Volume 43 — Florida Reports

Statement. Appellants filed a bill in chancery against appellees and one Margaret C. Fairlie, for a partition of lot five (5), block thirty-three (33) old numbering, of the. city of Jacksonville, or lot five (5), block eighty-one (81) of the new numbering, said lot being situate at the southeast corner of the intersection of Laura and Monroe streets in said city.

Writ of Error to the Circuit Court for Duval County- Statement. The plaintiff in error, William H. Morris, by W. J. Morris his prochein ami, on the 24th day of January, 1895,instituted his action of trespass for personal injuries against the defendant in error, th-e Florida Central and Peninsular Railroad Company, in the Circuit Court of Duval County.

<p>1. A count ini a declaration alleging- that a third person executed his certain promissory note payable to the order of defendant; that defendant endorsed and delivered said note toa certain bank whereby she promised to pay the bank $100 for attorneys’fees in the event the note was not paid at maturity, and was-placed in the hands of an attorney for collection; that the note was rot paid at maturity and had been placed in the hands of an attorney for collection, does not show a liability for attorneys’ fees on the part of defendant to the bank or to one claiming through it.</p> <p>2. An ordinary endorsement of a note, does not carry with it an original obligation to pay attorneys’ fees for collecting the note, and without notice of its dishonor the endorser will not be liable'upon such endorsement for attorneys’ fees stipulated in the face of the note to be paid by the maker.</p> <p>3. To charge a party with notice of the dishonor of a bill or note because notice was given to another person as his agent, it must be shown that it was within the scope of the agent’s authority to receive such notice.</p> <p>4. Where the declaration in an action against án endorser alleges that due notice of the dishonor of the note sued upon was given defendant, and defendant’s plea puts this allegation in issue, the burden of proof is upon the plaintiff to prove notice.</p> <p>5. Depositors in savings banks organized under the laws of this State are creditors of the bank and have the same rights as depositors in other banks.</p> <p>6. Section 2193 Revised Statutes is directed against certain transactions taking place after the commission of an act of insolvency by banks, or in contemplation thereof, made with a view to the preference of one creditor to another. Where a party owes the bank a note and also has a credit to-his deposit account for deposits made while the bank is solvent and not in contemplation of its insolvency, and the bank officials and such party, after the bank becomes insolvent, enter the amount of the balance due such party on his deposit account as a credit on the note, the statute is not violated, and such credit may be pleaded as a payment on the note in an action brought to recover on such note by a receiver subsequently appointed.</p> <p>7. Where a party indebted to a bank, after it becomes insolvent purchases from certain depositors their deposits in the bank and the amounts of such deposits so purchased are by the bank officials entered as credits on the debt owing by such party, such payments are invalid, under section 2193 Revised Statutes and will not be binding on a receiver sxxbsequently appointed who sues to recover the debt owing by said party.</p> <p>9. If the manager of a savings bank is also agent for A and collects money for A which lie deposits in the bank, and subsequently. A draws upon his agent for the money and the bank recognizing its liability for the money so deposited, and in oxder to pay same, with the consent of the manager, procures B, a debtor to the bank, to assume liability to A for the draft, agreeing to credit the debt due the bank by B with the amount paid by B in settlement of the debt, and B legally assumes such liability with the consent of A and the bank, payable at a future date, such transaction is not prohibited by section 2193 Revised Statutes unless it was entered into or made in contemplation of the bank’s insolvency, or after the commission of an act of insolvency by it, with a view to prefer one creditor to another, and the fact that before the payment to A became due the bank became insolvent and a receiver was appointed, will not affect B’s right to claim as á payment upon his debt to the bank, in an action thereon by the receiver, the amount so paid by him to A in pursuance of the arrangement.</p>

<p>Habeas Corpus — Can not be Utilized for Purposes of Writ of Error — Local Option-r-Indictment.</p> <p>1. The actual existence of chapter 4746 as a law upon our statute books does not depend upon any extrinsic facts outside of the law itself. But whether it is specifically applicable to any particular county in the state, or whether its provisions can be violated in any such county, so as there to incur its penalties, depends upon the necessarily prerequisite fact whether or not an election has been held in such county resulting in a prohibition, under Article XIX of the constitution of the sale there of intoxicating liquors. An indictment or information under said chapter must necessarily allege, in order to- charge the offense, the fact of the holding of such an election, and that it resulted against the sale of such liquors in the particular locality named, as well as the fact of the prohibited sale. And, of course, it is necessary also to prove such allegations.</p> <p>2. Where a party has been convicted in the county court of a county, on an information filed, of the crime of illicit sales of liquor, in violation of chapter 4746, and such county court has jurisdiction to try such offence, and took writ of error from such judgment of conviction to the circuit court, where the same was affirmed, and after such affirmance sued' out a writ of habeas corpus from such circuit court, wherein he assails the regularity and validity of the prohibition election alleged to have been held in such county, and the circuit court on such habeas corpus proceedings remands him to the custody of the sheriff to undergo such sentence of conviction, on writ of error to this court from such judgment in said habeas corpus proceeding the same will be affirmed on the ground that the matters of law and fact affecting the regularity and validity of such prohibition election are necessarily involved as issues in the trial of such offence, and are presumed to have been therein properly adjudicated, and cannot be again reinvestigated by means of the writ of habeas corpus. The writ of habeas corpus cannot be utilized to subserve the office of a writ of error.</p> <p>3. Chapter 4746 Laws, Reid to be constitutional.</p>

