Volume 44 — Florida Reports

Writ of error to the Criminal Court of Record for Duval County. The facts of the case are stated in the opinion of the court.

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

<p>Ciiminal Law—Homicide—Indictment—Expert Witnesses In Insapity—Proceedings De Lunático Inquirmdo Not Admissible On Trial Of Party To For Murder—Insanity As Defense—Order of Admittance of Evidence..</p> <p>i</p> <p>1. Under the Laws of Florida the Circuit Court of the county where the fatal blow has been struck has jurisdiction to try the homicide though the death may occur in another county or State.</p> <p>2. The proceedings and judgment of the County Judge’s Court adjudging a party insane under the provisions of Chapter 4ggl^ Laws of 1895, are not admissible in evidence upon the trial of a criminal charge against the party therein adjudged to be insane, where insanity is relied upon as a defense to such charge.</p> <p>3. It is the province of the trial court to determine whether or not a witness offered as an expert has such qualifications and special knowledge as to make his opihion in answer to hypothetical questions admissible, and the decision of such trial judge is conclusive upon the question, unless it appears from the evidence to have been 'erroneous, or to have been founded upon some error in law. The qualifications necessary to enable witnesses to give expert or opinion evidence are prescribed as well as ascertained by rules of law, and if these rules are violated by the trial judge his action is subject to review by the appellate court.</p> <p>4. The rule laid down in McNaghten’s case, 10 Clark & Fin. text, p. 209-211, as to insanity as a defense to crime, adopted and approved. The phase of insanity commonly known as the “irresistible impulse” doctrine is not recognized in Florida, and a charge announcing such doctrine to be a defense in homicide here is erroneous, hut is not reversible error in this case, as it tended to favor the accused and not to prejudice him.</p> <p>5. Sanity being the normal condition of man, when charged with crime, he is presumed to be sane, and the mere fact of the commission of the crime is not in itself sufficient to overcome this presumption.</p> <p>6. It is in the discretion of the trial court to permit the introduction of evidence by the State, after the conclusion of the defendant’s case, though the same may not be strictly in rebuttal, if it was admissible in the main case, and unless such discretion is abused to the detriment of the defendant, it will not be ground of reversal.</p>

Writ of error to the Criminal Court of Record for Hillsborough county. The facts of the case are stated iu the opinion of the court.

<p>1. To justify an appellate court in holding the trial court in error in its ruling denying an application for a continuance in a criminal case, all facts necesary To show a clear abuse of discretion to the injury of the accused must be presented, and whenever the record is either silent or uncertain on any point material to establish such an abuse, the presumptions are all in favor of (the correctness of the ruling.</p> <p>2. No. abuse of discretion in the ruling denying an application for a continuance on the ground of the absence of a material witness is shown, where the application admits that the witness has not been served with subpoena because not found, and that at the time of the application such witness is in another State, and where the application does not state that the witness is a resident of this State and only temporarily absent in such other State, or other facts showing that if the case is continued his presence can be secured at the next term of the court.</p> <p>3. A general exception to the refusal to give two or more requested instructions aserting separate and distinct propositions of law, will be overruled if it appears that any one of such instructions was properly refused.</p> <p>4. An instruction that “the court instructs the jury, that it is incumbent upon -the State to prove every material allegation of the indictment a.s charged therein, nothing is to be presumed or taken by implication against the defendant; the law presumes him innocent of the crime with which he is charged until he is proven guilty beyond a reasonable doubt by competent evidence, and if the evidence in this case leaves upon the minds of the jury any reasonable doubt of defendant’s guilt, the law makes it your duty to acquit him and find him not guilty” is properly refused.</p>

Writ of error to the Circuit Court for Columbia County. • * Tbe facts of tbe case are stated in the opinion of the court.

<p>Criminal Law—Assignment of Errors En Masse—Confessions Admissibility Question for Court—Hearsay Evidence—-Committing Magistrates Docket Entries not Evidence—General Objections to Evidence.</p> <p>1. Where a single general assignment of error is made to embrace refusals to give two or more requested instructions that state separate and distinct propositions of law, the settled rule here is that the appellate court will go no further in the consideration of such an assignment after finding that any one of the instructions so assigned was properly refused, and such assignment will then be overruled.</p> <p>2. The question as to whether a proposed confession was freely and voluntarily made, is one. for the court exclusively to decide, and a requested charge that proposes to submit such question to the jury to determine is properly refused.</p> <p>3. The following charge given to the jury: “You aré to determine the credence which shall be attached to the alleged confessions and every part thereof, and it is your duty to give such confession a fair and unprejudiced consideration. The confession should be taken as a whole; you should give effect to such part as you believe to be true, and reject from your consideration all that you find sufficient reason to reject;” Held, to state the law correctly.</p> <p>i. Where a State witness testifies that he went to the scene of the homicide because of a remark made to him by another party, it is proper for him to state such fact, but it is ■not proper for him to repeat in evidence the substance of such remark that was the cause of his going, as it is here-say.</p> <p>5. A fact that is pertinent and revelant to the issue, and that tends to establish the commission of the crime charged, is not rendered admissible in evidence because it may have a tendancy collaterally to prejudice the defendant with the jury.</p> <p>6. The docket entries of the committing magistrate who conducted the primary examination of the accused, to the effect: “And the defendant was on this day given a hearing on said charge, and the court being satisfied that there is probable cause to hold the defendant, and believing the presumption of his guilt to be great, he holds the defendant to the Circuit Court, without bail,” are wholly inadmisssible as evidence on the ultimate trial of such defendant, under any circumstances or for any purpose, and their admission in evidence held to be reversible error.</p> <p>7. The general rule to the .effect that “general objections to evidence proposed, without stating the precise ground of objection, are vague and nugatory, and are without weight before an appellate court,” is subject to the exception that, if the evidence objected to is palpably préjudicial, improper and inadmissible for any purpose or under any circumstances, then a general objection thereto is sufficient.</p>

