Volume 53 — Florida Reports

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

This case was decided by Division B. Writ of error to the circuit court for Jackson county. STATEMENT I. J. Danford was indicted and tried at the Spring term of the circuit court of Jackson county, Florida, 1906, for the murder of Coley Clark on the 15th of March, 1906, by shooting him with a shot gun loaded with powder and balls. He was convicted of murder in the first degree with a recommendation to mercy.

<p>This case was decided by Division B.</p> <p>Writ of Error to the Criminal Court of Record for Orange County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

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 Du-val 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 Taylor County. The facts in the case are stated in the opinion of the Court.

<p>1. In a prosecution for homicide a charge that even though it be found that the defendant may have made statements as to the manner of the death different from his testimony at the trial, there is no presumption of law from his doing so that his testimony is untrue, was properly refused, there being mo such presumption of law, and the credibility of the testimony -was for the jury to determine.</p> <p>2. Intent is not an essential element of the statutory definition of manslaughter when committed by culpable negligence; and charges predicated upon the theory that intent is in every case essential to the statutory crime of manslaughter are properly refused.</p> <p>3. The refusal to charge that “culpable negligence is not merely an omission to use ordinary caution and care, but must be the result of an intentional act or acts which are done without the exercise of ordinary care or caution,” is not error, since eujpable negligence is not necessarily the result of an intentional act.</p> <p>4. Where there is no error, and there is evidence to sustain the verdict, it will under the settled rule not be disturbed.</p>

This case was decided by Division B. 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 J ackson 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 Sumter County. The facts In the case are stated in the opinion of the Court.

<p>1 Where an indictment charges that the defendant did unlawfully make an assault on a female child under the age of ten years, “and her the said J. T. did unlawfully carnally know and abuse,” the following charge to the jury is not erroneous: “The proof must show penetration of the female parts to some extent by the male organ. It is not necessary to prove emission of seed. Of course the fact of penetration must be shown by the evidence to the exclusion of and beyond a reasonable doubt;” and it is not erroneous to refuse the following instruction: “While, as the court has charged you, the slightest penetration of the female organs is sufficient to constitute rape, yet it must appear from the evidence on the part of the state that the male organ actually penetrated the genitals of the female, and the burden of proving what part of the female sexual organs constitutes the genitals is upon the state like any other material allegation of the indictment.” •</p> <p>2. Requested instructions inapplicable to the evidence are properly refused.</p> <p>3. Where requested instructions are covered by the chaige of the trial judge on his own motion, no error is commuted in refusing such instructions.</p> <p>4. The evidence is sufficient to support the verdict,</p>

This case was decided by. Division A. Writ of error to the 'Criminal Court of Record for Hills-borough 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.

