Volume 33 — Florida Reports

STATEMENT. This cause is an action of ejectment brought by the appellee against the appellants, and involves to a certain extent the Spanish grant familiarly known in Pensacola as the Pintado grant. The trial resulted in a verdict and judgment for the plaintiff. The original grant or title, in the Spanish language, as translated, and excluding the accompanying plans of the premises granted, is as follows : CJKT G3TTARTILLO. Sello Quarto, Un Quart ¿lío: Years 1816 & 1817.

Writ of Error to tlie Circuit Court for Duval county. STATEMENT. Section 9 of Chapter 4115 of the Laws, approved.

STATEMENT. The action is ejectment to recover possession of Lots 21 to 29 inclusive of a certain subdivision of the S. E. ^ of S. W. i of Section 7, Township 2, Range 27 East, according to map recorded in book “AO,” page 109 of the records of Duval county, and including- about the N. i of the E. of the S. E. \ of the S. W. i of Section 7, Township 2, Range 27 East.

<p>Appeal from the Circuit Court for Yolusia county.</p> <p>STATEMENT.</p> <p>The declaration, after stating that the defendant was a railroad corporation under the laws of the State operating a line of railroad in Yolusia county on June 28th, 1888, avers: That the company, not regarding the statute.in such case made and provided, did not then and there maintain fences on the sides of its railroad sufficient to exclude and turn live stock therefrom, by means whereof and for the want of such fences two horses of the plaintiff, without any default or negligence on the part of plaintiff, then and there strayed and went upon the said railroad at a certain place, in township 14, south of range 28 east, in said county, at which place such fence was then necessary to exclude and turn live stock from said railroad, and not where the said railroad then ran through a town or city, nor at a public crossing, nor at a crossing necessary for the use of owners or tenants of lands adjoining said railroad; and the said horses so being on the said railroad, there, to-wit: at the place in that behalf aforesaid, a certain engine and cars of the defendant then driven and governed by divers agents of the defendant on the said railroad, then and there ran and struck upon said horses, and thereby said horses, each of the value of $200, were killed and wholly lost to the plaintiff. That more than thirty days prior to this action plaintiff gave notice and presented his claim in writing for the damage sustained by the plaintiff by the killing of said horses, as aforesaid, to a general officer of the defendant, in the county aforesaid, but the defendant failed to pay such claim for the space of thirty days thereafter, and has ever since failed and refused to pay such claim or any part thereof, and concluding properly.</p> <p>The defendant pleaded, 1st, not guilty; 2nd, that it had and did provide and maintain fences on the side of its track at the places and points named in the declaration sufficient to exclude and turn live stock therefrom; 3rd, contributory negligence upon the part of the plaintiff; and, 4th, that it had never been served with a notice in writing as provided by the statute, and alleged in the declaration; and the plaintiff having joined issue there was a trial by jury which resulted in a verdict for the plaintiff for the sum of $302.50 damages, and motions in arrest of judgment and for a new trial having been made and denied, judgment was rendered for the stated amount, and for $114 as costs.</p> <p>The suit is founded upon the act of May 13th, 1887, which, in so far as the purposes of this case call for a statement of its provisions, enacts that every railroad company operating a railroad in this state shall erect and maintain substantial fences on the sides of such railroad (except through towns and cities, unless said towns and cities require the same), sufficient to turn and exclude all live stock therefrom, with stock-guards at all public crossings, and at such other crossings as may be necessary for the use of owners or tenants of land adjoining such railroad; and in case of a failure to erect and maintain said fences and stock-guards as aforesaid such corporation shall be liable for all damages which shall be done by its engines or cars, to any live stock, caused by a failure to erect or maintain such fences and stock-guards. The statute also provides that when any live stock is so killed or injured, the person entitled to damages therefor shall give notice and present his claim therefor to any general agent or officer of such corporation, or to any station, depot or other agent or officer acting for the corporation, in the county where the live stock was killed, such notice or presentment of claim to be in writing; and if, after such notice* the corporation shall fail to pay the claim for the space of thirty days suit can be brought on the claim; and if, as presented, it was reasonable and just, the jury or judge shall assess as damages against the corporation the actual damage to the live stock so killed or injured, fifty per cent, interest per annum on such damage from the day of the presentment of the claim, together with all reasonable attorney’s fees. It also enacts that if the corporation shall deem the claim presented to be unreasonable and _ unjust, and shall tender or offer to pay all reasonable or just damages for the stock so killed or injured, and the claimant shall refuse to accept the amount tendered or offered to be paid, and upon the trial the jury or judge, under the proofs, shall find a verdict for not more than the amount tendered or offered, the court or judge shall render judgment against the plaintiff for all reasonable costs, and such costs shall be deducted from the amount assessed as damage to the live stock, and the plaintiff shall be entitled to no attorney’s fees. Acts of 1887, pp. 114, 115; Rev. Stats., Sections 2271, 2272, 2275-2277.</p> <p>The other facts are stated in the opinion.</p>

