Volume 46 — Florida Reports

This case was decided by Division A. Writ of error to the Criminal Court of Record for Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Brevard county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Dade county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Calhoun county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Dade county. The facts of the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B.. Writ of error to the Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Criminal Court of Record for Duval county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Criminal Court of Record for Volusia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Dade county. The facts of the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Santa Rosa county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Dade county. The facts of the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

<p>1. The amendment of a criminal statute does not, under section 32, Article III, constitution of 1885, affect the prosecution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force.</p> <p>2. An indictment charging the particulars of an offense under section 2598, Revised Statutes, as it stood prior to the amendment thereof by chapter 4965, acts of 1901, but alleging the time of its commission as a day subsequent to the amendment, will not support a conviction for an offense committed prior to the amendment.</p> <p>3. As a general rule the precise date laid in the indictment as the time of the commission of an offense need not be proved, and there will be no variance if another day be proved, provided it be prior to the finding of the indictment and within the statute of limitations. But every indictment must on its face charge the commission of a criminal offense, including matters necessary to enable the court to impose the proper sentence in case of conviction, and in determining its sufficiency in these respects the date alleged must be taken as the true date.</p>

This case was decided by Division A. 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.

This case was decided by Division A. Writ of error to the Circuit Court for Baker county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Marion county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</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>

This case was decided by the court in banc. Writ of error to the Circuit Court for Duval county. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Pane. Writ of error, to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Holmes county. The facts in the case are stated in the opinion of the court.

This case was decided by the Court En Banc. Writ of error to the Circuit Court for Clay county. The facts in the.case are stated -in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Santa Rosa county. The facts in the case are stated in the opinion of the court.

This case was .decided by Division A. Appeal from Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Volusia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Walton county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Jackson county. The facts of the case are stated in the opinion of the court.

This case was decided by Division A. • Writ of error to the Circuit Court for Osceola county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division A.</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>

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Escambia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Marion county. The facts in the case are stated in the opinion of the court.

<p>Habeas Corpus — County Convicts Subject to Labor on Roads— Sheriffs’ Powers and Duties Subject to Regulation by Law-</p> <p>1. Under the provisions of section 3032, Revised Statutes, the county cdmmissioners have authority to employ county convicts at labor upon the public roads of their respective counties; and under the provisions of chapter 4391, laws of 1895, they have authority to appoint and employ guards and keepers over such convicts while so at work, and to provide for the feeding and care of such prisoners; and the guards and keepers so employed are clothed with authority to have the care and custody of such prisoners while at work.</p> <p>2. Sheriffs have no exclusive inherent or constitutional right to the custody, care and keeping of county convicts, or to the emoluments to be derived therefrom, but, under the con-' stitution, the powers, duties and compensation of sheriffs are dependent upon legislative action.</p>

This case was decided by the co.urt En Banc. Writ of error to the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Putnam county. The facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Writ of error to the Circuit Court for Alachua county. Statement. In August, 1897, plaintiff in error began an action against defendant in error in the Circuit Court of Alachua county.