<p>Appellate Practice — Parties Plaintiff in Error in Replevin.</p> <p>Where,in a suit in replevin, the defendant retains, the property by giving a forthcoming bond, with sureties, under section il719, Revised Statutes, and at the trial judgment is recovered against the defendant for the specific property, and against him and the sureties on his bond for the adjudged value of such property, such defendant can alone, without joining such sureties, sue out his writ of error from such judgment to review the proceedings of the trial of such replevin suit that resulted in the verdict 'finding that he wrongfully took or detained the property, and its value and the fact that before the writ of error issued the plaintiffs in replevin had elected, under the statute, to take execution against said defendant and his sureties for the adjudged value of the property, does not affect tbe defendant’s right to such separate writ of error to review the rulings in the trial to the extent indicated.</p>

<p>Appellate Practice — In Absence of Basis of Pact to Support Assignments of Error — Writ of Error Dismissed.</p> <p>Where by an amplification of the transcript of the record, made by consent, the basis of fact is eliminated therefrom upon which the assignments of error are predicated, thus leaving nothing in the record to support any assignments of error made, the writ of error will be dismissed.</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>Appeal from the Circuit Court for Polk 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 Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

‘ Statement. Appellant filed a bill in chanery against appellees alleging that' on the 26th day of March, 1890, William R. Fitts was owner and in possession of lots B, C, and F, of Block 10, of Rich's Addition to the city of DeLand, Volusia county, and also the north half of the south half of 'the southeast quarter of the northwest quarter of the southeast quarter of section 8, township 17 south, range 30 east containing two and one-half acres; that on said date complainant…

Writ of error to the Circuit Court for Hillsborough County. Statement.

<p>1. Under sections 1279 and 1462 Revised Statutes the Supreme Court is authorized and required to entertain and decide motions to quash proceedings in error or by appeal, based upon the ground that such proceedings are taken merely for delay, notwithstanding the case has not been reached for final hearing upon regular call of the docket. (MABRY, J., dissenting.)</p> <p>2. It is not the purpose of sections 1279 and 1462 Revised Statutes to require the court upon motions to quash, based upon the ground that the proceedings are taken merely for delay, to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error, but its purpose is to enable the court to quash such proceedings where the assignments of error are so plainly and palpably without merit as to lead to the conclusion that the proceedings were taken merely for delay. Tlie absence of error in the proceedings must be apparent upon a short and cursory examination of the record, requiring no investigation of authorities nor argument to show the untenableness of the assignments of error. If there are doubtful or debatable questions of law or fact, raised by the assignments of error, the court will not investigate or decide them upon motions of this character, but will hold the case for hearing in its regular order upon the docket. (Mabry, J., dissenting.)</p> <p>3. Upon motions to quash proceedings in error or by appeal upon the ground that they are taken merely for delay, the party moving will not be heard either orally or by brief, for the reason that the assignments of error must on an examination of the record be so wholly devoid of merit as to require no argument on his part to show their untenableness. The party opposing the motion will, however, be heard orally or by brief in opposition to the motion, and if upon examination of the record and consideration of the argument or brief of the party opposing the motion the court •finds that there is properly presented any question of law or fact as to the proper decision whereof the court enter r tains a doubt, the court will not enter into a minute examination of that question and the authorities bearing thereon, but will leave the cause to its proper place on the docket for hearing in its regular order.</p> <p>4. Husband and wife joined in the execution of a mortgage in due form upon the wife’s separate statutory real estate, and the wife thereupon executed a written acknowledgment attached to said mortgage wnereby she acknowledged that she made herself a party to and executed said mortgage for the purpose of conveying her separate estate and interest in and to the lands in said mortgage described and granted, and ihat she did the same freely and voluntarily, without compulsion, constraint, apprehension or fear from her said husband. The acknowledgement purports on its face to have been made and executed by the wife separate and apart from the husband and in the presence of a certain named officer authorized to take acknowledgements of married women. The officer also attached to said acknowledgement his certificate under seal to the effect that the wife, who he certifies was well known to him as the person who executed the mortgage and as the wife of the husband, personally appeared before him, and being at the time separate and apart from the husband, she did then and there make and execute the acknowledgement before mentioned and that her name was to said acknowledgement with her own hand subscribed and her seal affixed in his presence. Pleas interposed by the wife to a bill filed to foreclose said mortgage, to the effect that the mortgage is void as to her because the certificate of the officer does not show that she executed the same freely and voluntarily and without fear or compulsion of her husband, as the statute in such cases required, were properly overruled, and it requires no argument to show the untenablesness of an assignment of error based on such ruling.</p> <p>5. The law is settled in this State that when a married woman has executed and acknowledged a mortgage upon her separate statutory real estate and appeared before an officer authorized to take her acknowledgement and the officer certifies a full compliance with the statute relating to her acknowledgment, his certificate, except fraud or duress be shown, must be held conclusive of the facts it aserts. In proceedings to foreclose such mortgage, exceptions to those portions of an answer filed by the married woman alleging that she was not separate and apart from her husband when she made her acknowledegment, but not charging fraud or duress, are properly sustained, and it requires no argument to show the untenableness of an assignment of error based on such ruling.</p> <p>O. In proceedings to foreclose a mortgage upon a married woman’s separate statutory real estate where the mortgage and acknowledgments are made parts of the bill to foreclose, exceptions to those portions of the answer which present merely conclusions of the pleader as to alleged defects in the certificate of acknowledgement, which upon a bare inspection of the' mortgage and acknowledgment the exception of which are not denied, appear to be erroneous, are properly sustained, and it requires no argument to show the untenableness of an assignment of error based on such ruling.</p> <p>7. An amended answer which presents the identical matters contained in previous answers and pleas, which matters had been properly held in proceedings upon such previous answers and pleas to constitute no defence, and which matters so alleged in the amended answer present only conclusions of the pleader as to alleged defects in a certificate of acknowledgment of a mortgage made part of the bill of complaint,which conclusions upon a bare inspection of the certificate of acknowledgment the execution of which is not denied, appear to be erroneous, is properly stricken on motion, and it requires no argument to show the untenableness of an assignment of error based upon such ruling.</p>

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

Writ of Error to the Circuit Court for Duval County. Statement. The plaintiff in error, Farrell, sued the defendant in error, Solary, in assumpsit in the Circuit Court of Duval county, upon a promisory note as follows: $225.00. Jacksonville, Fla., June 16th, 1893.

