Volume 32 — Florida Reports

<p>1. A cross-bill is one brought by a defendant in a suit against the complainant in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill, and is considered as an auxilliary suit or as a dependency upon the original bill, and can be sustained only on matter growing out of the original bill. Such cross-bill may set up new matter arising subsequently, but still it must constitute part of the same defense or relate to the same subject-matter in such a way as to be a defense to the original suit.</p> <p>Z. A supplemental bill is considered merely as an addition to the original bill, and while it is often permissible and proper to introduce matter that has occurred after the institution of the suit, and of such a nature as can not be properly the subject of an amendment, yet such new matter must not be such as to change the rights and interests of the parties before the court.</p> <p>3. The matter brought forward in the supplemental cross-bill in the case at bar, held to be no defense to the original bill filed against the city of Jacksonville, appellee here.</p>

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

<p>Writ of error to tlie 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 Volusia county.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>STATKMBNT.</p> <p>In 1805, on tile 9th of January, Enrique White, the Spanish political and military governor of St. Augustine, Florida, and its province for H. M., granted to Gfaspar Papy five and a half acres of land bounded by the south with the Bartola Suarez lands, by the east; with the “Zacatel,” by the north with the road that goes from the city to the new fair, and by the west with Juan Bourquat’s lands. The .shape of the tract, according to the accompanying plan of the survey is a quadrilateral, the eastern and western sides pf which are parallel, whereas the northern and southern sides verge a little towards each other from east to west, the western side being about five-sevenths the lentil of the eastern side, and about one-third the length of the northern. It is also spoken of in the title as five and a half acres of land on the New Fair Road; and in the original survey made by John Tra-vers, the words “towards the new ferry,” are used instead of “to the new fair.” On November 14th, 1835, Francis due and Joseph S. Sanchez, executors of Anna Pona Papy, the widow of Gaspar Papy, conveyed to William Eldridge a parcel of land containing ‘ ‘five and a half acres, more or less, as will appear by a survey of the same made by John Travers, * * bounded * * on the south by the land of Mary Cooper, on the east by marshes of Bridge Creek, on the north by the street which leads to Avice’s Ferry, and on the west and soiith by land of-Lewis,” which said land is situated in St. Augustine, Florida; and El-dridge conveyed it; by the same description, to Theodore Flotard, May 14th, 1836. On April 2d, 1838, Flotard and Smith Woodhull, trustee of William Woodhull and John W. Woolsey, conveyed to Peter Sken Smith the land, referring to the survey, and also describing it as “bounded on the north by a street leading to what was formerly known and called Avice’s Ferry; on the south by land lately the property of Mary Cooper or of .her children; on the east by the marshes of Bridge creek, sometimes called Maria Sanchez creek, and on the west, and partly on the south, by property lately sold by the * * said Theodore Flotard to said Smith, and formerly known as the Mitchell Grove, * * and is the same that was originally granted to Gaspar Papy, &c., &c.” On May 15th, 1838, Smith mortgaged the property to Smith Woodhull, as trustee for William Woodhull and John Woolsey, and on July 30th, 1846, Woodhull, trustee, assigned the mortgage and unpaid indebtedness secured thereby to Amelia Dumas; and on June 2oth, 1847, a decree of foreclosure and sale was rendered thereon in the Superior Court of East Florida, in favor of Amelia Dumas against said P. S. Smith, •Christopher Andrews, Thomas Cosby and Orloíf M. Dorman, in which decree the property is described the same as in the mortgage, the only variance between such description and that in the deed to Smith being the use of the words: “The marshes or Bridge creek,” for “the marshes of Bridge creek.” On September 6th, 1847, Joseph S. Sanchez, sheriff of St. Johns county, under a sale made pursuant to such decree, conveyed to Amelia Dumas, the land, describing it as in the stated mortgage. It should be stated in connection with the variance of description mentioned, that in the mortgage ancl subsequent instruments referred to the laDd is specially mentioned as being the same granted to Gaspar Papy, and afterwards sold by the executors of his widow to Eldridge, and by him to Flotard.</p> <p>Amelia Dumas died unmarried and without issue in the year 1861, leaving surviving her her father, Peter B. Dumas, as her heir, and he died in 1869 intestate, leaving his wife, Rose B. Dumas, and a son, Henry B. Dumas, and a daughter, Stella Dumas, the plaintiff, as his heirs. On October 24th, 1871, Henry Dumas conveyed all his interest in the estate of his father to said Rose B. and Stella Dumas, and in 1873, Rose B. Dumas died, having made her last will and testament by which she gave all her property, real and personal, t o the Rev. Augustine Yerot, the Roman Catholic Bishop of St. Augustine, and his successors in office, the said will having it would seem, been admitted to probate in St. Johns county in August of the year last stated. On July 13th, 1874, Bishop Yerot and plaintiff agreed, by writing under seal attested by two witnesses, to a division of the property of said Peter B. and Rose B. Dumas, by which agreement it was provided, inter alia, that the said “Stella Dumas will own and possess and retain in fee simple the tract of land called ‘the Grove,’ which is bounded north by Bridge street, east by Maria Sanchez creek, west by the Sebastian river, and south by what is known' as the Hernandez, now claimed by George Atwood, and Wheadman’ tracts of land.” This instrument was also executed by Henry B. Dumas as a quit-claim to the property described in it. On August 3rd, 1877, Bishop Moore, the successor of Bishop Yerot, executed to Stella Dumas a deed whereby he “remised, released and quit-claimed” to her the last described land, such deed purporting to be an execution of the preceding agreement.