<p>Pleading — Real Party in Interest — Amendment—Pledges of Chose in Action — Fire Insurance — Waiver of Proofs of Loss by Denial op Liability — Insurance Agents, Authority of — Limitation of Time for Proofs of Loss.</p> <p>1. A suit on a policy of fire insurance originally instituted by H. and B. as joint plaintiffs may, under the Florida statute of amendments, be properly amended so that H. shall be the sole nominal plaintiff suing for the use of B.; and such suit may further be properly amended so as to drop 'H. as a plaintiff therein altogether, the usee B. being substituted as the real and only plaintiff; and such suit, in so far as B.’s rights are affected by a clause in the policy sued on limiting the time within which suit thereon may be instituted, will be deemed and held to have been instituted on the date when it was first brought by H. and B. as joint plaintiffs.</p> <p>2. Where H., to whom a policy of fire insurance is issued, after a loss thereon, assigns and delivers it to B. to secure an indebtedness due from him to B. and for collection as his agent with authority to B. to collect the same and to deduct from the proceeds the amount of H.’s indebtedness up to the time of such collection, and to account to H. for any overplus above such indebtedness, under these circumstances, Held: That B, under the provisions of section 981, Revised Statutes, permitting any civil action at law to be maintained in the name of the real party in interest, can, in his own name alone, maintain an action at law for the collection of such policy as the real party in interest. Held, further that in such arcase, in the event of B.’s recovery in his own name on such policy, the only claim that H. would have would be against B. for any balance remaining after the payment in full out of the proceeds of H.’s debt to B. In such case H. would have no claim against the insurance company.</p> <p>3. If the provisions of a policy of fire insurance render it void in the event the insured did not own the land in fee upon which the insured premises stood, or in the event the personalty insured was encumbered with a chattel mortgage, these avoiding facts, if existent, are proper matters of defense to a suit on such policy for the defendant to urge by plea, and it is not necessary to the maintenance of the plaintiff’s suit on such policy that he should negative such facts in his declaration.</p> <p>4. An agent may be authorized to deny on behalf of a fire insurance company liability on a policy issued by such company, when he is not authorized by such company to adjust the loss or to accept for it proofs of loss.</p> <p>5. If an agent of a fire insurance company has authority for it to deny liability on one of its policies, and does so deny such liability, then it makes no difference whether such company has knowledge of such denial of liability or not; it is bound by the authorized acts of its agent whether it has knowledge of such acts or not.</p> <p>6. In a suit on a policy of fire insurance, where the declaration alleges that there was a denial of liability on the policy by the defendant company, it is not necessary for such declaration to allege that the plaintiff was misled by such denial of liability. The simple allegation that the defendant company denied all liabilty on the policy is sufficient to give to the plaintiff any advantage to be' derived from a waiver of proofs of loss that follows, as a legal consequence, upon such denial of liability. The question in such a case is one purely of fact. Did the defendant company absolutely repudiate or deny all liability upon the policy sued on? If it did, then it follows, as a legal consequence, that it has waived the making of proofs of loss provided for in the policy.</p> <p>7. Where a local agent of an insurance company has authority to represent the company in making contracts of insurance, in collecting premiums and in signing policies, he also has authority to waive proofs of loss, either in writing, or by parol, or by matters in pais which amount to an estoppel. An insurance company can not make its local agent the medium through which all the benefits of a policy flow from the insured to it, and then deny that he has authority to represent it when the benefits of the insured are involved.</p> <p>8. The acts of an agent, performed within the scope of his real or apparent authority, are binding upon his principal. The public have a right to rely upon an agent’s apparent authority, and ar,e not bound to enquire as to his special powers unless the circumstances are such as to put them upon inquiry.</p> <p>9. The following stipulation in a policy of insurance: “No officer, agent or other representative of this company shall have power to waive any condition or provision of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and .as to such provisions and conditions no officer, agent or representative shall have power or be deemed or held to have waived such conditions or provisions unless such waiver, if any, shall be written upon or attached hereto,” refers to the conditions which go to the making of the contract of insurance, and not to provisions relating to the proof of loss which are to be performed in the event of a loss, and, consequently, this stipulation does not operate to prevent the company from making waiver of proof of loss by conduct, or otherwise than by an express agreement.</p> <p>10. The legal effect of the provision in the policy of insurance sued on in this case that requires the assured to make proofs of loss within sixty days after the fire, is not to make such policy void, forfeited or annulled upon a failure to furnish such proofs of loss within the prescribed time, but its only effect, in connection with another provision in such policy stipulating that the amount due upon the policy shall be payable sixty days after satisfactory proofs of loss have been received by the company, is that it postpones the date when the amount of the loss becomes due and payable, and, consequently, in cases where the furnishing of such proofs of loss have not been excused or waived, postpones the time within which suit may be brought thereon.</p> <p>11. In an action on a policy of fire insurance the plaintiff may, in different counts of his declaration, aver both a waiver by the , company of the proofs of loss, and a compliance with the provisions of the policy as to such proofs on his part, and may rely upon that one of the counts that the evidence establishes. The plaintiff may also insist that proofs of loss have been waived, notwithstanding the fact that he, later, furnishes such proof, from abundance of caution.</p> <p>12. A special count in a declaration for interest upon the amount • claimed as principal, while not, perhaps, necessary for the recovery of interest, is not an improper pleading, and is not subject to demurrer.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Volusia County.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Brevard county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Brevard county..</p>