<p>Writ of 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>1. A homicide is justifiable under the laws of Florida when committed in the lawful defense of a person when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury and there shall be imminent danger of such design being accomplished. The danger need not be actual, but may be apparent, and the slayer is to judge from the circumstances by which he is surrounded and as they appear to him; if he acts upon appearances he does so at his peril, and can justify the killing only where the circumstances are such as to induce a reasonably cautious man to believe that the killing was necessary to save his own life, or protect him from great personal injury, but unless a reasonably cautious man would entertain the same belief from the same appearances, of which the jury are the ultimate judges, it will be no defense even though the belief of danger was honest.</p> <p>2. The belief ®f the accused as to the apparent necessity to kill in order to save his own life or protect him from great personal injury must be based upon facts and circumstances justifying such belief, and where the evidence authorizes the submission of this question to the jury the belief of the accused is material, and it is error to refuse to permit him, who is permitted by statute to become a witness in his own behalf, to testify to his belief based on such facts and circumstances.</p> <p>CARTER, X, dissents.</p> <p>3. The court instructed the jury that “before a person can avail himself of the defense that he used a deadly weapon in defense of his life and be justified, he must satisfy the jury that the defense was necesdary at the time; that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself-from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger.” Held to be erroneous; (a) it is imposed upon the accused the duty of satisfying the jury that the defense was necessary, whereas if the evidence raised a reasonable doubt it will be sufficient; (b) though an actual necessity to kill did not exist, yet if the circumstances were such as to induce a reasonably cautious man to believe his life to be in imminent danger, or that h-e was in imminent danger of receiving great personal injury, it will be sufficient.</p> <p>4. In determining the correctness of charges the court should consider them as a whole, but where a special charge in itself announces a patently erroneous proposition of law, it must affirmatively and clearly appear that the presumptive harm caused thereby has been entirely removed, or the judgment should be reversed.</p> <p>5. The charge set out in the third head-note being erroneous and embodying the specific view that if a deadly weapon was used the accused must satisfy the jury that the killing was necessary to protect life, is not cured by other charges given in the case.</p> <p>(Carter, J., dissents.)</p> <p>6. Where the evidence on the part of the State affords no basis for the introduction of threats on the part of the deceased, but that produced for the defense shows such action or demonstration on his part, at the time of the killing, as to authorize their introduction and they are admitted, it is not accurate for the court to instruct the jury that if they find there was nó evidence tending to show that the deceased had, at the time of the killing, in fact or apparently sought a conflict with the accused, or was actually or apparently making some demonstration of attack towards the accomplishment- of his threats, then they could not'take into consideration any threats made prior to the killing, and especially when they were not communicated to the accused. The threats having been1' admitted on the b.vsis of the overt'acts shown by the defense the jury should not be told to disregard them if they find there is no evidence of such overt acts, but the rejection of the threats should be made to depend upon whether the jury believed such evidence on the part of the defense.</p>

Writ of error to the Criminal Court of Record for Orange County. The facts of the case are stated in the opinion of the court.

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

Writ of error to the Criminal Court of Becord for Duval County. STATEMENT.

Writ of error to the Criminal Court of Record for Escambia County. The facts of the case are stated, in the opinion of the court.

Writ of error to the Criminal Court of Record for Du-val County. The facts of the case are stated in the opinion of the court.

<p>APPELLATE PRACTICE—CASES AT LAW REVIEW ABLE BY WRIT OF ERROR.</p> <p>The proceedings by petition, on behalf of a party desiring to have his land excluded from the corporate limits of a town, provided for by section 720 pf the Revised Statutes as amended by Chapter 4601 laws of 1897, is one at law, a judgment in which can be reviewed in the appellate court only by writ of error, and not by an appeal.</p>

<p>Appeal from the Circuit Court for Duval County.</p> <p>Dismissed by the Court for fatal defect in entering appeal.</p>

<p>Appellate Practice—Entry of Appeal—What Must Contain—And Where to be Recorded.</p> <p>Where an appeal in chancery, entered on the thirteenth of August, 1897, is made returnable “to the Supreme Court • of Florida, A. D. 1898,” without naming any day or term of the court in said year, 1898; when it is returnable, and such entry of appeal is entered in the minutes of the Circuit Court instead of in the Chancery Order Book, as required hy law, it is ineffectual as notice to the appelleee therein under the provisions of Chapter 4528 laws, approved May 7th, 1897; and where the appellee in such case in no manner appears in the appellate court such appeal will he dismissed.</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>Writ of Error to the Circuit Court for Polk County.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>Appellate Practice—Certifying Transcript of Record—Appeal from Interlocutory Decrees After Pinal Decree of Dissmissal.</p> <p>1. A certificate of the circuit clerk to a transcript of record on appeal stating simply that certain numbered pages contained a correct transcript of the record of the judgment, and a true and correct recital c-f such papers and proceedings in said cause, as appears upon the record and files of his office, that had been directed to be included in the transcript by the written demands of the parties, is fatally defective because of its omission of the words: “And copy of all,” immediately after the word “Recital.”'</p> <p>2. Where there is a final decree that dissolves an injunction previously granted and dismisses the bill, there can be no appeal solely from that feature of said decree that dissolves the injunction, and such an appeal, that does not also includ'd the feature of the decree that dismisses the bill, will be dismissed.</p>

Writ of Error to the Circuit Court for Volusia County.' Dismissed for failure to file transcript during the term o'f the court to which the writ was returnable.