<p>JL. Prior to the adoption of Special Rule 6 on the 2nd day of March, 1905, Rule 103, adopted at the April Term, 1873, governed in the preparation of transcripts and bills of exceptions in criminal cases. Special Rule 6 gives the plaintiff in error in criminal and habeas corpus cases the option to have the transcript of the record and bill of exceptions made up, settled and certified, either in accordance with Special Rules 1, 2 and 3, adopted on the 2d day of March, 1905, or in’ compliance with such Rule 103. The respective modes of procedure must not be blended, but one or other of such modes must be selected and followed.</p> <p>2. It is the duty of a party resorting to an appellate court to see that his transcript of record is properly prepared, in compliance with the rules of court, and to make the errors complained of clearly to appear.</p> <p>3. Whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness is a question for the discretion of the trial judge, and his ruling in that regard will not be disturbed by an appellate court, except in case of a manifest abuse of discretion or where the witness is admitted or .rejected upon an erroneous view of a legal principle.</p> <p>4. It is the duty of the trial court where an infant of tender years is offered as 'a witness, especially in a criminal case, to examine him and ascertain whether he has sufficient intelligence and understanding of the nature and obligation of an oath to be a competent witness, and such investigation should be carried far enough to madre the infant’s competency apparent.</p> <p>*5. Intelligence and not age is the proper test by which the competency of an infant as a witness must be determined, and where it appears that such infant had sufficient intelligence to receive just impressions of the facts respecting which he is to testify, and sufficient capacity to relate them correctly, and has received sufficient instruction to appreciate the nature and obligation of an oath, he should be admitted to testify.</p> <p>6. Where it appears to the trial judge that an infant offered as a witness does not sufficiently understand the nature and obligations of an oath, it is within his discretion to permit such infant to be properly instructed in that respect and afterward to be sworn, provided such infant be of sufficient age and intellect to receive instruction.</p> <p>7. The common law rule has been changed in this State, and belief neither in. a Supreme Being nor in Divine punishment is requisite to the competency of a witness.</p> <p>8. The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial, but, in laying the foundation for such impeachment, it is necessary to inquire of such witness as to the time, place and person involved in such supposed contradiction, before proof of such contradictions may be submited to the jury, the statute requiring that “the circumstances of the supposed statement, sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or ■not he made such statement.”</p> <p>9. When the defendant in a criminal case offers himself as a witness therein he thereby puts himself on the same footing as any other witness and may be examined, cross-examined or impeached as any other witness, but, while this is true, the state cannot introduce evidence to impeach the general character of the defendant, unless he has first put his character in issue.</p> <p>10. An application for a postponement or a continuance is addressed to the sound judicial discretion of the trial court, and the ruling of such court either granting or denying such application will not be- disturbed by an appellate court, unless an abuse of this discretion is clearly shown; but where such an abuse . is manifest, especially in a criminal case, it is the duty of an appellate court to interfere, in the furtherance of justice.</p> <p>11. It is error sufficient to reverse a judgment in a criminal case for the trial court to suffer counsel for the state, against proper objections of defendant, to state in his argument to the jury facts pertinent to the issue and not in evidence, or to comment upon facts calculated to prejudice • the defendant which have no bearing whatever upon the issues, and evidence of which would have been excluded, if offered, or to assume such facts to be in the case when they are not.</p> <p>12. Remarks of counsel in the argument of a criminal prosecution outside of the evidence and the reasonable bounds of argument, having no relation to the issues in the case and intended or calculated to excite the passions and influence •the minds of the jury against the defendant, should be promptly checked and prohibited by the trial court, and where such remarks are objected to by the defendant and the trial court overrules such objection and refuses to interfere, an exception to such ruling will be well assigned and will be sufficient ground for the reversal of the judgment. ,</p>

<p>1. A challenge to the array of petit jurors by a colored person upon trial charged with crime, properly raising the objection that the sheriff charged with summoning venires for petit jurors from the body of the county discriminated against persons of. color, solely on account of their color, in executing the venire, being based upon, allegations of fact not appearing in the record, if controverted by the state, must be supported by evidence on the part of the defendant, even though such challenge to the array is verified by the affidavit of the defendant.</p> <p>2. Where the defendant offers proof of a properly presented challenge to the array of petit jurors, and the state fails to join issue on the challenge, but demurs thereto, the allegations of the challenge are to be taken as true. The demurrer ought to be overruled and the state permitted to take issue thereon. The issue so raised is to be tried by the court on the proofs offered by the parties.</p> <p>3. The presumption is that those administering the laws have properly discharged their duty, and against any misconduct on their part until the contrary is made to appear.</p> <p>4. A defendant on trial, charged with crime, has no right, because of his color, to require the sheriff, in, executing a venire, to select or summon any number of colored! men to serve as jurors to try him upon a criminal charge. The law does not require that a colored man be tried for a criminal offense by a jury composed in whole or in part of colored men.</p> <p>5. The equal protection of the laws is not denied to colored persons by a law which makes no discrimination against the colored race in terms, but which grants a discretion to certain officers, which can be used to the abridgment of the rights of colored persons to serve on petit juries, where it is not shown, that the actual administration of the law was evil, but only that evil was possible under it.</p> <p>6. The mere fact that the sheriff, in executing a venire for petit jurors to try the defendant, who was a colored man, summoned only white' men to serve as jurors, and failed and refused to select any colored men, of African descent to serve on the jury which was summoned to try the defendant, is not of itself evidence of discrimination against persons of color, solely on account of their color; neither is it a denial to the defendant of the equal protection of the law as contemplated by the fourteenth amendment of the constitution of the United States.</p> <p>7. When 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 a venire, the 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 him from such special venire.</p>