Writ of Error to the Criminal Court of Record for Escambia county. STATEMENT. The first count of the information charges the plaintiff in error with forgery, and on this count there was a verdict of acquittal.

STATEMENT. Appellants sued appellee in the Leon Circuit Court, process being made returnable rule day in April, 1889.

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

<p>The failure of the commissioners to include in the revision of the statutes submitted by them to the Legislature of 1891, certain provisions of statutory law in force at the time, did not affect the power of the- Legislature to provide in the statute of that year entitled “An act to enact the revised statutes, and to provide for the printing, sale and distribution thereof,” that such omitted provision should be added to the draft of such revision and be made a part thereof; nor did it render the title of the act-insufficient as an expression of the subject of the act including, such omitted provisions.</p>

<p>1. Before a verdict returned by a.jury in cases of felony is complete it must be accepted by the court for record. At any time after the verdict is returned into court, and before it is accepted by the court for record, the accused has the right to have the jury polled in order to ascertain if the verdict offered is unanimous, and in the absence of a polling of the jury any member thereof has the right sua sponte to recede from the verdict agreed upon at any time before it is accepted for record.</p> <p>2. At common law the verdict of the jury in cases of felony was pronounced in open court, then entered on the record by the clerk, and after this affirmed by the entire jury, when it became complete. The manner of receiving and affirming verdicts in cases of felony discussed.</p> <p>3. 'When a jury returns into court an informal, insensible, or a. repugnant verdict, or one that is not responsive to the issues-submitted, they may be directed by the court to reconsider it, and present a verdict in proper form. The court should, however, use great caution, and not intimate to the jury the kind of verdict in substance that should be returned.</p> <p>4. After the case had been submitted to the jury under the charge-of the court they returned into court the following verdict, viz: “We, the jury, find the defendant guilty of manslaughter-in the first degree.” The court refused to accept this verdict, and stated to the jury that it was not in proper form, as there were no degrees in manslaughter, and that they must retire- and present a verdict in proper form. The jury retired and returned the following verdict, viz: “We, the jury, find the defendant guilty of murder in the first- degree, and recommend: him to the mercy of the court,” and this verdict was accepted by the court: Held, that the court did not err in refusing to-receive the first verdict and in accepting the second one.</p> <p>5. In the opinion of a majority of this court, the testomony in the-record is not sufficient to sustain the verdict of murder in the first degree, and a new trial is awarded.</p>