<p>Writ of error to the Circuit Court for Escambia County.</p> <p>Dismissed by the court.</p>

<p>Writ of Error to the Circuit Court for Madison County.</p> <p>Dismissed by the Court.</p>

<p>Writ of Error to the Circuit Court for Madison County.</p> <p>Dismissed for failure to file and serve- assignments of Error.</p>

<p>MANDAMUS. ORIGINAL PROCEEDINGS IN THE SUPREME COURT.</p> <p>1. Under the provision in section 1305 Revised Statutes that when any officer shall wilfully and knowingly charge or levy more than he is really entitled to, he' shall forfeit and pay to the party injured four times the amount so unjustly claimed, to be recovered on motion before the court wherein the services were rendered, the Circuit Court has jurisdiction to determine in the manner provided by the statute the correctness of any charge or charges made for costs in cases pending in said court, though the amount involved be less than one hundred dollars. The jurisdiction conferred by the státute in such cases is not prohibited by any provision in the constitution.</p> <p>2. When a Circuit Court refuses to exercise jurisdiction that • ' it clearly possesses and ought to exercise, mandamus is the proper remedy to compel its exercise.</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>Appeal from the Circuit Court for Orange county.</p> <p>The facts in the case are stated in the opinion of the. cttert.</p>

<p>1| The provision of the constitution that “the right of trial by jury shall be secured to all and remain inviolate forever” guarantees such right only in those cases where at the time of the adoption of the constitution the law gave that right; and not in those cases where the right and the remedy with it, are thereafter created by statute, nor where the cause was already the subject of equity jurisdiction.</p> <p>2. Section 1744 of the Revised Statutes of Florida providing for enforcement of the liens of mechanics and material men by bill in equity is not in derogation of the provision of the constitution that “the right of trial by jury shall bq secured to all and remain inviolate forever.”</p> <p>S. The provision in section 1743 of the Revised Statutes that the lien in favor of a sub-contractor shall exist for the amount due by the owner to the contractor at the time of the service upon the owner, of notice of the sub-contractor’s claim of lien refers to the amount due by the owner on account of the improvements made by the contractor for the owner. Other indebtedness of the owner to the contractor at the.time of the service of such notice will not entitle the sub-contractor to a lien under this statute.</p> <p>4. A bill filed by a sub-contractor to enforce his lien, not praying discovery, but alleging facts upon which such lien is claimed, which does not make it appear that at the time of the service of the notice required by section 1743 Revised Statutes, any amount was due the contractor by the owner on account of the improvements made by the contractor for such owner, is demurrable.</p>

<p>1. No alienee, grantee, assignee or mortgagee is bound or affected by a judgment or decree rendered in a suit commenced by or against the alienor, grantor, assignor or mortgagor subsequent to the alienation grant, assignment or mortgage, to which he is not a party.</p> <p>2. Where a plea in equity is allowed upon argument, the complainant is entitled to file a replication and contest its < truth.</p>

Writ of Error to the Circuit Court for Hernando County. STATEMENT. The plaintiff in error brought suit against the defendant in. error in the Circuit Court of Hernando county.

<p>'.CLAIM-—JUDGMENT IN—REVERSAL OF FORM OF JUDGMENT WITH DIRECTIONS FOR PROPER JUDGMENT.</p> <p>.1. Under a statutory claim proceeding interposed in an attachment suit, the statute, section 1200 Revised Statutes, pro- ( vides that “upon the verdict of the jury the court shall enter judgment deciding the right of property, and if the verdict is for plaintiff, awarding a recovery by the plaintiff from the defendant and his sureties, of the value (as •fixed by the officer, or as fixed by the jury if fixed by it) of such parts of the property as the jury may have found subject- to execution, and awarding separately such damages as the jury may have awarded, and all costs attend■ing the presentation and trial of the claim.” Under this statute it is error to enter judgment against the claimant ,-and his sureties for an indefinite sum- to be thereafter ascertained by the judgment to be entered in the principal attachment suit.</p> <p>' 2| Where the officer levying a writ of attachment affixes a valuation upon the property levied upon and a claim is interposed to such property and no issue is raised-as to such valuation in the trial of such claim proceeding, and no submission is made to the jury q.nd no finding is made by them as to the value of such property, on a general verdict in favor of the plaintiff in attachment against the claimant for all of the property, a judgment is authorized by the statute against the claimant and his sureties for the amount of the value of such property as fixed by the officer levying the attachment.</p> <p>3. Where an improper judgment is entered upon a proper verdict the appellate court will reverse it with directions for entry of a proper judgment on the verdict.</p>