Writ of Error to the* Circuit Court for Clay County. Statement.

<p>Appeal from the Circuit Court for Bradford County.</p>

<p>Motion to strike portions of transcript and to quash or dismiss the writ of error.</p>

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

<p>Appellate Practice — Failure to Make Assignments of Error. Where the abstract of the record contains no assignments of error, the appeal will be dismissed.</p>

<p>Appellate Practice — Consideration of Case on Abstract of Record.</p> <p>"Where a cause is submitted to the appellate court upon abstracts of the record as prescribed by the rules of practice for the government of such court, and no exceptions to such abstracts are interposed, they are thereby admitted to be true and correct; and under the rules, the appellate court is ’•equired in such a case, to consider and dispose of the cause upon such abstracts al one without reference to the transcript of the record; and if no erior is made to appear by such abstracts the judgment of the court below will be affirmed.</p>

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

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

<p>1. One who wilfully and maliciously burns the dwelling7house of another is guilty of a penal offence under section 2426 Revised Statutes.</p> <p>2. Upon the trial of an information found under section 2426 Revised Statutes, charging the accused with wilfully and Inaliciously burning the dwelling-house of a person therein named, it is error for. the'court to charge that the jury should convict the accused if it has been proven to their satisfaction beyond a reasonable doubt that the accused within two years prior to the filing of the information, in the county alleged, wilfully and maliciously set fire to and burned a structure; that said structure was a dwelling-house, and that said dwelling-house was the property of the person alleged in the information. In such a case it is not sufficient to prove that the party alleged in the indictment owned the building, and that the building was the dwelling-house of some other person, but it must be shown that the building is the dwelling-house or residence of the party alleged.</p> <p>3. Evidence examined and found insufficient to support the ver- , diet.</p>

<p>An information alleging that J. R. in Duval county, Florida, on September 11, 1899, “in and upon one O. B. with a certain deadly weapon, to-wit: a gun known as a musket, which he the said ,T. R. then and there held in his hands an assault did make, and him the said O. B. did then and there beat, bruise, wound and illtreat; he the said J. R. then and there having a premeditated design and intent then and there unlawfully to kill and murder him the said O. B., wherefore, by virtue of the statute in such cases made and provided, the said J. R. is deemed to have committed the crime of assault with intent to murder, contrary,” &e., does not charge an offence under section 2403 Revised Statutes.</p>

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

<p>Criminal law — Grand, juror as trial juror — Waiving challenge— Section 2853 Revised Statutes construed — Sealing charges.</p> <p>]. The inhibition placed by section 2851 Revised Statutes upon the serving of a grand juror as a member of the trial jury to try an indictment found by him as such grand juror is clearly and expressly made conditional upon a challenge being interposed by the defendant for that cause. The effect of the statute is not absolutely to disqualify a grand juror from serving on a trial jury to try indictments found by such grand juror, but makes it only a ground of challenge for cause, which challenge the defendant may waive or not as he sees proper. By accepting the juror without exercising this right of challenge given him by the statute the defendant waives such right, and it is too late after verdict to claim the benefit of it. It is the right and duty of defendants in criminal trials to' discover on the voir dire examination of talesmen offered as trial jurors disqualifications in and grounds of challenge for cause to, such talesmen, and if they fail so to do, they cannot, after verdict, avail themselves of their ignorance of the existence of such grounds of challenge.</p> <p>2. Since the adoption of our Revised Statutes in 1892, the formality of sealing charges by the trial judge is no longer required.</p>

<p>The purpose of section 2403 Revised Statutes is to punish assaults made with intent to commit a substantive crime of felony and this intent is the gist of the offence of assaulting another with the design to commit the felony, and tie indictment or information should charge the intent with which the assault was made with that certainty required as to other material allegations. A mere statement of such intent' in the conclusion of the indictment or information, by way of legal deduction or inference from facts previously alleged will not be sufficient.</p>

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

<p>1. By tlie common law an accused had. the right to be tried in the county in which the offence was alleged to have been committed, where the witnesses were supposed to be accessible. and whoi-“ lie might have the bene.fit of a good character, if lie had established one there, but if an impartial trial could not be. had In such county it was the practice to change the venue to some other county where such trial could be obtained. The right of tidal in the county where the offence is alleged to have, been committed, when an impartial jury can there he had, is secured to the accused by section II, Declaration of Rights, Constitution of 1885, but it is not the design of this provision to force a tidal in a county where an impartial jury cannot be obtained, as to do so would defeat the greater and more i mportant right of a speedy trial by an impartial jury.</p> <p>2. The statutes in force in this State, in reference to change of venue in criminal cases without the consent of the accused (sections 2928 and 2929, Revised Statutes, and chapter 4394, laws of 1895), authorize the eourt to direct a change of venue when an impartial jury cannot be secured in the county where the offence is alleged to have been committed, arid limiting their meaning to authorize the change without the consent of the accused when it is imposible to secure an impartial jury in the county where the offence was committed, they are constitutional.</p> <p>3. An accused may, under statutes in this State, be convicted as an accessory before the fact to murder in the second degree.</p>