This case was decided by Division- B. 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 Division B. 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 A. Writ of Error to -the Circuit Court for Citrus 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 Lee County. The facts in the case are stated in'the opinion of the Court.

<p>1. In an action against a railroad company for damages to> trees caused through its negligent communication of fire-from a locomotive to the lands of the plaintiff, where the engine charged with the fire is not identified, the plaintiff should be allowed to show that other engines of the defendant company started other fires at or about that time either before or after the destruction of the trees,, or emitted sparks, as tending to prove the possibility and consequent probability that some locomotive of defendant company caused the fire on the occasion stated.</p> <p>2. , Where the plaintiff; in his declaration, seeks to recover for damages by a firo alleged to have been negligently set by a locomotive of defendant on or about the 10th day of January, 1904, and the evidence shows that the fire which caused the damage was set by the locomotive on January 17, 1904, and there was no objection by defendant .at the trial to the testimony that the fire occurred on January 17, 1904, and defendant did not claim that he was surprised by the variance, or make any showing that he was misled to his prejudice in the preparation of his defense, or request postponement of the trial on account thereof, and made no objection to the form of the statement of time in the declaration, the court did not err in refusing to charge the jury that plaintiff cannot recover because of this variance between the declaration and the proof.</p> <p>3. There is no fatal variance between the allegation and proof where the declaration alleged that the defendant company, through its negligence, communicated fire to the lands of the plaintiff by and from a locomotive, which fire, so communicated from the locomotive, spread over ■ > '■ and upon the lands of the plaintiff and burned up and injured trees of the plaintiff, and the proof showed that the fire was not set by and from the locomotive directly, or in the first instance, to the land of the plaintiff, but the fire was negligently set by defendant’s locomotive upon the adjoining land of another, and spread thence naturally to the land of the plaintiff, and destroyed his trees. The fact that a fire set by defendant’s locomotive passes over lands of another before reaching plaintiff’s property, does not render defendant’s negligence any the less the proximate cause of the destruction of sueh property by fire.</p> <p>4. Where the setting of a fire by and from the locomotive of defendant was the proximate cause of the injury to plaintiff’s trees, it was none the less the proximate cause by reason of the change in the direction of the wind which was blowing at the time the fire was set, and which continued to blow without any extraordinary increase in its velocity until the' flames were carried by the wind to the trees of plaintiff and injured and destroyed them. . A simple change, in the .direction of the wind is not an intervening cause that will prevent recovery.</p> <p>5. It is not error if the judge refuse to give instructions asked for, however pertinent, if the same in substance and effect have already been given by him to the jury.</p> <p>6. The provisions of section 3148 of the General Statutes of 1906, make proof of damage by fire from defendant’s locomotive prima facie evidence of negligence, and it devolves upon the railroad company to make it appear that their agents or servants have exercised all ordinary and reasonable care and diligence.</p> <p>7. An instruction that “one who owns property along side of the railroad must know that trains are expected to run with regularity, and if there are special risks arising from no want' of care in the proper equipment of engines and trains, those risks are not chargeable to the railroad, but are incident to the situation, and the extra care they demand devolves upon the other party, and the consequence of his not exercising it must fall upon him because the railroad is not in fault,” is confusing, misleading and argumentative, and the court did not err in refusing to so charge.</p>

This case was decided by Division B. 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 Duval county. STATEMENT. The plaintiff in error, who was plaintiff in the court below, sued the defendant in error in the circuit court in and for Duval county in an action of libel. There were three counts to the declaration.