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

<p>1. One who interposes a claim under the statute to property levied upon by virtue of a writ of attachment can not be permitted to prove at the trial of such claim that no valid levy of the attachment had been made, as the validity of the levy of the process can not by the claimant be made an issue between himself and the plaintiff in the process in such proceeding.</p> <p>2. In claim proceedings under the statute the burden of proof . is upon the claimant, who must recover upon the strength of his own title and right to possession of the property claimed, and the claimant has the right to open and close.</p> <p>3. An assignment for the benefit of creditors which purports upon its face, or is shown by other evidence, to include only a part of the assignor’s property and to have been made for the benefit of a portion only of the assignor’s creditors is, under section 2307 Revised Statutes, void as to attaching creditors of the assignor.</p> <p>4. An attachment issued at -the instance of a creditor of the assignor and levied upon property embraced in an assignment theretofore executed which is void as to such creditor under section 2307, Revised Statutes, because it embraces only a part of the assignor’s property and is made for the benefit of a portion only of the assignor’s creditors, can not be displaced, or the rights of such attaching creditor thereunder cut off by the making of a subsequent assignment for creditors in proper form, even though it was intended by such new assignment to correct the fatal defects in the former one.</p> <p>■5. Subsequent, to the institution of a claim proceeding by an assignee f<?r creditors for property embraced in the assignment levied upon by virtue of a writ of attachment issued at the instance of a creditor .of the assignor, a judgment was obtained in the attachment proceeding upon which execution issued,' and át the time of the trial of the claim proceeding such execution had been paid in full. The execution had, however, been levied upon the identical property embraced in the claim proceeding and the property had been sold thereunder without objection on the part of the claimant, and the proceeds had been paid over to the plaintiff in execution in part satisfaction thereof: Held, that the plaintiff in attachment had not by reason of the payment of his execution under such circumstances been deprived of his right to question the validity of the title asserted by the claimant, under and by virtue of the assignment, to the property embraced in the claim proceeding.</p> <p>6. The issues in a claim proceeding are confined to the specific property embraced in the claim affidavit and bond, and the judgment to be entered must be confined to that specific property.</p>

<p>EVIDENCE—COMPETENCY OP PARTY AS WITNESS WHERE OPPOSITE PARTY TO TRANSACTION DECEASED —BOOK ACCOUNTS, SUPPLETORY OATH TO PROVE.</p> <p>1. The proviso to section 1095, Revised Statutes, prohibiting a party to an action or proceeding, or person interested in the event, etc., from testifying as a witness in regard to any transaction or communication between such witness, and a person at the time of such examination deceased, insane or lunatic, does not prohibit the admission in evidence in favor of either party of the shop books and books of account of either party, in which the charges and entries shall have been originally made, as provided for by the act of 1854, brought forward as section 1120 of the Revised Statutes; neither does the proviso to saiii section 1095, Revised Statutes, prohibit the introduction in evidence of the suppletory oath of the party in connection with such books of account, to the effect that the articles charged therein were delivered, or the items of labor and services therein charged were actually performed, and that the entries thereof were made at or about the time of the transaction, and are the original entries, and that the charges have not been paid. Such books to be admissible in such cases must appear to be fairly kept and free from erasures and interlineations, to be judged of by the court.</p> <p>2. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can • derive impressions or information from the conduct, condition or language of another; and in a case where such transactions or communications were had between a party to a suit, or one interested in the event thereof, and a party dead, lunatic or insane at the time they are offered in evidence, they can not be testified to by such party to the suit or by any one interested in the event thereof, under the proviso to section 1095, Revised Statutes, except as to matters properly a part of the suppletory oath in connection with books of account offered in evidence under the provisions of Section 1120, Revised Statutes.</p>

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

<p>APPELLATE PRACTICE—SUPERSEDEAS IN CHANCERY APPEALS—CHAPTER 4917, LAWS OP 1901, CONSTRUED—SU-PERSEDEAS OP IN JUNCTIONAL DECREES REQUIRES SPECIAL ORDER—VACATING SUPERSEDEAS.</p> <p>1. The first part of sub-division 1 of section 1 of Chapter 4917 laws, approved May 27th, 1901, taken in connection with- - section 1272, Revised Statutes, makes provision for a statutory supersedeas of final decrees, without any order from any judge or court in cases where the appeal is entered and the requisite bond given within thirty days from the rendition of such decree, but if such appeal is taken . after the expiration of thirty, days from the rendition of such final decree, it can become a supersedeas thereof only uppn the order of the Supreme Court, or one of the justices thereof. The latuer part of.the first sub-division of section 1 of said act operates as a proviso to the first part of such sub-division, and its meaning and purpose is to restrict and limit the operative effectiveness of supersedeases, whether obtained by force of the statute itself in cases where the appeal is taken and bond given within thirty days from the rendition of tho decree, or by a general order of the Supreme Court or a justice thereof, so that such supersedeases should not have the effect of suspending or modifying, not the entire decree appealed from and every phase and provision thereof, hut those features and provisions thereof only that may grant or dissolve an, injunction, unless the Supreme Court or a justice thereof shall by a special order cause it (the supersedeas) to have the effect of suspending or modifying such injunctions! feature of the decree appealed from. The proper construction of said first sub-division of section 1 of said act is .that where a final decree appealed from contains provisions other than those granting or dissolving an injunction besides the latter provisions, and a supersedeas of such decree is obtained, either by force of the statute by'the perfection of an appeal therefrom within thirty days from its rendition, or after that time by a general order of the Supreme Court or a justice thereof, that such supersedeas is of full force and effectiveness as to all the provisions of such decree, except those provisions thereof that grant or dissolve an injunction. The latter provisvisions thereof, when existent, can he suspended or modified only by a special order of the Supreme Court or a justice thereof expressly suspending or modifying them.</p> <p>2. The Circuit Judges, under the provisions of Chapter 4917 laws, approved May 27th, 1901, have no authority, on an appeal from a final decree, to grant a supersedeas thereof.</p> <p>3. In eases where there is a statutory supersedeas obtained by virtue of the perfection of an appeal within thirty days from the rendition of the decree appealed from, the appellate court has no authority to vacate it upen the ground that the appeal is frivolous.</p>