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

<p>Criminal law — Forgery—Indictment—Acting state attorney— Privately retained prosecutor may act — Capacity for harm of paper forged — Appellate practice — Excepting en masse to several charges.</p> <p>1. An allegation in an indictment for forgery to the effect that the defendant: '“did falsely make, forge and counterfeit a certain false, forged and counterfeit writing,” etc., should not, on a motion to quash, be construed to mean that the defend! ant falsely made and forged an already existent document that was itself a false and forged instrument, but it should receive the more liberal construction as meaning that the defendant did falsely make and forge the instrument as his own original creation, and that when so made by him it was a false, forged and counterfeit writing. The form of the allegation quoted is open to the criticism of being tautologus but does not for that reason vitiate the indictment.</p> <p>2. A mere brutum fulmén, on its face utterly valueless and of no binding force or efficacy for any purpose of harm, liability or injury to anyone, cannot be the subject of forgery. In order to be the subject of forgery the instrument forged must be upon its face, were it genuine, of some apparent legal efficacy for injury to another, or, as Mr. Wharton expresses it: “Should be one which would expose another to legal process.”</p> <p>3. Though the instrument forged purports upon its face to grant an estate in land for a term of more than two years, but is invalid and ineffectual as a lease for such term because it is witnessed by only one witness when the statute requires two to give it effectiveness as such, yet if the instrument, were it genuine, could be specifically enforced in equity as a contract for a lease, or if it was effective as a license to make entry upon the land described therein, so as to shield parties entering under it from the charge of trespass, it'is not an absolute nullity, but is effective for injury to. another, and is, therefore, the subject of forgery.</p> <p>4. Section 1354 Revised Statutes, authorizing circuit judges to appoint a prosecuting attorney from among the members of the bar, whenever the official state attorney is absent from any regular or special term of court, etc., and requiring such appointee to be swmrn faithfully to discharge the duties of state attorney, does not conflict with section 27 of article 3 of the constitution of 1885, which requires that the legislature shall provide for the election by the people or appointment by the governor of all state and county offices not otherwise provided for by the constitution. Such statute does not contemplate the filing of a vacancy in the office, but the exigency intended to be met by it presupposes that the office is already filled by an incumbent officer, or will be filled in the constitutional way- and it undertakes simply to supply a competent person temporarily to perform the official duties of that office. Even in the absence of such a statute, trial courts with criminal jurisdiction have an inherent power, in the exercise of such jurisdiction, to .appoint some suitable person to represent the interests of the istate temporarily during thé absence or inability to act of the officer whose official duty it is to so represent the state’s interests.</p> <p>5. At the common law to be the privately retained counsel for the prosecuting private individual was not recognized as a - disqualification of such attorney for conducting the prosecution on behalf of the crown. Section 1354 Revised Statutes, providing for the appointment by circuit judges temporary acting state attorneys does not prescribe any other qualification or disqualification for such tempor,ary prosecutor than that he shall be a member of the bar; and if he has been duly sworn as such acting state attorney, as provided by the statute, the fact that he may have been privately retained by the prosecuting witnesses to prosecute the case does not render him ineligible to represent the interests of the state in such prosecution in the capacity of acting state attorney, nor will it vitiate an indictment signed by him as such state attorney.</p> <p>6. Under an indictment charging simply forgery, no conviction for utterance of the forged document can be had.</p> <p>7. Where refusals to give two or more separate instructions containing distract propositions of law are embraced in one general exception, the exception thus taken is not available before the appellate court if any one of such charges was properly refused.</p>

<p>„ Writ of Error to Circuit Court, Volusia county, John D. Broome, Judge.</p>

<p>Appeal from Circuit Court, Duval county; John F. White, Judge.</p>

<p>Writ of error to Circuit Court, Putnam county; William A. Hocker, Judge.</p>

<p>Appeal from Circuit Court, Alachua county; William A. Hocker, Judge.</p>

<p>Writ of error to Circuit Court, Duval county; C M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of error to Circuit Court, Duval county; C. M. Cooper, Referee.</p>

<p>Writ of Error to the Circuit Court for St. John’s County.</p> <p>The facts of the case are stated in the opinion of the . Court.</p>

<p>Where a writ of error was issued in August, 1&96, and made returnable to the January term, 1897, of the appellate court, and no scire facias ad audiendum errores nas been issued and served on the defendants in error, who have in nowise appeared in the apellate court, such cause will be dismissed.</p>

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

<p>Appellate Practice — Corrected abstracts will be ordered where briefs of plaintiff in error admit abstracts of record wrongfully made error appear.</p> <p>1. Appellate courts will sometimes sua mota order certiorari or other proper proceeding for tl.e correction of records for the purpose of informing its conscience in order to affirm a judgment, though never to revere one or make erroi.</p> <p>2. Where an abstract of the record, not excepted to, is so prepared as to make it appear that there was no evidence to support the verdict found, but counsel for the plaintiff in error admit in their briefs that there was some testimony at the trial tending to sustain such verdict, thereby admitting in effect that such abstracts of record prepared and filed by him fail to state the case fairly, fully and correctly,, and that by such failure error is wrongfully made to appear, where otherwise none might exist, the appellate court, where it is evident that such omissions in the abstracts were not intentional, will exercise its discretion, where the demands of Justice require it, and will call, sua motu, for either true and correct abstracts of the record, or in their stead, for additional copies, under the rules, of the transcript of the record. But in such a case if there is any evidence tending to show that such omissions in the abstracts were intentionally made, the cause would be dismissed. .(¿MABRY, J., dissenting.)</p>

Statement. On April 1st, 1895, the appellees. The Tallahassee Hotel Company, a corporation, Sarah S. Lewis, George Lewis, Edward Lewis and William C. Lewis, filed their bill of complaint in the Circuit Co-urc of Leon county against the appellant, William A. Rawls, alleging, among other things, that during or about the month of January, 1887, “with the consent of the legal authorities of the city of Tallahassee,” they “constructed and laid a sewer pipe extending from the Leon…