</p> <p>Henry B. Dumas, testifying in behalf of the plaintiff, stated that at the execution of the deed by Bishop Moore, the plaintiff was in possession of the land described in it. That since 1869 he had been her agent for the transaction of all her business, and had had charge of these lands and control of all her deeds and other papers. That Peter B. Dumas was, in his lifetime, the agent of Amelia Dumas for the transaction of all her business and had the control of her lands and custody of her papers.</p> <p>Francis Gonzales .testified that he had heard the word “zacatel” used in Mexico, that it is a Spanish provincial word, and means the place where the grass grows. “Zacate” is the grass. The cattle will eat it. It is applied to a dry place where the grass grows. That he was not familiar with its use in Florida, and could not tell whether it means here lands covered with water or not. That in Spanish “shore” is “orilla.”</p> <p>Venancio Sanchez testified that he had lived in St. Augustine a great many years, and knew the meaning of the provincial -word “zacatel” in Florida. “Zacatel” means occasionally covered with water where salt marsh grass grows. ‘ ‘Cienque’ ’ means low lands on high ground. Zacate means salt grass. “Zacatel” is the' place where “zacate” grows. It would not be “zacatel” where the tide ebbs and flows unless‘there was grass growing under the sea.</p> <p>Francis P. Sanchez testified that he had lived many years in St. Augustine. ‘ ‘Zacate’ ’ means marsh grass. “Zacatel” means the place where there is a large body of marsh grass.</p> <p>Henry B. Dumas, -recalled, stated that Amelia Dumas, upon getting her deed from Sanchez, sheriff, took possession of the lands described in it. “I can’t say exactly how she did so; the lands, the most of them, cultivated and enclosed in a fence. My father lived in the vicinity on his homestead. He had control of Amelia’s lands as her agent, and enclosed the Papy grant in the same lot as his homestead; same fence around both. House on homestead was built year after Amelia bought Papy grant. I went away to Savannah in 1849, when I was 20 years old, and did not return to stay till 1869; was back home occasionally and saw the premises. The road to the ferry on Avice’s and Vaill’s ferry is not known as Bridge street. The Suarez grant, afterwards the Cooper lands, bound the Papy grant on the south. The Bosquet grant is the west. At the time of the deed to Amelia Dumas, there was a trail running along the western edge of the marshes of Maria Sanchez creek. The marshes were all flooded by ‘'the tide at high, and were left dry at low tide.” The trail was covered by ordinary high tide, but at low tide it was left bare. That as agent for Stella Dumas he had since his return from Savannah resided on these lands. On cross-examination, he stated that his father. P. B. Dumas, built his house on the grant to the east of the Papy grant. One fence enclosed both grants. The fence extended east to the west side of the trail. Witness does not recollect a ditch being there — not on the east side. There was a fence on the west side of the trail; can not give the distance; thinks it was 10 to 20 feet •west of the trail. There were tenants on the tract on the west side of the trail; they were on high land; did not see any posts put down for fence; never saw any change in position of fence. It had been there since he could remember; is still there; is the fence now on the west side of Washington street. Has made sales of land on Papy grant since father’s death. All sales he made were to the west of the trail. Did not exercise acts of ownership to lands east of trail. Has been aware of buildings put upon the land occupied by Garnett. Re-direct: When witnesses’ sister Amelia got deed to Papy grant there were tenants on it, and they became her tenants. The houses so occupied were not on the lands for ■which this action is brought. Knows where the lands described in the declaration and occupied by defendant are. “They are on what is known as the marsh, directly east of Washington street opposite the land of the Papy grant, now occupied, heretofore sold by Stella Dumas, and between them and the channel of Maria Sanchez creek.</p> <p>Alexander Bryant, for plaintiff, deposed that he knew the Papy grant south of Bridge street. Lived near there before .there was any filling of the land below the water east of Washington street. East of the trail the land below ordinary high tide was bare. It was some distance to the grass (as far as the length of this room), but can not give the distance. It was sand and mud and marsh, all mixed together.</p> <p>Toney Huertas, for plaintiff, testified that he had lived in St. Augustine 78 years, and known the Papy grant ever since he was a child. Peter S. Smith at one time owned and occupied it. It was fenced after Smith bought it. He laid it out into lots and set out trees. He owned the Bosquet grant and the Crosby lot. At the time Smith owned these premises there was a trail across them to the Segui plantation. The trail was covered by water run upon the land to the west of it at high tide till a ditch was dug to keep it out. East of the trail the ground was marsh and land. The trail was on the east side of the ditch. Prom the trail to the edge of the marsh grass was about 30 feet. The trail was not flooded at ordinary tide, but the marsh grass was flooded. The marsh grass and field grass ran in spots.</p> <p>Cross Examination: The marshy ground did not extend to the trail. No grass grewT where people walked. Gaspar Papy put up a fence. Witness did not assist in doing it. Afterwards Smith rebuilt it. Witness never had any conversation with Papy or Dumas as to the east line of this tract. Smith rebuilt fence in same place. When he sold to Crosby, he sold an extreme end of the grant. We worked inside of the ditch. The ditch was outside of the fence, and about four feet west of the trail. Carriages went along the trail.</p> <p>Re-Direct: Carriages were not driven along the trail. We used to go down to the point to cut grass for the horses. The trail was not fenced on the east side. It was an open prairie like to the east.</p> <p>Appeal from the Circuit Court for 'St. Johns county.</p>

<p>Appeal from the Circuit Court for St. Johns county.</p> <p>The facts in 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.