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

<p>1) The fact that the judge of a Circuit Court is the plaintiff, or for other reason disqualified in a cause pending in that court, in no manner affects the power of the clerk of the court to perform the ministerial act of entering defaults proper to he entered because of failure to plead within the time required by law, conferred on him by statute; and a default so entered in such a case by the clerk, tested in the name of the judge as well as his own, is valid.</p> <p>2. If a motion to dismiss filed by the defendant in an action at law within the time allowed by the statute for filing a plea or dmeurrer he of such a character that the plaintiff ' will he justified in treating it as a nullity, he may disregard it, and cause the clerk to enter a default for failure to plead to demiur, hut if the motion be not of that character, no default can be entered until the motion is disposed of.</p> <p>3. An unverified motion to dismiss in behalf of both defendants in an action at law against two, one of whom has been duly served with process in the county where the suit is instituted, the grounds of such motion being that the court has no jurisdiction over the defendants therein, that the cause of action did not accrue in such county, that neither defendant resides in said county, that there is nothing local in the action that gives the court jurisdiction, filed on the return day of the summons, where there is nothing in the record tending to show that the last three grounds of the motion are true, may be treated as a nullity by the plaintiff, and if no plea or demurrer is filed on the next rule day after the filing of such motion, a default for want of plea or demurrer may be entered notwithstanding such motion is then on file.</p> <p>4. Where a defendant appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction, and must not include therein some other ground that recognizes the jurisdiction of the court over his person, and amounts to an appearance in the cause by him, and if he does so the motion will be held to be a general appearance, notwithstanding the fact that it purports to be made in pursuance of a special appearance.</p> <p>5. A motion made in pursuance of a special appearance entered in a cause by a party not served, ashing the dismissal of the cause upon the ground that the court has not acquired jurisdiction over his person, and also upon the ground of personal privilege to be sued in another county, recognizes the jurisdiction of the court over the person of the mover, and amounts to a general appearance on his part.</p> <p>6. Under Section 1034, Revised Statutes, motions to open defaults properly entered, in order to permit the party in default to plead, must be made within sixty days after the entry of the default, or at the next term of the court if one intervenes between the entry of the default and the expiration of said period of sixty days. ‘</p>

STATEMENT. The appellants filed their bill in equity on March 25th, 1897, in the Circuit Court of Orange county against the appellee alleging as follows: That Eudora 0.

<p>1. Where the Attorney-General in behalf of the State, under sections 1781 et seq. Revised Statutes, institutes proceed^ ings in his own name by information in the nature of quo warranto for the double purpose of ousting a respondent from a public office and having it judicially declared that a person claiming title to tha office named therein is rightfully eniitled to such office, the person so claiming the office named therein is not required to give a bond or other security for costs.</p> <p>2. An information by the Attorney-General in behalf of the State alleging that respondent uses, enjoys, exercises and perforins the functions of a public office without warrant or authority of law, and charges usurpation of such office hy respondent, is sufficient to require the respondent to show by what right or authority he exercises or performs the functions of such office as against the State.</p> <p>3. An information hy the Attorney-General in behalf of the State alleging that respondent uses, enjoys, exercises and performs the functions of a public office without warrant or authority of law, charging usurpation of the office by the respondent, and alleging that another person claiming the office named therein is rightfully entitled to th’e office, and praying that process issue requiring respondent to answer by what warrant or authority he claims to use, enjoy, exercise and perform the functions, franchise and cower of the office, and that the person claiming the office named therein he adjudged to he rightfully entitled thereto, is good as against a demurrer to the entire information, even though the allegations with reference to the title of the person named therein as claiming the office are insufficient to show his right to the office.</p> <p>i. Under section 1078, Revised Statutes, where the judge of a Circuit Court is disqualified in a case pending in his Circuit, it is made the duty of the judge of any other circuit, upon application of a party to such cause, to perform any duty or hear and determine any matter therein which it would be the duty of the judge of the court in which such cause is pending to perform, or to hear and determine in vacation or between terms, but for his disqualification. In performing the duty required by this statute the judge to whom application is made acts in the place and stead of the disqualified judge, not for the purpose of hearing and deciding every matter arising in the cause, but only in. respect to the particular matter submitted to him, and therefore other matters arising for decision in the same cause, proper to be heard and determined in vacation or between terms, may be submitted to and neard and determined by the judge of any other circuit under the statute.</p> <p>5. Se :tion 1078, Revised Statutes, does not contravene the provisions of Section 12, Article V, nor Section 19, Article V, Constitution of 1885.</p> <p>6. Under Section 1078, Revised Statutes, the judge of another circuit, upon application of a party to a cause pending in one circuit in which the judge of the circuit is disqualified, may not only hear and determine a demurrer to pleas in such cause, hut may enter final judgment upon sustaining such demurrer, where the party does not desire to amend or plead over, and where such final judgment is one that can legally be entered in vacation or between terms.</p> <p>7. Where a vacancy in the office of prosecuting attorney for a Criminal Court of Record occurs during a session of the legislature, by reason of the resignation of an incumbent regularly appointed for four years, the successor to fill such vacancy is properly appointed by the Governor and confirmed by the Senate for the unexpired term of the incumbent whose resignation caused such vacancy, and not for four years.</p>

STATEMENT. On June 19th, 1897, the appellant filed its original bill .of complaint against the appellee in the Circuit Court of Duval county, to which appellee filed her answer incorporating therein certain specific grounds of demurrer.

Writ of Error tlo the Circuit Court for DeSoto county. STATEMENT. Defendant iin error as .contestant filed in the office of the Clerk of the Circuit Court for DeSoto county on the third day of December, 1900, a petition against plaintiff in error ais contestee to contest the election for tax collector held on the sixth day of November or that year.

Writ of Error to -the Circuit Court for Hillsborough County. STATEMENT. Defendant in- error sued plaintiff in error and obtained a judgment for $775 and costs, to Which a writ of error was sued out.