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

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

<p>Constitutional law. — Appropriations of public money must be made-by law. — An enacting clause is a prescribed requisite of every law. — Joint resolution.</p> <p>An appropriation of public money cannot be constitutionally made by a joint resolution adopted by both bouses of.tbe legislature that lacks tbe constitutionally prescribed requisite to make it a Uno of an enacting clause.</p>

<p>Appellate Practice — Abstracts of record must contain assignments of error.</p> <p>Where a cause is submitted upon abstracts of the record without any exceptions thereto, the appellate court will consider the same under its rules upon such abstracts alone without- reference to the transcript of record, and where such abstracts do not contain any assignment of errors the cause will be dismissed.</p>

Writ of Error to the Ciruit Court fo Orange County. *Statement. William E. Willett, as plaintiff, brought suit in the Circuit Court of Orange county, ¡ Florida, against the Savannah, Florida and Western Railway Company.

Statement. On January 23rd, 1895, the appellant filed a bill in the Circuit Court of Calhoun county against the appellees, alleging that'it was then the owner in fee and in possession of certain lands'in Calhoun county therein described. The bill further alleged that in the Fall and Winter of 1894 appellees, without authority, entered upon said lands and committed ’trespasses thereon by the cutting- of trees and the removal of logs therefrom.

<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>

Writ of efror to the Circuit Court for Duval County. Statement.

John’s County. Statement. On June 4th, 1895, appellants, Joseph L. Friedman and John W. Keiler, partners as Friedman, Keiler & Co., fried their bill of complaint in the Circuit Court of St. John’s county against appellees, Herman Rehm and Robert W.' Simms, alleging that appellants recovered a judgment in said court on May 13th, 1895, against Rehm for $212 damages and $4 costs, and on the same day another judgment against Rehm and one Sullius, a former co-partner of Rehm, for…

<p>1. Assignments of error based upon alleged rulings not shown by the abstracts to have been made, or not shown by the abstract to have been excepted to where an exception is necessary, or based upon instructions not set forth in the abstract, or if set forth, not accompanied by a statement of the substance of the testimony upon which they were based, will not be considered by an appellate court, where the cause is submitted upon abstracts of the record not excepted to.</p> <p>2. Trial courts have discretionary power under section 1042 Revised Statutes to permit amendments of the pleadings by the withdrawal of a plea by a defendant during the trial, and unless the appellate court can see that the discretion was abused, and that the opposite party might have been injured by such an amendment, the ruling permitting the amendment will not be disturbed on writ of error.</p> <p>3. Under section 1042 Revised Statutes trial courts have discretionary power to permit amendments of the pleadings after verdict in furtherance of justice, but this power should be more cautiously exercised than in cases where the application to amend is made before the verdict, and where such amendment after verdict makes a new issue which has not been submitted by the parties to the jury on trial, a new trial ought ordinarily to be granted, but where it clearly appears to the appellate court that the opposite party was not injured by such amendment, the ruling granting- it will not be disturbed, though the trial court refused to grant a new trial.</p> <p>4. A plaintiff in ejectment must recover upon the strength of his own title and not upon the weakness of his adversary’s He cannot recover even as against one without title, unless he proves title or prior possession.</p> <p>5. Plaintiff sued defendant, a railroad company, in ejectment for the whole of certain-blocks of land containing- nearly twenty-five acres. Defendant pleaded, first, not guilty; second, that it was not in possession of any of the lands sued for. During the trial the plea denying possession was by leave of court over plaintiff’s objections withdrawn. Plaintiff failed to show title to or prior possession of any of the land sued for, and defendant produced evidence that it claimed and was in possession of only a small strip of land across the lots as a right of way, covered by its railway tracks and ditches as laid. The jury rendered a verdict for defendant. After verdict, but before judgment, defendant was permitted, over plaintiff’s objections to file an amended plea denying that it was in possession of the whole of the lands sued for, but only of so much as was covered by its railway tracks and ditches as laid, and specially disclaiming any other possession or claim right or title to the lands sued for, but as to that portion occupied by its trades and ditches alleging that it claimed title exclusive of any other right. Thereupon judgment was entered for defendant: Held, that the plaintiff under the circumstances was not injured by the rulings permitting the withdrawal of the plea denying possession, and the. filing of the amended plea after verdict; that the plea filed after verdict in effect 'withdrew so much of the plea of not guilty as applied to the lands sued for other than the strip covered by the defendant’s railway tracks and ditches as laid; that by filing this plea the defendant voluntarily relinquished its right to a.judgment that would operate as an estoppel on the question of title as to all portions of the lots sued for except as stated; that the judgment entered must be construed with reference to the issues made by the amended pleadings; that the pleadings as amended put in issue the real controversy between the parties and that under the circumstances stated the filing of the amended plea after verdict did not require the granting of a new trial as plaintiff was not only not injured but actually benefitted by such amendment.</p>

The judgment of the Circuit Court of affirmed. Writ of error to the Circuit Court for Hillsborough County. The facts of the case are stated in the opinion of the court.

<p>Appeal from the Circuit Court for Hillsborough Count}'-. _</p>

Writ of error to the Circuit Court for Hillsborough County. Statement.