This case was decided by Division B. Writ of Error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

<p>1. A purchaser of an assortment of cheap jewelry under a contract permitting a return for exchange but not for •credit, should act with reasonable promptness after possession passes to discover patent defects, and a plea to an action for the contract price showing that several months had elapsed before an alleged discovery that the goods were not as represented and offering no excuse for the delay will be subject to demurrer, there being no warranty that the goods would supply a specific want, nor real question of latent defects.</p> <p>2. Pleas on equitable grounds to a common law action setting up only legal defense are properly stricken.</p>

This case ivas decided by Division A. Writ of Error to the Circuit Court for Dadé County. The facts in the ease are stated in the opinion of the Court.

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

<p>1. A purchase made by one not a creditor is fraudulent and void as against creditors, even though the purchaser has paid an adequate consideration, where the seller has at the time a purpose or intent to defraud his creditors, or to hinder and delay them in the collection of their debts and the purchaser knew of such purpose or had knowledge of such facts or circumstances as would have induced an ordinarily prudent person to make inquiry, and which inquiry, if made with reasonable diligence woud have led to the discovery of such fraudulent purpose of the seller and the, buyer did not make such inquiry. If the purchaser has paid value and has not such knowledge, he is a ~bona fide purchaser, and will be protected as such.</p> <p>2. A person who receives property from an insolvent debtor in payment of an antecedent deht occupies a more favored position than a purchaser for a present consideration. A preferential transfer of property can not be declared fraudulent as to other creditors, although, the debtor in making it intended to defeat their claims, and the creditor had knowledge of such intention, if' the preferred creditor did not actually participate in the debtor’s fraudulent purpose. If the only purpose of the creditor is to secure his debt, and the property is>not worth materially more than the debt, the transaction is not frauduent. And this is so, although the creditor knows that the debtor is insolvent, and that the transfer is of all the debtor’s property, that there are other creditors, and the debtbor is actuated solely by a desire to defraud his own creditors, and that the effect of the debtor’s action will be to defeat them. But the creditor must act in good faith, for, if he takes the conveyance for the purpose of aiding in the fraud, it is void.</p> <p>3. If a creditor purchaser, in seeking to recover his debt, goes further and buys more than enough to 'pay his debt, there being no necessity for his so doing in order to secure his claim, and pays partly with his debt and partly in cash, he combines the character of a volunteer purchaser with that of a creditor, and is to be treated merely as a purchaser, and the rules relating to a volunteer purchaser must be applied to him. If the creditor purchases more than enough property to pay his debts, although he pays a consideration for the remainder, the sale is void, if he has actual knowledge of the debtor’s fraudulent intent, or knowledge of such facts or circumstances as would have induced an ordinarily prudent person to make inquiry, and which inquiry, if made with reasonable diligence, would have led to the discovery of such fraudulent purpose of the seller.</p> <p>4. There is an exception to the rule that a creditor buying more than enough property to pay his debt, paying with-his debt and partly in cash, becomes a volunteer purchaser, and that exception is this, that where, by agreement, the purchaser or seller applies the cash in payment of the other indebtedness of the seller, the sale being otherwise fair, the sale being bona fide and for a fair valuation', it will not be set aside. And the rules which apply to a creditor purchaser, where the debt is the sole consideration, prevail likewise in this case.</p> <p>5. In determining the correctness of instructions to the jury, they must be considered as a whole, and if as a whole they are free from error, an assignment, predicated on isolated paragraphs or portions, which standing alone might he misleading, must fall.