Writ of Error to the Criminal Court- of Record) flor Duval county. The.facts of the case are stated in the opinion of the. court.

Writ of error to the Criminal Court of Record for Du-val County. The facts in the case are stated in the opinion of 'the ■court.

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

Writ of Error to the Circuit Court for Orange County. STATEMENT. Plaintiff in error was indicted in the Orange county Circuit Court for murder, and! the trial resulted in Ms conviction of manslaughter.

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

Writ of error to the Criminal Court of Record for Duval County. The facts of the case are stated in the opinion of the ■court.

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

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

<p>1. Where defendant in a criminal case interposes a demurrer to the State’s evidence which is in parol and almost wholly circumstantial, and no part of the testimony is reduced to writing, no specific facts are admitted upon the record and the State Attorney does not join in such demurrer, the court should decline to consider it; but if the court does consider and overrules it, and defendant is afterwards permitted to interpose evidence, in his defense, the error in overruling, instead of declining to consider the demurrer, is without injury, and will constitute no ground for reversing the judgment of conviction entered upon the verdict of the jury.</p> <p>2. A taking by the voluntary consent of the owner or his authorized servant or agent, even though with a felonious intent, does not constitute larceny.</p> <p>S. Where the criminal design to steal originates with the accused, and the owner of the property stolen does .not in person or by an agent or servant suggest the design, nor actively urge the accused on to the commission of the crime, the mere fact that such owner, suspecting that the accused intends to steal his property, in person or through an agent or servant exposes the property, or neglects to protect it, or furnishes facilities for the execution of the criminal design under the expectation that the accused will take the property or avail himself of the facilities furnished, will not in law amount to a consent to the taking, even though the agent or servant of such owrier by his instructions appears to co-operate in the execution of of the crime.</p> <p>4. Evidence examined and found insufficient to support the verdict.</p>

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

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

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

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

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

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

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

STATEMENT. On October 22nd, 1901, appellants filed their bill in equity against appellees in the Circuit Court of Leon county, alleging that on February 13, 1901, the Board of Commissioners of State Institutions, consisting of the Governor, Secretary of State, Treasurer, Comptroller, Superintendent of Public Instruction, Attorney-General and the defendant McLin, Commissioner of Agriculture, was in session, a quorum! being present, for the purpose of transacting such business…

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

<p>All question of law and fact necessary to be considered in disposing of this writ of error having been discussed and' decided by this court in an opinion filed at the present term in the case of Camp et al., appellants, vs. McLin, • Commissioner, et a!, appellees, the judgment of the Circuit Court in this case must be affirmed in accordance with the decision in that case.</p>

This case was decided by the court En Banc. The writ of error in this cause was issued by the clerk of the Supreme Court to a judgment ¡rendered by a Justice of the Supreme Court in a habeas corpus proceeding before him.

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

<p>1. The Circuit Court has jurisdiction of an action wherein plaintiff in good faith ■ claims to recover a sum exceeding $100, even though it should be decided during the progress of the suit that plaintiff’s recovery must be less than $100. Where, therefore, the plaintiff by his declaration in a particular case sought in good faith to recover damages for the negligent killing of ^tock alleged to be of the value of $100, and a reasonable attorney fee for collecting'said'sum claimed by him and held by the trial court to be authorized by a statute-of-the State, that court had jurisdiction of the cause even though the appellate court upon writ of error from the judgment should hold that attorney’s fees were, improperly allowed to be ■recovered in the suit.</p> <p>2. In actions to recover for stock killed.by the negligence of railway companies, attorneys’ fees cannot be recovered by the plaintiff unless authorized by statute.</p> <p>S. Section 6 of Chapter 4069, acts of 1891, does not authorize recovery of attorneys’ fees in: actions against railroad companies for the negligent killing of stock, nor for stock killed by railroads after the companies have fenced their tracks and are maintaining them as required by that act, but authorizes such recovery in actions for stock killed during the time the companies are complying with the provisions of the act requiring them to fence a certain specified portion of their roads each month after the passage of the act.</p> <p>4. Where abstracts cf the record do not purport to set forth the particular acts of negligence charged in the declaration in an action to recover damages for negligently killing stock, an appellate court can not declare error in a. ruling admitting evidence as to unlawful rate of speed as against the objection that the declaration 'does not allege an unlawful rate of speed as a ground of recovery.</p> <p>5. Municipal ordinances may, independent, of statute, be proved by copies thereof duly certified by the city clerk. *</p> <p>6. A copy of a written notice to the stock claim agent of a railway company, of the killing of stock, and demanding payment of a sum claimed to be its value, is properly admitted in evidence over the objection that the original is the best evidence.</p> <p>7. TJnder section 1088 Revised Statutes, a Circuit Judge may upon the conclusion of the argument in a civil cause after all the evidence has been submitted, if it be appar- - eht to him that no evidence has been submitted upon which the jury can lawfully find a verdict for one party, direct the jury to find a verdict for- the opposite party, but until all the conditions of the statute are met the judge can not be held in error for refusing a request to direct a verdict. Where, therefore, the request is made after all the evidence was in, but before the argument of counsel the judge is justified in refusing it.</p> <p>8. The propriety of the giving or refusal of a request to. charge the jury to find for a party under section 1088 Revised Statutes, involves a consideration of all the Evidence introduced upon the trial, and in order to have the question reviewed by the Supreme Court the substance of all the evidence introduced by both parties must be set out in the bill of exceptions and abstracts of the record in connection with' the request to charge as required by the provisions of special rule No. 3 in respect to instructions, given or refused. .</p> <p>9. Where assignments of error are predicated upon the giving or refusal of instructions requiring statements of the substance of the testimony upon which they were based in- order to determine their propriety, such statements, must be set forth in the bill of exceptions and abstracts in connection with the instructions or the Supreme Court can not under its rules consider them.</p> <p>10. Where proper assignments of error raise the question of the sufficiency of the evidence to support the verdict they can not be considered unless all the evidence is presented by an evidentiary bill of exceptions- properly made up, and abstracted if.the cause is to-be determined upon abstracts of the record.</p>

Writ of error to the Circuit Court for Brevard County. STATEMENT.