<p>1. On an appeal from an order overruling a general demurrer to a.bill for want of equity, neither the question of multifariousness or misjoinder of parties in the bill can be raised in the appellate court for the first time, where such questions were not presented below, either by an express ground of the demurrer, or ore terms, as could have properly been done, at the argument of said demurrer.</p> <p>2; Under section 1732 Revised Statutes a book-keeper of a corporation conducting a saw-mill business, and another employee whose duty it 'was to keep a record of the time of the other employees and to attend to a commissary run in connection with such mill, and another employee who was under contract to haul logs to the mill at the wages of five dollars per- day, using his own team in so doing, are all entitled to a lien for tL-eir wages on the lumber produced by such mill</p> <p>3. IJnder section 1742 Revised Statutes parties who are given liens on personal property, whether in possession or not, are entitled to enforce such liens as against purchasers and creditors wit ft, notice of such liens. Creditors without notice, within the meaning of said section, can only consist of creditors who' liave, without notice of such liens, acquired liens by judgment or otherwise, and can not apply to general creditors without liens.</p> <p>4. Where a corporation conducting a saw-mill business has eight miles of railroad track laid with iron rails, that is used exclusively in connection with such mill business as an appurtenant to such mill, and that is not permanently located, but subject to removal from one locality to another as the timber hauled thereon becomes exhausted, the employees of such a corporation have a lien for their wages under section 1732 Revised Statutes upon such iron rails.</p> <p>5. General powers conferred upon an agent by a power of attorney must be construed with reference to the special powers in connection with which the general authority is given; and where there is a special power given therein as to the particular feature of the business authorized to be conducted, and an express limitaion is therein put upon the authority .of the agent, such limitation will control.</p> <p>O. A general power as managing agent of a corporation in the conduct of its business, does not clothe such agent with authority to mortgage the property of his principal.</p> <p>7. A mortgage executed by an agent of a corporation, of its property may be ratified by such corporation either expressly or, impliedly, by its acts, but no such ratification can be implied in the" absence of knowledge of the mortgage by the corporation.</p> <p>8. A bill in equity brought to enforce laborers’ liens aggregating less than $1,000, that does not show the existence of any other liens upon the property, except those held by other parties made defendants to the bill, whose liens are alleged to be subordinate to those of complainants, and that does not allege inadequacy of security for the liens of complainants, and that does not allege insolvency of the debtor, and that fails to allege any misconduct whatever on the part of the debtor with regard to its property, does not authorize the appointment of a receiver to take charge of the property of such debtor consisting of a saw-mill and its business, stock on hand, eight mile of railroad track and its equipments and 00,000 aerees of land.</p>

Writ of Error to the Circuit Court for Marion County. Statement. Alternative writ of mandamus was. issued from the court below to the plaintiffs in error as members of the city council of Ocala directing them to permit the relator, Grothe, to assume the functions and powers and enter upon the duties of alderman at large of said city, or show cause to the contrary.

<p>Writ of Error to the Circuit Court for Orange County.</p>

<p>1. An assignment of error, not argued in the appellate court, is considered as abandoned.</p> <p>2. when the plaintiff admits a demurrer to his declaration on the ground of misjoinder of parties, and moves the court to be allowed to strike out the name of the party improperly joined and discontinue the case as to such party, the court does not err in granting such motion, and in permitting tile plaintiff to amend the declaration' in accordance therewith.</p> <p>3. When a declaration alleged the making of a note in which it was provided that in the event the note was not paid at maturity, it might be placed in the hands of an attorney for collection, and in that event the makers and endorsers should pay an additional sum for attorneys’ fees and further that one B. T. and the defendants-guaranteed the payment of the note, and the declaration does not show any qualification or limitation of the • contract of guaranty it is not obnoxious to demurrer 011 the ground that it “charges liability on the part of all the defendants for attorneys’ fees, when the same shows 011 its face mat only the maker of said note is liable therefor, at all.”</p> <p>4. A contract of guaranty may be co-extensive with the contract, the performance of which, is guaranteed.</p> <p>■5. When the declaration shows that the real relation existing between the plaintiff and another person, to whom a note sued on is executed is that of principal and aycnt, and not that of trustee and cestui, que, trust, though the note is payable to the other‘person as trustee, under section 981 Revised Statutes authorizing suits by the real party in interest, the plaintiff may maintain the suit in her own name, though the note be not endorsed by the payee.</p> <p>O. To a declaration charging the defendants with the guaranty of the payment of a note, non assumpsit is a proper plea.</p> <p>7. Under section 1004 Revised Statutes, and Rule 04 of the Rules of the Circuit Court in common law actions, to a declaration charging the defendants with the guaranty of the payment of a note, a plea alleging that the defendants did not guarantee the payment of the note as alleged in the declaration is a permissible plea; .and although such a plea is embraced in the plea of non assumpsit also filed, if not equivalent to it, yet, it is not for that reason subject -o demurrer, though it might have been stricken by the court as tending to embarrass a fair trial of tlie action. Tlie ruling in Pensacola Gas Co. v. Pebley, 25 Fla., 381; 5 South. Rep., 593, that a special plea tendering an issue covered by the plea of not guilty is demurrable, is not in conformity with subsequent decisions, and is not approved.</p> <p>8. A plea which does not traverse any material fact alleged in the declaration, in terms thereof, but raises a question of law whether upon the facts stated in the declaration, and which the plea does not specifically deny, and therefore admits, the defendants can be held liable, is demurrable.</p>

Statement. The appellees herein, James A. Greig and others, filed their bill of'complaint in the Circuit Court of Osceola county against the appellant, the First National Bank of Orlando, wherein it was averred that Greig in his own right, and as.trustee for his co-appellees, was the owner of certain lands in said county therein described, and in possession thereof.