Governor’s appointment of county commissioners held valid. STATEMENT. On the calling of the above cause in mandamus, upon the relation of Robert, counsel reported herein as appearing for the Marvin board of county commissioners announced that they desired to argue the ■question of the right of such board to the offices claimed by the members thereof.

<p>Writ of error to the Circuit Court for Orange county.</p> <p>STATEMENT.</p> <p>Weese, the defendant in error, sued the plaintiff in error for personal injuries received by him while in the employment of the company. The essential aver-ments in the declaration as to the canse of action are as follows: That on the 6th day of October, A. I). 1886, the defendant company,, plaintiff in error here, was a corporation owning and running a railroad from Sanford, in Orange county, to Tampa, in Hillsborough county, and that plaintiff, Weese, was employed by said corporation as a laborer on said road to wipe and clean the engines that were brought into the town of Tampa at night from seryice on said road, his term of service being ten hours each night when there were engines requiring the same, at the compensation of forty dollars per month; that on the night of the 4th day of October, A. I). 1886, an engine of said corporation was placed on the main track of its road in the town of Tampa, by the order of Thomas Landrum, the then acting yardmaster in the said town of Tampa, and plaintiff, Weese, being an employe of said corporation, under duty to clean said engine, and being instructed by William Coleman, an engineer, and an agent of said corporation in this department, to wipe off and clean the same, proceeded to do so ás instructed; that no pit was prepared, in which to stand in the process of cleaning said engine, and no signal lamp was furnished said plaintiff to hang upon said engine as notice and warning to others employed on said road while-said engine was being Cleaned; that in order to clean said engine, plaintiff was compelled to get under it; and in order to get under it, it was necessary to go-between the wheels, and when under it there was noway of escape except between the wheels, and that while under said engine no damage could ensue unless from gross neglect on the part of said corporation or its agents.</p> <p>It is also alleged that said plaintiff "went under said engine to clean it about nine o’clock on the night of the 4th day of October, A. D. 1886, with a lightwood torch which gave abundant light and notice of his locality and employment, and that he remained at work cleaning said eugine until about four o'clock on the-morning of the 5th day of said month, when William Coleman, the engineer aforesaid, who had placed said engine upon said track and instructed plaintiff to clean it, carelessly and negligently ran a train of cars belonging to said corporation back against said engine, and by great force and violence drove it out of its place, and plaintiff being forced to escape from under-said engine or be crushed by it, was caught Avhile trying to escape therefrom by the wheel of said engine, and the muscles of the calf of his left leg were entirely crushed off from the bone, and that said injury was-inflicted without any negligence on the part of the-plaintiff.</p> <p>The declaration then alleges that said plaintiff suffered great pain and sickness from said injury, and has been wholly disabled bodily and ' mentally from performing labor and attending to business since the same was received, and also that by reason of said injury said plaintiff lias been permanently disabled, physically and mentally. Other sources of damage resulting from said injury are stated, but it does not become necessary to set them out here. The total damage alleged is twenty thousand dollars.</p> <p>To this declaration the defendant company demurred on the grounds that it sets up no sufficient cause of action; that the relation of fellow-servant existed between plaintiff and those in charge of defendant’s engine which it is alleged caused the injury; that as shown by the declaration it was plaintiff’s own negligence that caused said injury, and not that of defendant or its agents; and for other causes apparent upon the face of the declaration. This demurrer was overruled and the defendant company filed four pleas. The first one was the general issue — not guilty. The second plea alleged in-substance that plaintiff’s injury was caused by his own negligence, and not by the fault of defendant, or of its servants or agents. The third, that if the plaintiff was inj ured as he has alleged in his declaration, said injury was caused by the negligence and lack of care on part of plaintiff contributing thereto. And fourth, that if plaintiff was injured by the negligence or lack of care of any of the agents or employes of defendant, as he has alleged in his declaration, said negligence was that of the fellow-servant, or fellow-servants, of the plaintiff.</p> <p>Some two months and a half after issue had been joined upon defendant’s pleas, its counsel asked leave to file a plea to the jurisdiction of the court, to the following effect, viz: That plaintiff’s cause of action, if any he has, occurred in the county of Hillsborough, in the 6th judicial circuit of Florida, and that no sufficient service has been had upon defendant to give this court jurisdiction of this cause; said service, ac-wording to the return of the officer who undertook to to make the same, having been made on one Rudolph, who was not the president, secretary, general manager, general solicitor, superintendent, or resident business agent where the cause of action occurred. This application was refused and the cause tried upon the issues presented, resulting in a verdict for plaintiff in the sum of five thousand dollars. A motion in arrest of this judgment was made by the defendant below on the grounds that no such service was had in said cause upon defendant as to give the court jurisdiction thereof, and the court had no jurisdiction to try and ■determine said cause, and the same should have been tried, if at all, in the county of Hillsborough, 6th judicial circuit of the State of Florida. This motion was •overruled. Upon a motion for a new trial made ) y ■defendant, plaintiff remitted the sum of two thousand dollars, and thereupon the court overruled this motion fora new trial and awarded judgment in favor of plaintiff for three thousand dollars and costs of suit, and from this judgment the defendant has brought the ■case here by writ of error.</p> <p>On the point of the company’s liability, including the plaintiffs relation to the company and its employes operating at the railroad yard in Tampa, and the cause of the injury to .the plaintiff, the effect of the testimony is as follows: Weese, the plaintiff, was employed by the defendant company some time about the ■38th of July, 1886, to wipe and clean' engines that went into Tampa and to fire them up before leaving time on out-going trips. During his employment this service was performed at night between 6 o’ clock in the evening and 6 o’clock in the morning, as the engines went into Tampa in the early part of the night, -and left early next morning. When Weese was first employed the railroad was narrow guage, and he worked on the engines in wiping and cleaning them while standing over pits on side tracks, where they were placed for this purpose. A pit is a dug out place between the tracks deep enough for a man to remain in and escape injury should the engine pass over it. About the middle of September, 1886, the rails of the company’s road on the main line were widened ’ to a standard guage, and from the change up to the time of the injury, which was on the morning of the 5th of October, 1886, only one side track of the company's road at Tampa had been widened to the standard guage, and no pit had been constructed at that point under either the main line or the side track of the changed guage.. Erom the time the guage was widen ed, engines, after coming into the yard, were constantly placed on the main line and the widened side track, and the plaintiff there performed his work of cleaning and wiping them. In order to perform, this service it was necessary for him to go under the engines, and the only way this could be done was by passsing between the -wheels of the engine, and this space was narrow, not exceeding three feet near the rails, and got much less where the wheels approached each other nearest. The space under the engine was about six feet long, the width of the guage, and high enough for a man to remain on his knees with his body