Writ of error to the Circuit Court for Holmes County. STATEMIONT. Defendants in error sued plaintiff in error and obtained judgment for $844 and costs, to which a writ of error has been sued out. The declaration as amended consists of two counts as follows: 1.

<p>1. A court of equity has jurisdiction to declare void' as a-cloud on title a tax deed not made by statute prima facie evidence of title or of the regularity of the proceedings, where the defect does not appear upon the face of the deed and is of such a character as that it will not necessarily and indubitably appear from the evidence that the tax title holder must necessarily introduce in order to prove title under such deed.</p> <p>2. A deed executed by the Governor and Secretary of State under Chapter 4011, acts of 1891, for lands certified to the State for nonpayment of taxes assessed under Chapter 4010, acts of 1891, may be declared void as a cloud on title by a court of equity, where the assessment was made by the collector of revenue, and not by the assessor, and the land was not assessed in the name of the owner or person son in whose name the return- was. made, or as’ “unknown,” but in the name of a fictitious company or person; and this is true whether the deed be or be not prima facie evidence of title or of the regularity of the proceedings.</p> <p>3. An appellate court will not sua sponte notice a defect of allegation in a bill of equity, unless the defect be such as that the bill wholly fails to state a case for equitable relief.</p> <p>4. Knowledge cn the part of the owner of property that an alleged assessment thereof for taxes'is- void, does not vitalize such void assessment, nor does the payment of a void tax in one year render valid a void tax of a succeeding year.</p> <p>5. Section 22, of Chapter 4010, acts of 1891, does not authorize the assessment of property in the same name as it was assessed for the previous year, nor does section 31 authorize such assessments except wh/.n made by the clerk of the court.</p> <p>6. Wrongful forcible possession is not such possession as the owner must have in order to maintain a bill to remove a cloud on title.</p> <p>7. Where the defendant in a proceeding in equity to declare void a deed held by him based upon a certification of land to tbe State for non-payment of taxes, makes no proof as to the amount of taxes and disbursements which he claims should be refunded~to him by the complainant, it is not error for the court to declare void the deed without making provision for the payment by complainant to defendant of taxes and disbursements.</p>

<p>Writ of error to the Circuit Court for Jackson County.</p> <p>STATEMENT.</p> <p>On May 7th, 1894, the defendant in error filed her petition in the Circuit Court of Jackson county, alleging as follows: “That she was the owner of certain real estate, therein particularly described, lying in Jackson county, Florida; .that these lands were unimproved pine . lands, and were assessed for taxes for the year 1893, by the tax assessor of said county at a valuation of three dollars per acre, which was much more than the real value of the lands; that the collector of revenue for said county theatened to sell said lands on the seventh day of May, 1894,. for the payment of said taxes, and was at the filing of said petition advertising the lands for sale on said day for that purpose; that the assessment of said lands was not a fair and equal assessment, but was made in pursuance of a prearranged plan of the tax assessor whereby in making assessments of property in said county for taxation he assessed lands of the description aforesaid, which comprised a very large part of the area of the county of Jackson, at an uniform valuation of one dollar per acre for the same, if given in to the assessor of said' county for assessment by the owner thereof, said assessment being made without regard to the true value, or to any difference which might exist in the values of the difi’erent tracts comprising such lands, and assessed the ■same uniformly at a greater valuation—usually of three ■dollars per acre—if they were not given in for assessment and taxation by the owner, without regard to the real value of such property; that this difference in the .amount of the assessment is based, not in any difference in the value of the lands assessed, but absolutely and exclusively upon the action of the owner in giving in, or failing to give in, his property for assessment; that the assessment of petitioner’s property was made in pursuance of ■■said plan, and that the same is unjust and unequal, without uniformity, fraudulent, illegal and void.”'</p> <p>The prayer of said petition was that the court would -grant an order declaring the said assessment illegal and not lawfully made, and prayed further for process of the court to be directed to the county Of Jackson requiring it ■to answer the petition.</p> <p>The defendant county filed its demurrer to the petition upon the grounds: (1) That the petition does not set forth facts sufficient to entitle the petitioner to the relief prayed; (2) it hat the facts alleged merely show an over valuation of the lands, and not an illegal or unlawful assessment; (3) that the petitioner’s remedy was to appear'before the board of county commissioners, at its July -and August meeting, 1893, and having failed to do so the petition would not Tie; -(4) that the petition shows that the property was to have been sold on the seventh day of May 1894, which period has elapsed; .(5) that the assessment could not be declared unlawful in this proceeding after a sale had been had upon the assessment.</p> <p>'The county filed an answer to which it is stated a demurrer was sustained by the court though we find no demurrer in the abstract. The court overruled the demurrer to the petition and declared the assessment of the-lands described in the petition for the year 1893 to have been unlawfully made. The county sued out a writ of error and assigns as error among others, the decision, of the court overruling the demurrer to- the petition.</p> <p>The other facts in the case are stated in the opinion of the court.</p>

<p>APPELLATE PRACTICE—DISMISSAL WHERE FRIVOLITY OF APPEAL APPEARS.</p> <p>Where a cause pending in the appellate court is heard and considered upon an application for a supersedeas of the decree appealed from, and upon a simultaneous motion by the appellees to dismiss for failure on the part of appellants to file- briefs within the time prescribed by the rules, and upon.counter motion by appellants for further time to file briefs, and the court is satisfied that the appeal is frivolous and without merit, the motion to dismiss for failure to file briefs will be granted.</p>

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

Writ of error to the Circuit Court for Jacksou County. STATEMENT. The plaintiffs in error instituted mandamus proceedings in the Circuit Court of Jackson county against the county commissioners of said county.