Statement. The bill of complaint of Rosanna S. Lucas, filed in the Circuit Court for Duval county against Leonidas E. Wade, F. Tuly Wade, his wife, Leonidas E. Wade, Jr., Mary I. Wade, the last two being infants, and Leonidas E. Wade, trustee for said infants, alleged that on the seventh day of August, 1890, the defendant L. E. Wade agreed to purchase from her, at the price of two thousand dollars, the north half of lot three (3) in block one hundred and one (toi) in the…

<p>Writ of Error to the Circuit Court for Orange County.</p>

<p>Appeal from the Circuit Court for Marion County.</p>

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

<p>Original suit brotight by attachment.</p>

<p>Appellate practice — Abstracts of record must contain assignments of error.</p> <p>Where a cause is submitted upon abstracts of the record without any exceptions thereto, the appellate court will consider the same under its rules upon such abstracts alone, without reference to the transcript of record, and where such abstracts do not contain any assignment of errors the cause will be dismissed.</p>

<p>Appellate practice — Writ of error, how made returnable.</p> <p>A writ of error issued on a day within a pending term of the appellate court and made returnable to a day within the same term, violates the law and is void, and the case thereby attempted to be brought to the appellate court will be stricken from its dockets.</p>

<p>1. The laws of this State prescribing the qualifications of jurors, and regulating the manner of selecting, summoning and empanelling them do not disqualify any person on account of race, color or previous condition of servitude, nor do such laws authorize any discrimination on this account by those whose duty it is to enforce the regulations prescribed for selecting, summoning and empanelling jurors.</p> <p>2. Defendants in criminal cases have no right to challenge an array of petit jurors whose term of service will expire before such defendants are to be placed upon trial.</p> <p>3. A motion to quash the panel of grand jurors because of alleged discrimination against persons of color by officers selecting the list from which such grand jury is drawn does, not lie in behalf of one who has been indicted by such grand jurors; the proper practice being to interpose a plea in abatement of the indictment because of such discrimination.</p> <p>4. All objections to the competency of and to irregularities in-selecting, drawing and empanelling grand jurors, not appearing of record, must be taken advantage of by plea in-abatement of the indictment, and not by motion to quash it.</p> <p>5. If a motion to quash the indictment be treated as properly-raising the objection that persons of color were discriminated . against by the officers selecting the list from which the grand' jury finding it was drawn, the motion to be available must be supported by proof of such discrimination, where such fact does not appear of record, even though such motion is verified by the affidavit of the defendants, unless there be an agreement of the State or an order of the court to the effect that the verified motion be considered as evidence.</p> <p>6. An affidavit to the effect that affiant has read the contents-of a certain motion to quash an indictment alleging discrimination against persons of color by officers selecting the list-from which the grand jury presenting the indictment was-drawn, that the matters and things set up in the motion is-to Ms best knowledge, information and belief true as therein set forth, is not proof of the facts set up in the motion. The affidavit asserts no knowledge, information or belief upon the subject matter of the motion, nor does it appear therefrom that the affiant had any knowledge, information or belief whatever upon the subject.</p> <p>T. Where officers charged with summoning venires for petit jurors from the body of the county discriminate against persons of color, solely on account of their color, in executing the venire, a colored person upon trial, charged with crime, may challenge the array of such petit jurors upon the ground stated when it is proposed to select jurors to try Mm from such special venire, but where the fact of such discrimination does not appear of record the challenge must be sustained by proof, otherwise it is properly overruled.</p>

<p>Writ of Error to 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 Hamilton 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 of the case are stated in the opinion of the Court.</p>

<p>1. The amendment of section 2463 Revised Statutes, by Chapter 4530 laws of 1897, did not deprive the State under Article III, section 32 constitution of 1885, of the right to prosecute for offences committed against the section as it originally existed before amendment, though the indictment should not be • found until thereafter.</p> <p>2. A motion to quash an indictment consisting of more than one count should be denied if-either count be good.</p> <p>3. A count in an indictment found under section 2463 Revised ' Statutes, before its amendment in 1897, Chapter 4530, alleged that the accused on a specified date, in a named county in this State, being an officer of the city of Gainesville, a municipal corporation under the laws of Florida, to-wit: clerk and treasurer, whose duty then and there required him to receive public moneys belonging to said city, did by virtue of bis said office as clerk and treasurer and while acting as such, receive and take into his possession certain moneys, the property of the said city of Gainesville, at divers times between July 7th, 1896, and April 21st, 1897, to-wit: the sum of two thousand two hundred twenty-six dollars and fourteen cents, a more particular description of which is to the grand jurors unknown, for and in the name and on account of the city of Gainesville aforesaid, and the said money so as aforesaid coming into his possession by virtue of his said office as clerk and treasurer, he then and there, on the twenty-first day of April, 0.897, and in said county, fraudulently and wilfully withheld, to-wit: the sum. of l$2,226.14, a more particular description is to the grand jury unknown, so as to prove a defaulter to the city' of Gainesville aforesaid, against the peace and dignity of the State of Florida, and contrary to the statute in such cases made and provided. Held, that the-count was good under section 2463 Revised Statutes before it was amended in 1897, and that the offence thereby created is distinguishable as to the manner of its allegation from other offenses of embezzlement considered in the cases of Grant v. State, 35 Fla., 581, 17 South. Rep. 225, and Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938.</p> <p>4. Where the propriety of a charge to the jury depends upon a certain state of facts, the appellate court can not consider the correctness of the charge in the absence of the testimony; but when the charge is radically wrong under any state of facts the court may declare it error.</p> <p>5. The following charge held not to be erroneous, viz: “the jury are admonished that there should be no mistrial in this case if it is possible for the jury to agree upon a verdict, if they can do so without violating their conscientious convictions based upon the evidence. This case has taken up a whole week of this term, and has necessarily been costly to the State and county, and has forced the postponement of other important cases. "The jury should therefore lay aside pride of .opinion and judgment, examine any differences of opinion there may be among them in a spirit of fairness and candor, reason together and talk over such differences and harmonize them if this be possible so that this case may be disposed of.”</p>