erect. In the yard at Tampa much shifting or making up of trains was done at night, at least two trains — one passenger and the other freight — were made up each night, preparatory to leaving next morning. The plaintiff knew these facts, as it was his duty not only to wipe the engines during the night, but to put fire into them at least two hours next morning before leaving time. He continued in his employment of wiping engines after the guage was changed, and made no objection to his work on account of the absence of pits, or that the engines were placed on the main line and side track for him to work on them. On the night of October 4th, 1886, two engines were in the railroad yard at Tampa for plaintiff to clean, one a passenger engine and the other called the freight engine. Plaintiff cleaned the passenger engine, and was at work on the freight engine some time about 4 o’clock in the morning when he received the injuries for which he sues. This freight engine had- been placed on the main line a short distance south of the passenger depot by William Coleman, yard engineer, with box cars in front and behind it. There is a conflict in the evidence as to whether or not the engine was fronting north or south. The plaintiff says it was fronting south, and in this he is corroborated by other testimony; but the defendant’s-testimony is to the effect that the engine was fronting north, the direction it was to go on its outward trip. The main track terminated with an abutment not far ■ south of where this engine was placed and the space between the engine and the abutment contained box cars. On the south end the engine was coupled to a freight box by the draw bar, and on the north end it was either coupled to cars, or they were standing close to it. The plaintiff was not certain whether or not the engine was coupled onto a car north, but if not, cars were standing near it, and the effect of other testimony in the record tends to show that the engine was coupled to the cars north. About three o’clock in the morning of the 5th of October, 1886, Coleman, the yard engineer, was engaged in making up the passenger train preparatory for leaving next morning. Weese, it seems, had put fire in the engine used by Coleman, and knew that he was in the yard shifting cars. This lie was in the habit of doing every morning. On the morning in question the yard engineer' backed the passenger engine to the fish wharf and. brought up a car, and in coupling it on to the passenger coaches standing in front of the engine under which Weese was at work, moved it, and in attempting to escape between the wheels as the engine was. moving, Weese got caught, and his left leg injured. Weese and another witness who was on the engine at-the time testify that the engine was moved about twelve or fifteen feet. Weese says that he was at work on the eccentric bars immediately under the engine when it was struck, and that it moved back moderately fast — as fast as a man can walk or faster — and that he crawled along under the engine to keep from being crushed by it. His only way of escape was through the wdieels, and he jumped between them, because he thought it was his safest course.</p> <p>The testimony of other employes in the yard at Tampa is to the effect that the engine came back carefully, and that the coupling on the fish car only took the slack out of the cars, moving the engine not over six inches. Their testimony also tends to show that Weese was not directly under the eugine, and his leg-wTas across the rail, but Weese testifies that he was directly under the engine, and his leg was caught in his effort to escape between the wheels while the engine was in motion. This engine had the brakes set on it tightly, and was not “chocked."’ Weese put the brakes, on, and,-it seems, he had been told that the engines should.be “chocked,” or the brakes put on, to prevent them from rolling, and he had been shown how to chock the engine by putting wood on the track in-front and behind the wheels. This instruction as to-shocking” the engines was given before the guage.-was changed. It also appears that no signal lantern was hung out on the engine, and Weese did not make any request to be furnished with any, and the company did not offer to furnish any. There were lights hanging along the depot shed not very far from where the engine was stationed, and Weese had a torch light with him under it. The torch light consisted of a can with a tube in it to burn oil.</p> <p>The yard engineer testified that he supposed it was customary for railroad companies to furnish signal lanterns if the engine wipers demanded them.</p> <p>No signal lanterns had been hung on the engines at any time when Weese worked on them, as he testifies, .although one witness introduced by him says he thinks a signal lamp was on the engine at the time of the injury.</p> <p>The. engineer, Coleman, wdio backed the engine against the cars that moved the engine under which. Weese was injured, was under the control of one Landrum, yardmaster at Tampa, whose duties, it seems, were to take charge of all trains upon their arrival, make them up ready to go out, do all necessary -shifting, take charge of the cleaning of cars and turn trains over to conductors ready to go out. Coleman was the engineer who managed the engines in doing the shifting, and he was under the direction of the yardmaster.</p> <p>Weese testified that he was employed to work for the company by the master mechanic at Tampa, whose duty*it was to repair engines, and whose name was McLane, but that Instrom was master mechanic at the ■time of the injury; that Instrom had been absent from Tampa for eight or ten days, or two weeks, when plaintiff got hurt, and in the absence of the master me•chanic, Coleman occupied his place, so far as plaintiff was concerned, and by this he explains that Coleman overseed his work and instructed him in reference to the same. When Instrom was present he superintended and instructed plaintiff, and in his absence Coleman took Instrom’s place. Plaintiff was asked who put Coleman over him, and he said he supposed Instrom did; he never heard any one say that Coleman was to look after him, and all he knew about it was. when Instrom left he told plaintiff to go to Coleman for any instructions that he might need in his business. lie also stated that Coleman told him in In-strom’s absence that he, Weese, would have to continue to wipe engines on the main line and side track, and said that plaintiff would have to clean engines there until the pits were broadened out, and that he continued to clean the engines there until lie got hurt. No special instructions were given Weese in reference to Aviping the engine on the occasion he got hurt. When first employed he was told to wipe the engines when they came in and were ready, and after learning his duties he continued to wipe the engines without further spe'cial instructions. After the guage was changed he continued to wipe the engines without pits, and Coleman told him he would have to do this until pits, ■were constructed. It does not appear that Weese ever went to Coleman for any instructions in reference to iviping engines, and in performing this service he ivas acting in the line of his employment by the company.</p> <p>The superintendent of the company testified that McLane, a machinist in the Sanford shops, ivas transferred from Sanford to Tampa to take charge of the inspection of engines and to do any necessary vuder-repairing on them, and witness considered it McLane’s duty to see that the engines Avere properly cared for in detail. He could not say what particular power McLane had at the time of the injury over the engine wiper, but the rules governing in his position did not .give the power to discharge or. appoint a man except by consent of the master mechanic, and he, the inspector, is held responsible for carelessness in cleaning engines intrusted to his care. If any engines were-found in a filthy condition the master mechanic, instead of going to the wiper, would go 10 the inspector; or in ■other words, would not go over the head of a superior to his inferior. Instrom, who occupied the same position at Sanford that McLane did at Tampa, was sent to Tampa when McLane left. That engine wipers were supposed to know what they needed in performing their duties, and that it was customary to furnish signal lanterns to them upon request. This request should be made to the master mechanic, and he furnished -such lanterns upon proper requisitions.</p> <p>The testimony on other branches of the case need not be referred to in this connection.</p>

