in such case, whether the assignee gave any directions or not as to the application to be made by the bank of the payments made by him, the law applies the payments made by the assignee pro rata among and between all of the different unpaid obligations or evidences of indebtedness held by the creditor against such principal assigning debtor, without regard to any seniority as between such evidences of indebtedness in date or maturity; Held,further, that the creditor, in such case, had no right, with or without directions from the assignee as to the application of his payments, to apply them otherwise than pro rata as credits upon the different unpaid evidences of indebtedness held by such creditor against the assigning principal debtor ; Held further, that the payments made by the assignee, in such case, should be applied pro rata among all of the different unpaid evidences of indebtedness held by the creditor against the assigning principal debtor, notwithstanding the fact that for some of his evidences of indebtedness the creditor may hold other distinct and independent collateral securities pledged to him by the debtor prior to his assignment as security for such distinct items of his claim. The payments made by the assignee should be applied pro rata- to those items of the creditor’s claim for which he holds independent collateral securities, as well as to all the other different evidences of his claim.</p> <p>2. The general rule is, that a creditor, who holds several obligations or claims against his debtor, has the right to apply a payment made to him by the debtor to either of the obligations he holds, unless the debtor at the time of making the payment directs its application, which right the debtor has in every case. But this rule is confined to cases of voluntary payments by the debtor himself, and does not apply to payments made* in invitum, or to payments made by an assignee or trustee, acting under a deed of assignment by the debtor for the benefit of his creditors generally. In the latter cases the law makes the application of the payments pro rata to all the separate obligations of the debtor in the proportion that the aggregated claims of the creditor bears to the amount of the payment made; and this, too, whether the creditor for some parts of his claim holds other independent collateral securities or not.</p> <p>3. Where a debtor owes his creditor several different obligations, and for some of them pledges other independent collateral securities, and then fails in business and assigns all his effects in trust for the benefit of his creditors generally, the creditor has the right to apply collections made by him out of such collateral securities to those specific portions of his claim for the security of which such collaterals were pledged, to the exclusion of other obligations of the debtor held by him that did not enter into the pledge of such collaterals.</p> <p>4. Where an accommodation endorser issued upon his endorsement, and pleads payment, under such plea he has the right to get the benefit of, and to establish by proofs, any credits that the claim sued upon is legally entitled to, that may have been paid thereon by the principal debtor, or by an assignee acting under a deed of assignment made by the principal debtor for the benefit of his creditors generally ; and, under such plea, has the right to have payments made by such assignee to the suing creditor equitably pro rated among all of the different obligations held by such creditor against such principal debtor, as well to those upon which he is endorser as to all the others held by the creditor.</p>