<p>'This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Brevard county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Brevard County.</p>

<p>This case was decided by Division Á.</p> <p>Writ of error to the Circuit Court for Brevard county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Volusia county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Volusia county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Brevard county.</p>

<p>This case was decided by Division A.</p> <p>Writ of error to the Circuit Court for Volusia county.</p>

This case was decided by Division B. Writ of error to the Circuit Court for Pasco county. The facts in the case are stated in the opinion of the court.

<p>1. A defect in the return of the service of a writ summons ad respondendum is not reached by a motion to quash or abate the writ, but the motion should be addressed to setting aside the service.</p> <p>2. A demurrer to a plea which neither traverses nor confesses and avoids the allegations of a declaration, and which seeks by indirection and inference to avoid the trespass complained of, is properly sustained.</p> <p>3. It is not erroneous in an action of trespass to refuse leave to a defendant to file pleas which set up facts that may be shown under the general issue of not guilty.</p> <p>4. In an action of trespass for seizing, taking and carrying away goods and chattels, and converting them to defendant’s use, where it was shown by the plaintiff that his goods and chattels were seized by the sheriff under a writ of attachment issued by the defendant, on the 18th of December, 1895, which writ was dissolved on the 3rd of January, 1896, it is competent for the defendant to show, under the plea of not guilty, that other writs of attachment against the defendant were issued by other persons with whom defendant in no way colluded, at or about the same time as his own, and the several writs levied by the sheriff on the same goods of defendant at or about the same time, and that after the dissolution of defendant’s writ the goods of plaintiff which were of a perishable nature were held by the sheriff under such other writs and were sometime afterwards sold by order of the clerk on the petition of such other party or parties; and on this showing the proper measure of damages will be the difference in the market value of the goods on the day when defendant’s writ of attachment was levied and their value on the day when such writ was dissolved.</p> <p>5. A special appearance combined with a motion to quash the writ of summons, supported by affidavits filed in support thereof and in opposition thereto and the rulings of the court thereon, and exceptions thereto, and also a motion to file additional pleas, with the pleas offered therewith, and the order of the judge denying the motion, and exceptions to this ruling, are matters proper to be exhibited to the appellate court only in and by a bill of exceptions.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Manatee county. The facts in the case are stated in the opinion of the court.

This case was decidecl by Division A. Writ of error to the Circuit Court for Duval county. Statement. The plaintiffs in error sued the defendant in error in the Circuit Court of Duval county in tort for damages for ■ deceit and misrepresentation as to the financial responsibility of one B. H. Powell, the declaration as amended being as follows : “State of Florida, .Duval County.

This case was decided by Division A. Writ of error to the Circuit Court for Manatee county. The facts in the case are stated in the opinion of the court.

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

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

This case was decided by Division B. Writ of error to the Circuit Court for Volusia county. Tbe facts in the case are stated in the opinion of the court.

This case was decided by the court Bn Banc. Appeal from Circuit Court for Hillsborough county. Statement.

This case was decided, by the court Bn Banc. Appeal from Circuit Court for Volusia county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from Circuit Court for Lake county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from Circuit Court for Lafayette county. Statement. The appeal entered in this cause is from an order of the Circuit Judge setting aside a final decree of foreclosure of mortgage theretofore entered against the appellees, and permitting them to file an answer in the cause. The bill for foreclosure was filed July 21st, 1900, with process thereon returnable to the rule day in August.