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

<p>Writ of Error to tile 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 Marion county. '</p> <p>The facts in the case are stated in the opinion of the ■court.</p>

<p>■Criminal law — charges, when taken by the jury to their ROOM, SHOULD NOT HAVE EXTRANEOUS MATTER WRITTEN THEREON THAT TENDS TO INJURY OF PRISONER.</p> <p>Where the judge inadvertently writes the word “guilty” on the margin of an instruction given to the jury, and permits the instructions thus written upon to be taken by the jury to their room: Held, (1) that the presumption is that the extraneous word was read by the jury, unless the contrary was clearly shown; (2) that as the writing of such word by the judge was capable of and tended towards influencing the jury detrimentally to the defendants, that the presumption was that it did so influence them unless the contrary was clearly shown; and’ that the burden was upon the State to show beyond a reasonable doubt that such writing upon the charge was not read by the jury; or, if read by them, that it did not result in injury to the. defendants; and (3) that such word written upon the charge and sent with the jury to their room, was reversible error, unless it clearly appeared that no injury resulted to the defendants therefrom.</p>

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

<p>CRIMINAL LAW — PRISONER PRESENT AT BEGINNING OE TRIAL, HIS PRESENCE PRESUMED TO CONTINUE.</p> <p>Where it affirmatively appears that the defendant in a criminal case-was personally present in cohrt at the beginning of his trial, that was begun and finished on the same day without interruption by recess or otherwise, the presumption is that he continued to be so present up to and until the rendition of the verdict, even though the record is silent as to whether he was so present at the rendering of the verdict or not.</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 Hillsborough county.</p> <p>The facts of the case are stated in the opinion of the court.</p>

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

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

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

<p>.Motion to vacate Supersedeas.</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 Marion •county.</p> <p>The facts of the case are stated in the opinion of The court.</p>