<p>1. Objections to the admissibility of evidence must, as a general rule, be made when ft is offered, or its admissibility can not be assigned as error.</p> <p>2. - In a criminal prosecution witnesses introduced on behalf of the State objected to answering certain questions propounded to them by the State on the ground that their answers would criminate them, but were required by the court to answer Hhd questions. The defendants at the same time made no objection to the testimony and took no exceptions to the ruling of the court. Held, that the objection on part of defendants to the evidence for the first time in a motion for a new trial came too late to save the point.</p>

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

<p>Writ of Error to the Criminal Court of Record for Escambia County.</p> <p>The facts of the case are stated in the opinion of the Court.</p>

<p>1. A motion in arrest of judgment on the ground of the insufficiency of the indictment must be exhibited to the appellate court by the record proper, and not by bill of exceptions.</p> <p>2. The courts take judicial knowledge,, as it is a matter of common knowledge, (hat wine is intoxicating.</p> <p>8. The act of 1S99, Chapter 4746, prohibiting the sale of spirituous, vinous or malt liquors in localities where the local option provision of the constitution has been put in operation, contemplates that such liquors shall be intoxicating, and where an indictment charges an unlawful sale of wine the court may instruct ilie jury as matter of law that wine is intoxicating. and as a consequence no harm can come to the accused by permitting a'witness to state that .the wine sold was intoxicating.</p> <p>4. Under an indictment charging an unlawful sale of wine under Chapter 4746, acts of 3899, it is competent to prove the sale by showing that a pretended sale of a different article was a subterfuge and sham for the sale of the wine.</p> <p>5. When a demurrant to evidence makes no offer to reduce the evidence to a -statement on the record of the facts proven or tended Lo be proven, the court may disregard the demurrer entirely, but if the Court overrules such a demurrer and the only evidence exhibited to the appellate court is that found in a regular bill of exceptions and it is sufficient to sustain the verdict rendered in the case, the demurrant has no ground of complaint.</p>

<p>■ Writ of error to the Circuit Court for Wakulla 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 Baker County.</p> <p>The facts of the case are stated, in the opinion of the Court.</p>

<p>Criminal law — Carnal abuse of female child — Rape—Assault with intent to commit.</p> <p>1. Our statute, section 239G Revised Statutes, providing that “whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the State prison for life,” defines the crime of rape; and while it is necessary under it to allege and prove a different state of facts in order to justify a conviction where the female involved is over the age of ten years, than where she is under that age, — the one case requiring force and want of the-female’s consent to be shqwn, the other requiring simply the carnal knowledge and abuse of the child and that she is under ten years of age to appear, — yet in either case the crime denounced is rape punishable with the same penalty of death or life imprisonment. In the case of children under ten years of age our law presumes that persons of such immature age are incapable of either consenting to or protesting against the act, and this presumption of incapacity applied as well to every act of her assailant tending towrds the commission of the crime as to the consummated crime itself.</p> <p>2. Under an indictment charging in the terms of the Statute simply the carnal knowledge and abuse of a female child under the age of ten years there may properly be a conviction of an assault with intent to commit rape. In such cases, whether the inquiry be as to the consummated crime, or as to an assault with intent to commit it, it is not necessary to allege or prove that the acts were done against the will of such child. AYhether she consented or resisted is immaterial.</p>

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

<p>Criminal law — New trial for want of evidence.</p> <p>■Where-there is sufficient evidence in a case to.sustain a conviction, and there is nothing in the record to support the assumption that the jury were improperly influenced by considerations dehors the evidence, an appellate court is not authorized to disturb the settlement by the verdict of the credit due to conflicting witnesses.</p>

<p>Criminal law — Opinion evidence — Grounds of objections to evidence must be stated — Argument of counsel — Harmless error —Newly discovered evidence as ground for new trial.</p> <p>1. The physical or mental condition or appearance of a person, or his manner, habit or conduct, may be proved by the opinion of an ordinary witness, founded on observation.</p> <p>2. General objections to questions addressed to witnesses, without stating the precise ground of objection, are vague and nugtory, and are without weight before an appellate court.</p> <p>8. It is not reversible error for the court to refuse to interfere with the argument of counsel because it is illogical, or not based on deductions reasonably inferrable from the facts.</p> <p>4. If from the verdict returned it is clear that a charge given did not influence the jury in arriving at it, and if from the standpoint of the verdict actually found such charge was favorble to the defendant, he cannot complain of it on writ of error, even though it may have been erroneous.</p> <p>5. Applications for new trial upon the ground of newly discovered evidence are looked upon with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial. (2) The party must have used due diligence to discover and procure it on the former trial. -(3) It must be material to the issue. (4) It must go to the merits'of the cause, and not merely to impeach the character of a witness. (5) It must not be merely cumulative. (6) It must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known of and produced it, he will not succeed in his application. It is no sufficient proof- of diligence in this respect merely to assert in the affidavit that the defendants have used every endeavor to obtain evidene bearing on the issues involved in the case. Neither is it sufficient to show that the newly discovered evidence was not known to the defendants counsel until after the former trial.</p>

<p>' Writ of error to Circuit Court, St. Johns county; C. D. Collins, Referee.</p>

<p>Writ of error to Circuit Court, St. Johns county; C. L. 'Collins, Referee.</p>

<p>Appeal from Circuit Court, Duval county; Rhydon M. Call, Judge.</p>

<p>Writ of error to Circuit Court, Marion county; William A. Hocker, Judge.</p>

<p>Writ of error to Circuit Court, Duval county; Rhydon M. Call, Judge.</p>