This case was decided by Division B. Appeal from Circuit Court for Gadsden county. Statement. The appellant, complainant below, filed a bill on June 25th, 1895, against John V. Brown, the testator of the present defendants, alleging a partnership between them terminated by the act of the defendant, and praying an accounting.

This case was decided by Division B. Appeal from Circuit Court for Sumter county. Statement. The appellee, complainant below, filed a bill for foreclosure of mortgage, making as parties defendant thereto the administrator, widow and heirs of the mortgagor, and the appellants.

This case was decided by Division B. Appeal from Circuit Court for Columbia county. The facts in the case are stated in the opinion of the court.

This case was decided tty Division B. Appeal from Circuit Court for Alachua county. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appeal from Circuit Court for Hillsborough county. Statement. The county commissioners of Hillsborough county on the fourteenth day of August, 1901, passed a resolution for the issuance of county bonds to the amount of $400,000 for building hard surface highways and funding the outstanding indebtedness of the county.

This case was decided by Division B. Appealed from the Circuit Court for Hillsborough county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from Circuit Court for Alachua county. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from the Circuit Court for Jackson county. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from Circuit Court for DeSoto county. The facts in the case are stated in the opinion of the court.

<p>1. A widow by qualifying as executrix of her husband’s will, and by uniting with her co-executor in foreclosing mortgages of her husband’s estate, and by buying in the property for the use of the estate, and who has done no other act as executrix which would make it impracticable for her to repudiate the will with- ■ out prejudice to the rights of others, is not thereby estopped from electing within twelve months to take dower or a child’s part in the estate of the deceased husband.</p> <p>2. If, under the circumstances stated in the above headnote, a widow elects to take a child’s part in her husband’s estate, her statutory rights in the estate of her husband are superior to those of legatees under the will.</p> <p>3. If, under the circumstances stated in the first headnote, a widow elects to take a child’s part in her husband’s estate, she takes a child’s part subject to the debts of the estate and the cost of administration up to and including the point of actual distribution.</p> <p>4. If, under the circumstances stated in the first headnote, a widow elects to take k child’s part in her deceased husband’s estate, and there is one child and heir of such deceased husband, the widow is counted as a child, and she will be entitled to one-half of the estate, after the payment of the costs of administration, as stated in the foregoing headnote.</p> <p>5. A bill by the widow which sets up the fact of the marital relation, the decease of the husband, that he left surviving him one child, that he left a will, that the will contained various legacies and trusts, that the widow was named executrix in the will, that she qualified as such, and that within twelve' months after the probate of the will she elected to take a child’s part in the estate of her husband, and praying that she be decreed to be entitled to a child’s part, that the same be set apart to her and her share be delivered into her possession, that certain portions of the property can not be partitioned, but will have to be sold for partition, that the surviving child and heir is a legatee under the will, and is of unsound mind, and has been so adjudicated to be, and that some of the legatees are minors, sets up a state of facts which call for the ascertainment and adjudication of the rights and interests of the parties in a court of equity.</p>

This case was decided by the court Bn Banc. Appeal from Circuit Court for Hillsborough county. The facts of the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from Circuit Court for Escambia county. Statement.

This case was decided by Division B. Appeal from Circuit Court for Lee county. The facts in the case are stated in the opinion of the court.

<p>This case wás decided by Division B.</p> <p>Appeal from Circuit Court for Hillsborough county.. ■</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Appeal from the Circuit Court for Escambia county. Statement.

<p>Appellate Practice — Appeal After Lapse of Time Allowed By Law.</p> <p>Chapter 4130, laws of 1893, limits the time within which appeals may be taken from final decrees in chancery to six months after the entry of the decree appealed from. Where such an appeal is taken to this court after the lapse of such limited time, this court acquires thereby no jurisdiction over the cause and such appeal will be dismissed.</p>

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

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

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

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

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

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

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