<p>Appeal from tlie Circuit Court for Hillsborough, 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 Rural ■county.</p> <p>The facts in 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>STATEMENT.</p> <p>This is a bill for an injunction filed by appellees against appellants. The bill alleged that complainants were the owners in fee of a certain tract of land situated in Escambia county, Florida, consisting of six hundred and forty acres, described by metes and bounds, and known as t-he Benjamin Hadley, or Rich-land Pond, tract, and that they and Benjamin Hadley, under whom they claim title as heirs, had been in possession of this land with interruptions for more than sixty years, and were then in possession; that said land was very thickly studded with pitch pine trees of large size and of great value, and that defendant Carney and his foremen Gilchrist and Carmichael have 'from time to time, during two years prior to filing the bill, trespassed upon the said land for the purpose of boxing the trees, and thereby producing turpentine which they have removed from-said trees and from said land; that not only does the removal of the turpentine from said trees and land deprive complainants of the said turpentine and the value thereof, but its extraction from said trees greatly lessens the value of the same as timber producing trees, and except for the purpose of the production of turpentine and timber said trees are valueless; that said trees constitute in large part the value of said land, and without them in a condition to be made valuable for turpentine and timber the said land is of little value; that the trespasses of respondents are continuous and frequent, and they threaten not only to trespass in the future upon said land for the purpose of removing turpentine already collected in boxes on the trees, but from time to time to trespass for the purpose of boxing and rescrap-ing said trees; and that said respondents reside in the state of Alabama and are possessed of no property of any kind in the State of Florida, and unless they are restrained from their said repeated and innumerable trespasses, 'complainants are remediless, save by repeated, vexatious and multiplied suits against respondents, which would be fruitless in the State of Florida because of their alleged want of property in this State. The bill prays among other things for an order restraining ■ appellants from trespassing upon the said land for the purpose of boxing- or scraping or otherwise injuring the trees upon said land, and from removing the turpentine already in the boxes on the same.</p> <p>The injunction as- prayed for was granted, and respondents answered the bill. The answer denies the allegation that complainants were the owners of the said tract of land, or any part of it, or that they or any of them were then in possession of the same, or have at any time been in possession except for a few days during-the month of March, 1888, when they or their agents went upon a portion of said land, but were notified that they were trespassers by Carney, one of the respondents, or his agent, and they shortly thereafter left said premises and have not since made any effort to take possession of same; that said land was deeded December 18th, 1820, by Benjamin Hadley, the ancestor through whom complainants claim title, for valuable consideration to one William Denman, and the same-lias never been reconveyed to said Hadley or his heirs ; that said land belongs to and is the property of William M. Carney, one of the respondents, and that he is in possession of same as owner and adversely to all others, and has been so in possession since the-31st day of August, 1882, when the same was deeded to him by John D. Reilly for valuable consideration, and said deed was duly recorded on the 16th day of February, 1883. Further, that when said Reilly executed said deed he was in actual possession of said land as owner thereof under a deed conveying same to-him by James J. Milstead, bearing date March 27th., 1852, and that he (Reilly) had been in possession of the said land since the date of said deed; that said Milstead at the time of making said deed to Reilly was in possession of said land under chain of title from said William Denman, to whom Benjamin Hadley had ■«onveyed.</p> <p>The allegation that respondents were without property in the State of Florida is denied, and it is averred that Carney, one of them, owns about six thousand acres of land in Escambia county, Florida, and further, that a suit for damages alleged to have been sustained by complainants by reason of the alleged trespasses on the part of respondents was then pending between said parties in Escambia county, Alabama. It is also alleged that the matters contained in complainant’s bill are determinable at law, and do not constitute any ground for relief in a court of equity, and pray the same advantage by their answer as if they had •demurred to said bill.</p> <p>Respondents moved to dissolve the injunction be-oause the material allegations of the bill had been denied, and at a subsequent date moved to dissolve the injunction and dismiss the bill for want of jurisdiction in the court appearing upon the face of the record. The motions to dissolve were refused and the case proceeded regularly to final hearing, when upon the pleadings and proofs a final decree was rendered adjudging complainants to be the owners of the land in •question, and that the respondents and their agents and 'attorneys be perpetually enjoined from going upon ■said land to box or scrape the pine trees thereon or to .remove any turpentine therefrom, and from committing any acts of trespass on the land. Respondents appealed.</p>

<p>Writ of error to the Circuit Court for Polk 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 in the case are stated in the Opinion of the-court.</p>

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

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

<p>Writ of Error to tlie Circuit Court for Yolusia •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 Nassau county.</p> <p>The facts of the casé are stated in the opinion of' the court.</p>

<p>Writ of Error to the Circuit Court for Nassau county.</p>

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

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

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

This is a case of original jurisdiction. The facts of the case are stated in the opinion of the court. Motion for peremptory writ.

<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>1. In order to obtain a statutory supersedeas, a plaintiff in error must come within the provisions of the statute. By its provisions a party against whom an entire money judgment has been rendered in the lower court may, as matter of legal right, within the time prescribed, supersede such judgment by giving the bond in the sum. conditioned and approved as required ; but the statute does not secure, to a plaintiff in error the right, as matter of course, to supersede a judgment not rendered against him, although it may be for a definite sum of money, and affecting his interests. Where no judgment for an entire sum of money lias been rendered against the plaintiff in error in the court below, the judgment as to him is other than a money judgment, within the meaning of the last clause of the first part of Section 1272, Revised Statutes.</p> <p>2. Attachment proceedings were instituted by E. & V. against M., and levy made on the latter’s personal property. M. filed a bill against E. & V. and the sheriff to enjoin the sale of $1,000 worth of the property, on the ground that it was exempt to M. as the head of a family, under the Constitution. The entire property levied on was sold as perishable under the attachment proceedings and the proceeds were paid into the registry of the court. M. filed supplemental amended bill against E. & V. asking that $1,000 of the money in the registry of the court be paid to him as the head of a family, and exempt under the Constitution. The Circuit Court held that M. was entitled to the exemption, and directed the register of the court to pay to him $1,000 of the money. E. & V. appealed from the decree, and within thirty days from its rendition filed a bond in the sum of $1,500, approved by the Circuit Clerk, conditioned to pay the $1,000 and interest to M., and the costs of suit in the event the decree should be affirmed: Held, That the decree appealed from was not such a decree for money against appellants as they had a right to supersede, as of course, under the statute, and that it would require an order of the proper court, or judge, to supersede such decree on appellants’ appeal.</p>