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

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

<p>1. The question of the unconstitutionality of a statute will not be considered at the instance of one whose rights are not shown to be affected by the statute. The principle applied as to the provision \bf Section 3, Chapter 4120, acts of 1893, denying compensation and mileage to defendant’s witnesses in criminal cases.</p> <p>2. An affidavit for a continuance that does not state the facts to be testified to by the absent witness, but gives, in effect, only the opinion of. the witness as to the guilt of the accused, is in-sufficient.</p> <p>3. Where there is no abuse of a sound discretion by the trial court in refusing a continuance, its action should not be disturbed.</p> <p>4. It is proper to refuse to instruct a jury that if anyone of them entertained a rea: onable doubt of the guilt of the accused it would be the duty of the jury to acquit.</p>

STATEMENT. The Provisional Municipality of Pensacola filed a hill in the Circuit Court of Escambia county against the Pensacola Gas Company to compel the specific performance of an alleged duty on the part of the gas •company, growing out of contract, to erect public gas lamps at such public places in the municipality as it should require.

Writ of Error to the Circuit Court for Walton county. STATEMENT. The shooting of the deceased, William Johnson, occurred on October 10th, 1892, in Walton county, at a house which defendant had built on land claimed by the mother of the deceased, and as to which there had been a contest between the mother of the deceased and the defendant, and which liad resulted in favor of the former.

<p>./Appellate practice—rehearing—agreements of counsel to be CONSIDERED MUST BE FILED.</p> <p>1. An application for rehearing of a cause in the appellate court that is practically a joinder of issue with the court as to the correctness of its conclusions upon points involved in its decis- . ion that were expressly considered and passed upon, and that . reargues the cause in advance of a permit from the court for such reargument, is violative of the rule governing applica- ' tions for the rehearing of causes, and will not be considered.</p> <p>'A When parties or their counsel enter into agreements affecting any causes before the appellate court, such agreements must be filed here with the record in such cause, otherwise the court can not consider them or be governed thereby in any manner.</p>

<p>Appeal from the Circuit Court for Hamilton 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>;1. Where a judgment entered upon a verdict of guilty as charged in the indictment on a trial since the Revised Statutes went into effect of an indictment for murder, has been reversed by this court on writ of error because the verdict did not ascer- ^ tain the degree of the crime, and a new trial awarded, the accused can be tried again upon the same indictment, and such second trial will not put him in jeopardy a second time for the same offense, within the meaning of the Constitution.</p> <p>:3. The accused was indicted, tried and convicted of murder in the first degree before the Revised Statutes went into effect. The judgment entered on this conviction was, upon writ of error to this court, reversed; and upon a second trial on the same-indictment, after the Revised Statutes took effect, a motion ' was made to quash the indictment on the grounds that by the said statutes the constituent elements of the offense charged, had been changed in this, that the degrees in manslaughter embraced in said offense have been done away with, and that the accused was thereby deprived of rights and benefits secured to him under the law as it existed when the offense was committed; and also that by said statutes the number of peremptory challenges allowed the accused under the former law had been cut down, and the number of such challenges permitted to the State had been inceased, to the detriment of the accused. This motion was overruled: Held, that the ruling was correct, and that upon the indictment the accused stood for trial under the law in force when the offense was committed, so far as the essential elements of the crime itself are concerned,, and that the subsequent law made no changes in this respect, as to the offense with which the accused was charged; that as. to the changes in reference to the number of peremptory challenges, they relate to the remedy and afford no ground for-quashing the indictment.</p> <p>3. Where a motion in arrest of judgment has been overruled and there is no bill of exceptions, and nothing in the record to show that the grounds alleged in such motion are true, this court can not assume that they ever existed. The mere recital of them in the motion affords no evidence that they are true.</p>