<p>The authority of an agent can not he proven by the declarar tions or representations of such alleged agent which were-not known to or ratified by the alleged principal.</p>

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

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

<p>1 Under special rule two, for making up transcripts of records in civil causes for the appellate court, the transcript should not contain any papers, matters or proceedings that are not necessary for a clear and full presentation of some point or question raised by the assignments of error ro be relied on in the appellate court; and where in an attachment suit the issues upon which the trial was had arose upon the traverse of the attachment affidavit, and under the directions of the plaintiff in error, with no additional directions from delendant in error, the transcript sufficiently shows the jurisdictional facts to authorize the court to determine the questions presented on the issues raised, it will be sufficient.</p> <p>2. An affidavit in attachment alleged that defendant in attachment, on a certain date, was and still is indebted to affiant in a certain sum of money, and that the same was on the date mentioned, and still is, actually due, and that affiant on said date had reason to believe that said defendant would frudulently part with his property before judgment could be obtained against him; and that said defendant was oh said date fraudulently disposing of his property; and that on said date said defendant was secreting his property. Defendant filed a traverse affidavit that on the date mentioned he did not intend to fraudulently part with his property before judgment could be obtained against him, nor did he contemplate fraudulently parting with his property before judgment could be obtained against him; that he was not on the date mentioned fraudulently disposing of his property; that he was not on the date mentioned secreting his property. The trial court ruled that the traverse affidavit was sufficient: Held, that the ruling was erroneous, as the defendant should have traversed the averment, in the attachment affidavit that affiant had reason’ to believe in the grounds of attachment stated.</p>

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

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

<p>1. In order to constitute a valid gift the transaction, must be consummated by delivery of the thing given.</p> <p>:2. Where the Subject-matter of an alleged gift consists of a debt due the donor by the donee evidenced by due bills, and no receipt for the debt is actually given, and no credit entered, and where the evidence of the debt is not can-celled. destroyed, delivered to the donee or otherwise placed beyond the control of the donor, no valid gift is effected. Until consummated in the manner stated the transaction amounts to no more than a promise to give, which being without valuable consideration will not be enforced by the courts.</p> <p>;-3. Where due bills are given for money loaned, specifying no time of payment, with no mention of interest therein, and from written correspondence between the parties at the time of the loans and the giving of the due bills, it appears that the parties did not regard the due bills as due immediately or as bearing interest until a demand for payment of the sums leaned, interest should be computed upon such loans from the time of such demand for payment, and not from the date of the due bills</p>

<p>Writ of err&f4a[tbe Circuit Courj-for Duval County.</p> <p>The facts in tlie case are stated in the opinion of the court.</p>

<p>1. A bill to remove a cloud upon title must allege tbat the complainant is not only the owner, but that he is in possession of the land the title to which is alleged to be clouded, or that it is wild and unoccupied.</p> <p>Ü. Prior to the enactment of Chapter 4739, acts of 1899, where the instrument or proceeding complained «f as constituting a cloud upon title was void upon its face, or where the instrument was not void upon its face, but the party claiming under it, must in order to recover upon it have necessarily offered evidence that would inevitably show its invalidity and destroy its effe2t, such instrument was not such a cloud upon title as that a bill in equity would lie to. remove it.</p>

<p>Appeal from the Circuit Coui*t for Santa Rosa 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 ror Lmval County..</p> <p>The’ facts in the case are stated in the opinion of the Court.</p>

<p>Writ iof error to the Circuit Court for Volusia Count</p> <p>The facts in the case are stated in the opinion of tl Court.</p>

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

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

This case was decide'.! by Division 15. Appeal from the Circuit Court for Alaclma County. The facts in the case arc stated in the opinion of the court.

This case was decided by Division !■>. Writ of Error to the Circuit Court for Nassau County. The facts in the case-are stated in the opinion of the Court.

This cause was decided by Division A. Appeal from the Circuit Court for Holmes County. The facts in the case are stated in the opinion of the Court.

This cause was decided by Division A. Appeal from the Circuit Court for Gadsden County. STATEMENT. 'On October 23rd, 1889, the firms of H. B. Clafiin & Co., Holder & Post, Lippmann Brothers and the corporation The Bradley Fertilizer Company filed their joint bill of complaint against the apellants.

. This cause was decided by Division B. Writ of Error toi the Circuit Court for Orange County. The factsi in the case are stated in the opinion of the court.

This cause was decided! by Division A. Writ of error to the Circuit Court for Escambia County. •The facts in the case are stated in the oinion of tbe court.

<p>This cause was decided by Division B.</p>

This cause was' decided by Division B. Appeal from the Circuit Court for Hillsborough 'County. The facts in the case are stated in the opinion of the ■court.

This cause was decided by Division B. Appeal from the Circuit Court for Orange County. The facts in the case are stated in the opinion of the ■court, court. •

This cause was decided by Division B. Appeal from the Circuit Court for Orange County. The facts in the case are stated in me opinion of the court.