<p>Tills 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 Brevard 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>1. The provision of the act of May 11th, 1893, Chapter 4130, that all appeals in chancery, whether from final decrees or interlocutory orders, must be taken within six months after the entry ■ of the decree or order appealed from, has no re troactive effect, but applies only to decrees and orders entered after the act became operative. The act took effect August 1st, 1893, or sixty days after the fiual adjournment of the Legislature.</p> <p>2. The purpose of Sec. 18 of Article III of the Constitution, that a statute shall not take effect until sixty days from the final adjournment of the Legislature at which it may be enacted, unless otherwise specially provided in the act, was to enable the people to become acquainted with the provisions of legislation, and not to require them to govern their actions by the same before it has become operative.</p>

<p>Writ of Error to the Circuit Court for Columbia 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 Marion 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 Taylor county.</p> <p>Motion to vacate Supersedeas, and for issue and service of Writ of Error nunc pro tunc.</p> <p>The facts of the case are stated in the opinion of the court.</p>

This is a case of original jurisdiction. Motion for Writ of Prohibition. The facts in the case are stated in the opinion of the court.

<p>1. A note payable to a married woman and secured by mortgage» on real estate was endorsed by her alone. On the mortgage-was written. “For value received, I do hereby assign, transfer- and set over the within mortgage, and the note to secure-which it is given, unto ” certain named endorsees, and this, transferwas signed by both husband and wife : Held, This to be a compliance with the requirement of the statute, that the husband and wife shall join in all sales, transfers and conveyances, of the personal property of the wife.</p> <p>2, The provision of the statute'(McClellan’s Digest, page 755, §6)„ that “the real estate of the wife shall only be conveyed by the joint deed of the husband and wife, duly attested, authenticated and admitted to record, according to the laws of Florida regulating conveyances of real property,” was not intended to render invalid, as between the parties thereto, a deed of a, married woman conveying her real estate otherwise in compliance with law, but not recorded. Christy vs. Burch, 25 Fla.,. 942, 2 South. Rep., 358, cited and approved.</p> <p>3. A married woman can in conjunction with her husband convey-the property of which she is seized in fee to secure the payment, of her husbands’s debts.</p> <p>4. When a chancellor, after adjudicating the equities between the-parties, in a cause not under a default, refers it to a master-for his report, the proceedings before him are regulated and controlled by the rules of practice appiliable to such a ref erence„ and the parties are entitled to notice and a hearing on the matters specified in the order of reference.</p>

Writ of Error to the Circuit Court for Hillsborough county. The facts of the case are stated in the opinion of the-court.

<p>Writ of Error to the Circuit Court for Duval co.unty.</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>

<p>TELEGRAPH COMPANIES — CIPHER MESSAGE — DAMAGES.</p> <p>Tlie following rule; formulated in Hadley vs. Baxendale, 9 Exch. 341: “Where two parties have made a contract which one of thesm has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it:” Held, to be applicable to the contracts of telegraph companies for the transmission and delivery of telegraphic messages: and, consequently, that for its breach of a contract to transmit or deliver an unexplained cipher, or otherwise unintelligible message, such company is liable only for nominal damages, or, at most, for the sum paid it for the transmission and delivery thereof. Western Union Tel. Go, vs. Hyer Bros., 23 Fia., 637, 1 South. Rep. 139 ¡overruled. Mr. Justice Mabry dissenting.</p>

<p>RAILWAY DRAW-BRIDGE — OBSTRUCTIONS UNDER — WHO LIABLE FOR DAMAGE CAUSED BY.</p> <p>Where a railway company, having lawful authority so to do, crosses a public navigable stream or watercourse with its road, erecting in a proper manner the proper and necessary structures for such crossing, occupying therewith the space and no more than the space permitted to it, and so erects and uses such structures as that they shall not unnecessarily abridge or destroy the usefulness of such stream to the public as a navigable highway, using in a proper manner a movable draw-bridge by which it crosses that part of such stream left open for the public navigation thereof, it is not liable for injuries resulting to vessels navigating such stream from coming in contact with obstructions in the open space or channel of water under such drawbridge when such obstructions are present without' fault no such company’s part. The open space left to be temporarily spanned from time to time by the railway’s draw-bridge is left not only to the free tise, but to the control and care of the public, and the railway company is under no more obligation to keep it free of obstructions present without its agency, than it is to care for any other part of the channel of such stream.</p>