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

<p>Damage by fire set by railroad locomotive—combustible matter on railroad right-of-way and road-bed, negligence: WHEN—PRACTICE.</p> <p>1, Where a defendant interposes the plea of the general issue, that. requires nothing more than a joinder of issue thereon or the-general similiter to make the issue complete, and goes into and through a full and final trial of the merits of the controversy embraced in the declaration and plea, without noticing the-absence of such similiter, and without protest or objection to the trial because of its absence, he can not afterwards avail1 himself of the absence of such similiter as ground either for arrest of judgment or for reversal upon appeal.</p> <p>2, While it is not negligence per se in a railroad company to allow combustible matter to accumulate or remain upon its road-bed. and right-of-way, yet it may become negligence when taken in connection with other circumstances that render its presence there a cause of damage to others. Where it is apparent that damage would result to the adjacent property of others in the event of a fire started anywhere along a railway company’s abutting road-bed, then it becomes such company’s duty to render the chance escape there of fire from its engines less hazardous by keeping its road-bed and right-of-way clear of fire-feeding debris. The principle of the rule that, “the degree of care required to be used in any given case to avoid the imputation of negligence, must be according to the circumstances, or in proportion to the danger, such care as is ordinarily sufficient under similar circumstances to avoid danger . and to secure safety,” Held, to be applicable to the duty of a. railroad company in keeping its right-of-way free of combustible matter.</p> <p>3, Where the accumulation of combustible matter permitted by a. railroad company to remain upon its road-bed and right-of-way is of such character as to render the small sparks that inevitably escape from its locomotives, despite the most careful use of' the best-known and most approved appliances in common use-for the arrest of sparks, themselves a source of danger and a. constant menace to the adjacent property of others, then it is such company’s duty to remove such 'matter and keep its roadbed and right-of-way free thereof, and it is liable for its neglect of such duty when it results in damage to others.</p> <p>4. Where a party against whom a referee has rendered judgment makes a motion to set aside the judgment found and for a new trial, within the ten days limited by law for making such motions, the fact that there is no written notice to the parties on file from the referee of his findings and judgment in the clerk’s, office, will not avail such moving party as a ground for reversal upon appeal. The fact that he made the motion for new trial within the limited time being of itself evidence that he had notice of the filing of such judgment, and that the purpose of the statute to afford him an opportunity for making such motion has been accomplished.</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>Embezzlement by bankers—statutes construed—no limitation AS TO TIME FOR TAKING WRITS OF ERROR IN CRIMINAL CASES.</p> <p>1. The purpose of Section 2972 R. S., providing that writs of error incrimina! cases shall be issued and made returnable as the like-writs in civil cases, was not to adopt for criminal cases the-period of limitation prescribed by Section 1271 R. S., for the suing out of such writs in civil cases; the former section intended only to provide that the mode and manner in which such writs-are issued and made returnable shall be the same in both civil and criminal cases, as is provided fpr by Section 1270 R. S. There is not now and has never been any limitation of time within which writs of error to this court from judgments of the Circuit Courts can be sued out in criminal eases.</p> <p>2. Deposits by the customers or clients of a commercial bank therewith, are of two classes, viz: special or specific, and general. When the identical money or other thing deposited is to be restored, or Is given to the bank for some specified and particular purpose, as to pay a certain note or other indebtedness, or is received by the bank as a collecting agent, such collection to be-remitted, such deposits are special or specific, and the property in the deposit remains in the depositor, the bank in such cases, becomes the bailee, trustee or agent for the depositor. General deposits in a commercial bank comprise all moneys that are-simply deposited therewith on account of the depositor without being complicated by any other transaction than that of. ' the depositing and withdrawing of the moneys by the customer from time to time. Such a deposit transfers the ownership of the money to the bank, and the relationship with reference thereto as between the bank and the depositor is simply that of debtor and creditor at common law. The original and every subsequent general deposit is in strict legal effect a loan by the customer to the bank.