<p>This is a case of original jurisdiction.</p> <p>STATEMENT.</p> <p>An information in the nature of a quo warranto was hied by the Attorney-General, on behalf of the people of the State of' Florida, in this court on the 17th day of October, A. D. 1893, against the defendants, Benjamin F. Billon and twelve others, alleging in effect that they, without right or legal warrant, have usurped and still do usurp the offices of councilmen of the city of Jacksonville. It is alleged in the information that Thomas W*. Roby and sixteen others named were duly appointed by the Governor of the State of Florida to be councilmen for the various wards of said city, under and by virtue of the act of the Legislature approved May 16th, 1889, entitled “An act to amend an act entitled an act to establish the municipality of Jacksonville, provide for its government and prescribe its jurisdiction and powers, approved May 31st, ]887,” and that they qualified by taking the oath of office prescribed by law, were duly commissioned as such councilmen, and thereupon entered upon and performed the duties of said offices and exercised the rights, benefits and privileges thereof, until the same were usurped by the defendants.</p> <p>Thomas W. Roby and the sixteen persons named, it is alleged, constitute the city council of said city, and are still entitled to use, exercise and enjoy the offices of councilmen of said city.</p> <p>It is further related that the defendants, Billon and the twelve others mentioned, for the space of eighty days last past, and more, without legal warrant, grant or right whatever, have used and exercised, and still do use and exercise the offices of councilmen of said city, and that they have claimed and still do claim to be councilmen of said city, and to have the right to use and enjoy all the liberties, privileges and fran-■cliises belonging and appertaining to said offices of city councilmen, but that said offices, liberties and franchises, during the whole of said time, have been and still are usurped by them, against the people of the State of Florida.</p> <p>The information proceeds with the allegations that the claims of the said defendants to the offices in question are based upon the pretense that they were elected to the same at an election for municipal officers pretended to be held in and for the said city of Jacksonville on the 18th day of July, 1893, by virtue of an act of of the Legislature of Florida, approved May 16th, 1893, being Chapter 4301, laws of Florida. This election, and the act under which it was held, are alleged to be invalid, void and in violation of the Constitution of the State of Florida, in this, that at said election, by the terms of the act, a considerable number of the inhabitants and citizens of said city-, to whom the Constitution guaranteed the right of suffrage at the time of said election, were denied the right to vote and participate therein, the excluded classes under said act being enumerated under the following heads:</p> <p>First. All male persons residents of said city at the time of said city election possessing the constitutional qualifications of electors, but who at the time of the general State election held next preceding said city election were not qualified electors by reason only of not having attained the age of twenty-one years.</p> <p>Second. All male persons residents of said city at the time of said city election possessing all the qualifications of electors, but who at the time of the general State election held next preceding said city election, were not qualified electors by reason only of not having-resided and had their domicile, home and place of permanent abode in the State of Florida for one year at the time limited for registration for such election.</p> <p>Third. All male persons residents of said city at the time of said city election possessing all the constitutional qualifications of electors, but who at the time of the general State election held next preceding the said city election, were nob qualified electors by reason, only of not having resided and had their habitation, domicile, home and place of permanent abode in the county of their then residence for six months, at the time limited for registration for said election.</p> <p>Fourth. All male persons residents of said city at the time of said election who at the time of the general State election held next preceding said city election, and at the time of .said city election, possessed all the constitutional qualifications of electors, but were not .electors of any of the election districts of said city at the time of said State election.</p> <p>It is further alleged that the act under which said election was held is unconstitutional for the reason that by its terms only those persons were allowed to vote whose names appear on the registration lists,, after the same had been revised by the persons named in the act as election commissioners, without regard to registration in fact, and that by the terms of said act persons were allowed to vote at said city election who were qualified electors at the general State election held next prior thereto, but who had afterwards lost their domicile in the State, and county of Duval, and had not i egained the same in time to become an elector at the time-of said city election under the provisions of the Constitution; and also that at said election by the terms of said act the qualified electors of said city of Jacksonville were not permitted to vote for whom they pleased, but were res rioted in the right of suffrage to vote for such person or persons whose names were placed upon aa ‘'official ballot” by the election commissioners named in the act.</p> <p>The foregoing are the grounds especially alleged in the information impeaching the validity of the act of 1893, Chapter 4301, under which the election was held.</p> <p>The defendants, other than Walter F. Coachman, moved to quash the writ of quo warranto, and this motion has been treated here as a demurrer to the information. Among the grounds of this motion are the following: That said information shows upon its face that the defendants have not exercised, and are not now exercising, the offices of councilmen of the city of Jacksonville, in the county of Duval, and State of Florida, without legal warrant, grant or right; that said writ shows upon its face that defendants use and exercise the offices of councilmen of the city of Jacksonville under and by virtue of an election held on the 18th day of July, A. D. 1893, under the provisions of an act of the Legislature passed in accordance with the provisions of the Constitution, arid approved by the Governor on May 16th, 1893, at which said election they received a majority of all the votes cast; that the Constitution of the State of Florida does not guarantee the right of suffrage to any inhabitant or citizen of the city of Jacksonville, or any other city, at a municipal election; that Section one of Article six of the Constitution of Florida does no.t fix the qualifications of voters in municipal elections, but is limited by its express terms to elections for State and county officers provided for in the Constitution; and that the Constitution of the State of Florida does not prohibit, either in express terms, or by necessary implication, the Legislature from restricting the voters in any municipal election to voting for snob person or persons as bad procured their names to be placed upon an'official ballot, as provided in Chapter 4301 of the laws of Florida. There are other grounds of the motion that need not be set out here, as the above present the controlling questions in this case for our decision. ■</p>