</p> <p>'3. Section 27, p. 362 McClellan’s Digest, that inhibits the use, concealment, or wilful withholding by any banker of the money or property of another that may have been received by such banker on deposit, was not intended to annul the rules of law fixing the status between bankers and their customers, or to prohibit the use in his business by the banker, in a legitimate way, of moneys deposited generally with him, and for which he becomes the debtor of the depositor. When the banker uses the moneys deposited generally him by his customers, and for which he becomes the debtor of such patrons, in his legitimate business, his subsequent failure or inability to repay the amounts of such indebtedness, brought about by legitimate but injudicious speculations, loans or .investments, without other fault upon his part than want of good judgment, energy or enterprise, he can not be reached criminally under this statute. The purpose of this statute was not to interfere with the well-settled right on the part of the hanker to deal with his general deposits as though they were his own, but was intended to prohibit and prescribe punishment for the use, concealment or wilful withholding by the individual or private banker of any money or property that may have been deposited with him as a special or specific deposit under such circumstances as will continue the ownership of the deposit in the depositor, and that constitutes the banker the bailee, agent or trustee thereof for the depositor. *</p> <p>4. Under said Section 27 of the statute, tlie officer, agent, clerk or servant of any incorporated company, or the clerk, agent or servant of any private person or copartnership, or the officer of any incorporated bank, can not be reached for the wrongful use or conversion of the property either of his corporation or employer or of property that his corporation or employer holds in special deposit as bailee, trustee or agent; Sections 28 and 29, page 362 McClellan’s Digest being particularly applicable to them.</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>ALIMONY WITHOUT DIVORCE—JURISDICTION—RESIDENCE OF PARTIES.</p> <p>1. Where alimony is sought, without divorce, solely under the provisions of Section 1485 R. S., upon the ground of the existence in favor of the wife of some one or more of the legal causes for divorce, then the applicant must allege and prove that she has legally been a bona ficle resident and citizen of this State for two years continuously next prior to the filing of her application. The prerequisite two years’ residence here is jurisdictional, and no “cause for divorce,” such as our courts could recognize, can properly be said to exist in this State in favor of any applicant until she has bona fide resided here the requisite period of two years.</p> <p>2. Where the application for alimony without seeking divorce is predicated, under the provisions of Section 1486 R. S., upon the .ability of the husband to maintain the wife and Ms failure so to do, then it is not necessary for the wife to allege or prove 'that shelias resided here for two years; but in such case, in so far as the question of the jurisdiction of the court to entertain the cause is concerned, it is only necessary for her to show that either she or her husband has, in a proper and legitimate manner, become, at the time of the application, a boua fide resident and citizen .of this State. It is immaterial in the latter «cases how long such residence and citizenship. shall have continued here prior to the application. But it is not -within the spirit or intent of either of these provisions of the statute to-confer upon our courts the power to interfere in any respect with the marital status of citizens of other states who-may be here only on a temporary visit, either to pass upon such status or to enforce any of the rights and duties that depend thereon.</p> <p>3. Where an issue is raised by the pleadings, in a proceeding for alimony without divorce, as to the jurisdiction of the court, on the ground that neither the applicant wife nor the defendant-husband is a resident or citizen of this State, such jurisdictional question is no bar to the granting of temporary alimomy and suit money pendente lite, but in such case it is within the-sound judicial discretion of the court to award temporary alimony, pendente lite, until such jurisdictional issue, with others material to the proper determination of the controversy between the parties, can be finally heard and disposed of upon the proofs.</p>

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

<p>1. Where the owner of a tract of land makes a town plat of it-with spaces for roads or streets laid out thereon and conveys lots with reference to, ana bounded by such roads or streets, he thereby dedicates the said roads or streets to public use as such, and the grantees in the conveyances acquire the right to have said roads or strei ts kept open for the benefit of light and air, as well as passageways.</p> <p>2. Where a street, although laid off on a town plat in a certain course, is opened up by the owner on the ground in a course varying1 from the exact lines as indicated on the plat, and the street as opened up on the ground is thrown open to public use as a street before lots abutting oh the same are conveyed by the owner, the descriptions in deeds subsequently made and referring to the street as a boundary will relate to the street as opened up on the ground and used at the time such deeds are executed.</p>

STATEMENT. This is an original proceeding by mandamus instituted in 1890 against Comptroller Barnes, and by agreement the proceedings have been continued against his successor, W. D. Bloxham, who has approved the •official acts brought in question in the suit of his predecessor and adopted the answer filed by him in the •cause. The alternative writ alleges, substituting the name •of W. D. Bloxham for W. I).

<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>Writ of error to the Circuit Court for Hamilton, 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 iu the case are stated in the opinion of the court.</p>

Johns-county STATEMENT. A suit of ejectment was instituted on the 3rd day of January, 1876, in the Circuit Court for St. Johns countyjby James M. Gould, for the use of Jacob Yanderpool, against Henry and Wiley Jenkins to recover possession of a certain described lot of land situated in the city of St. Augustine in said county.

. STATEMENT. The bill was filed December 28th, 1886, by the appellee, and as amended, Joseph Rivas and Henry Koopman being defendants, shows that Charles Sum,mers, late of Duval county, died testate October 22nd*. 1862, and solvent, leaving a large estate, and naming-his widow as executrix, and that the will was admitted, to probate in Duval county, and she qualified as exec, utrix.

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

<p>1. Where the alleged trespass is one constituting a permanent- and necessary injury to the market value of plaintiff’s fee in the land trespassed on, the failure of the declaration to allege that the plaintiff was in possession of the land at the-time of the trespass does not render the declaration demurrable. J., T. & K. W. R. Go. v. Lockwood ante, p. 573. affirmed! as to right to recover in one action for the entire damage doDe by such an injury.</p> <p>2. The fact that damages for injury of a temporary nature are-claimed in the same count with damages for a permanent and necessary injury does not affect the immateriality of possession as to the right to recovery for the latter injury-</p> <p>3. The fact that there cannot be a recovery under one or more-counts is of itself immaterial when there is in the declaration a count which is sufficient to support the recovery.</p> <p>4. The fact that a count of a declaration may set up many elements that do not enter into the measure of damage? is ncA ground of demurrer. It may be cause, ui-der §1043 R. S., for reforming the count as calculated to embarrass the fair trial of the cause.</p> <p>5. Assignments of error relating to the permission and rejection of different questions propounded to witnesses, will not be considered where neither such assignments nor the briefs point where such questions are to be found in a record of one hundred and ninety-seven pages of testimony, nor they of themselves enable the court to pass upon the proposition presented.</p>

<p>1. Testimony tending to show that the occupation by defendant of that part ofthe street between the center thereof and abutting blocks of the plaintiff in ejectment was by consent of plaintiff, held sufficient to preclude any disturbance of the verdict, although there is evidence of a contrary import.</p> <p>'.2. An action of trespass by the owner of abutting lots or blocks, his title extending to the center of the street, to recover damages for the construction of a railroad on the street between the center thereof and such lots or blocks, has, to the extent of being inconsistent with the right to maintain a possessory action against the company, the effect to operate as a consent ■to the use of the street in operating the railroad in a proper ■manner or with due care.</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>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 the Circuit. Court for .Mariom county.</p> <p>Motion to strike out bill of exceptions.</p>

<p>In counties where there are Criminal Courts of Becord, justices of the peace have in criminal causes no trial jurisdiction as distinguished from mere power as committing magistrates to inquire into criminal charges with reference to the detention for trial, or bail, or discharge of the accused.</p>

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

STATEMENT. This is an action of ejectment instituted by the appellant against the appellees, James R. Taylor, Cofield B. King and his wife, Mary King, February 2nd, 1889, to recover possession of the S. W. J of the N. W. J of ■section 4, T. 4R. 11, N. and W., situated in Jackson •county, and containing about forty acres.

<p>A new trial granted where in an action on the common counts, with a plea of the general issue, the evidence fails to show that the person claimed by the plaintiff to have acted as agent for the defendant was authorized to bind the latter to pay for goods furnished to parties named in the bill of particulars.</p>

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

<p>Appeal from thfe Circuit Court for Escambia county.</p> <p>STATEMENT.</p> <p>Wittich filed a bill in .chancery against the bank and others, and obtained a final decree, from which an appeal was taken. The case made for Wittich in the bill of complaint,, filed on the 6th of February, 1882, is that he was assignee of a judgment obtained on the 23rd day of January, 1882, in the Circuit Court for Escambia county, by F. C. Brent against E. T. Hunt for the sum of $4,663.38, and that execution emanating from said judgment was placed in the hands of the sheriff of said county, and remained unsatisfied at the time of filing' the bill. Brent, Hunt, the bank and its officers were-made parties -defend ant. That the only property belonging to Hunt subject to levy and sale under judgment and execution was a quantity of salt then in warehouses in said county, and if said execution had been levied upon said salt and it offered for sale thereunder, purchasers would have been deterred from bidding therefor, because there was then of record in the record books of said county a mortgage given by said Hunt to the said bank. The mortgage was executed on the 31st day of August, 1881, to secure the sum of $26,408.72, and covers 33,400 sacks of salt, “stored in D. F. 'Sullivan’s warehouse on the wharf of said Sullivan, and 10,000 sacks of salt (then) stored in Wittich’swarehouse on the Central wharf, both of said wharves-being in the city of Pensacola, Escambia county, State of Florida.” It is further alleged that the salt referred to as being subject to levy and sale under' the said judgment and execution was part and what remained of the salt -covered by said mortgage, and that it was insufficient to satisfy said mortgage debt, and had said salt been offered for sale subject to Jim lien of the mortgage no purchaser could have been found to bid therefor; that before, at and after the time of the execution of said mortgage the said Hunt was and continued to be a merchant engaged iii the-business of buying and selling salt, and that the salt upon which said mortgage was executed constituted his stock'in trade, and it was permitted by the said bank to remain in his possession and under his control; that with the knowledge and consent of said bank Hunt continued for some time after the execution of the mortgage to deal with the said salt in his business, to sell large portions thereof from time to time to buyers, and to apply considerable portions of the proceeds of said sales to his own personal and private use; and at the time of the execution of said mortgage it was agreed between the said Hunt and said bank that the former should continue to deal with and sell said salt and apply to his own use portions of the proceeds of said sales. Upon the foregoing allegations it was alleged that the said mortgage was fraudulent in law and void as against the said execution lien. There are other allegations as to the incapacity of the bank to loan to Hunt the amount expressed in the mortgage, but as no point is presented on this phase of the case, no reference need be made to them.</p> <p>A special prayer of the bill is that Hunt and the bank be enjoined from selling or otherwise disposing of the residue of said salt; that a receiver be appointed to take possession of the same, and that so much thereof as may be necessary, be sold and the proceeds applied to the satisfaction of said execution, interest and costs.</p> <p>Respondents demurred to the bill on rule day íd April, 1882, and on the 10th day of July following, by leave of the court, complainant filed a supplemental bill. The new matter alleged in this bill is that after respondents had been served with process, appeared and demurred to the bill, but before any further proceedings were had in the cause the said bank, ‘ ‘having possession of the salt covered by the said mortgage. sold the same and realized from the sale thereof a sum greater than will suffice to satisfy the said judgment and execution with interest and costs.” The special prayer is that the bank be decreed to pay the complainant the amount of said judgment, interest and costs.</p> <p>Demurrers to the original and supplemental bills were overruled, and the bank and its cashier, W. A. S. Wheeler, answered. The answer denies all fraud in law or in fact, actual or constructive, as charged in the bill, and alleges that the salt described in the mortgage as being in Sullivan’s warehouse was the remnant of cargoes purchased and paid for by D. P. Sullivan, and stored in his warehouse, and that the understanding between Sullivan and Hunt in reference to the salt was that the latter should sell the same as he could find buyers, and pay over the proceeds of such sales to the former, to reimburse him' for the cost and charges on account of the salt, and the profits to belong to Hunt; that in May, 1881, the bank agreed to pay Sullivan for what then remained of the said salt,' and Hunt caused to be made and discounted at the bank the notes mentioned in the mortgage for the money paid by the bank to Sullivan, except for the note given for the purchase of the salt from Wittich, and that it was understood between the bank and Hunt that the salt should remain in the warehouse until purchasers therefor could be found, and that Hunt should make the sales as rapidly, as he could and pay over the proceeds to the bank in discharge of said notes. It is further alleged that the only purchase of salt by Hunt, of which respondents had any knowledge, was the salt described in the mortgage as being in Wittich’s'warehouse, and that to. aid in making this purchase the bank loaned Hunt ■$2,800, which, with the interest thereon and a balance •due by him to the bank and not included in the other notes, constituted the amount of the last note mentioned in the mortgage; that said loan was made with the understanding that Hunt should give a mortgage •on the salt in Sullivan’s warehouse, as well as that purchased from Wittich, and that Hunt was to make sales of both lots of salt as rapidly as the market would allow, and pay over the proceeds to the bank in •discharge of said mortgage notes; and that the object of the bank in aiding Hunt to make said purchase of salt was not to enable him to carry on business as a salt merchant, but the sole purpose was to enable him to command the salt market at Pensacola by buying out a sole competitor; and thereby enable him (H.) the .sooner to pay off his indebtedness to the bank, and to the extent and in the manner stated, and not otherwise, it is alleged, that Hunt was engaged in the business of buying and selling salt. ■ It is also alleged that the salt in Sullivan’s warehouse was never in the actual possession of Hunt, as said warehouse from the •.time the salt was stored therein until the last sack was ■sold and shipped with the consent of Sulliyan, who was president of the bank, was in his possession and the salt in complainant’s warehouse was under his control until he delivered it from time to time upon the order of Hunt as he effected sales thereof.</p> <p>The answrer denied that either before or after the execution of the mortgage the officers of the bank had ;any understanding or other agreement with Hunt in reference to the sale of said salt, except that he should sell the same as rapidly as he could and pay over the the proceeds of said sales to the bank in discharge of said notes, and if he appropriated the-proceeds of such sales above the expenses necessarily incident to the business to his own use, he did so without knowledge, concurrence or consent of the officers of the bank.</p> <p>It is also alleged that the foregoing arrangement continued until about the first of November, 1881, when the bank, for the purpose of exercising more control over the sales of said salt, agreed with Hunt that the sales should be made under the immediate direction of the bank, and that Hunt should use his best exertions to find purchasers, secure railroad transportation and to attend to the shipment of salt, for which he was to receive from the bank $150 per month, and that this arrangement continued until about the first of December, 1881, after which time the residue of the salt was sold by other agents for the best prices which could be obtained, and applied to the discharge of the said mortgage notes, leaving a balance due the bank on the '23rd day of May, 1882, of $4,646.26 which is still unpaid.</p> <p>The answer further alleges that when the bank advanced for Hunt the $2,300 to pay Wittich for the salt in his warehouse it did so upon the basis of one-third of the price, 68 cents, and upon the representation made by Wittich to Hunt, and by Hunt to the bank, •that said salt amounted to 10,000 sacks, and said representation was untrue, as there were but 8,253 sacks; that by said misrepresentation complainant Wittich obtained from the bank through Hunt $401.81 in cash, and an acceptance for $786.15 more than he was entitled to, and that he, Wittich, immediately after receiving said acceptance discounted it to Brent, wjio as a bona JicLe purchaser without notice, obtained judgment for the full amount of said note against Hunt, and after-wards assigned said judgment to complainant as alleged in the bill of complaint.</p> <p>The other facts necessary to be given will appear in the opinion.</p>

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

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