</p> <p>6. The court charged the jury as follows: "If you find from the evidence in this case that Bush and Company were in failing circumstances, that they were practically insolvent, which fact was known to the bank, or which' John Trice, the president of the bank, with whom the trade was made, ought to have known, tha!t Bush and Company proposed to sell their goods to the bank, demanding four thousand dollars over and above their indebtedness to the bank, that Bush and Company intended at the time to so dispose of the four thousand dolars that their creditors could not reach it, or so that they could delay or hinder their creditors in the collection of their claims, that this fact was known to Mr. Trice, or by diligent inquiry, he could have discovered it, then the sale was fraudulent, and you should find for the defendant; provided, there were such circumstances attending the transaction, as to- raise the suspicion of the bona fide of the transaction, in the mind of a reasonably prudent man, or to put him upon inquiry.” Held, this charge is not erroneous, as leaving the jury to conclude that the transaction is to be judged solely by the constructive notice on the part of the purchaser, neither is it erroneous in that it permits a creditor to take goods in excess of his debt, and pay the debtor the balance.</p> <p>7. The giving of the following instruction was not error; “If you find from the evidence that, at the time of the transaction, Bush and Gompany had no intention of hindering, delaying or defrauding their other creditors, but intended to apply the four thousand dollars to the payment of a part of their honest debts, even if not enough to pay all of them, the sale was not fraudulent, and you should find for the plaintiff,” because if Bush and Company had no intention of hindering, delaying or defrauding their other creditors, then the alienation, of their goods would not be void as to creditors.”</p> <p>8. The court charged the jury as follows: “If you find from the evidence that, at the time of the sale, Mr. Trice was informed by Bush and Company, or by their attorney, whom he knew, and in whose integrity and veracity he had confidence, that it was the purpose of Bush and Company to appropriate the four thousand dollars to the payment of their just debts, even though these debts may have been owing to members of the Bush family, and there was nothing in the surrounding circumstances to arouse the suspicion of an ordinarily prudent man or to put him upon inquiry as to the purpose of Bush and Company, then the sale was not fraudulent, even though it may have been the secret intention of Bush, or of Bush and Company, to place the four thousand dollars beyond the reach of other creditors, and you should find for the plaintiff.” Held, this charge is not erroneous, in that it disregards the distinction between means of knowledge and actual knowledge of the fraudulent intent of the seller, since the court had, in other portions of the charge, fully instructed the jury upon the effect of the actual knowledge of the purchaser of the fraudulent intent of the seller upon the validity of the sale. Neither is this charge subject to the objection that it singles out and emphasizes isolated facts favorable to the plaintiff.</p> <p>9. The giving of the following instruction to the jury was was not error: “If you find from the evidence that the four thousand dollars paid Bush and Company in excess of their indebtedness to the bank was actually appropriated to the payment of the just debts of Bush and Company, even if those debts were due to members of the Bush family, and even if a large number of Bush and Company’s creditors were unpaid, the sale was not fraudulent, and you should find for the plaintiff.”</p> <p>10. Where the plaintiff in the circuit court brought an action of replevin against the sheriff to recover certain goods seized by him under attachments issued against the vendor of plaintiff, on the ground that the transaction between the plaintiff and its vendor was fraudulent as to the creditors of the latter, on the trial of the action of replevin, there being evidence to show that the plaintiff had paid a fair value for the goods, and there being no circumstances which would raise the legal presumption that the transaction was fraudulent, the burden of proving by a preponderance of the evidence that the transaction was fraudulent, was on the sheriff, and the court did not err in so instructing the jury.</p> <p>11. Where a creditor bought substantially all cf an insolvent debtor’s property for a fixed price of $14,000.00, that being a fair and adequate price for the property, every cent of which was paid, ten thousand dollars of said consideration being paid by the cancellation of a bona fide existing debt, and four thousand dollars being paid in cash to a third person upon the agreement that the latter sum would be paid to certain other creditors, and this sum was in fact so paid to them, the debtor or vendor reserving no benefit to himself or interest in the property, no element of trust appearing in the transaction, the transaction between the creditor and debtor was a sale of the latter’s property, and not an assignment for the benefit of creditors in contemplation of Section 2307 of the Revised Statutes of 1892.</p> <p>12. The court gave the following instruction: “A sale by a debtor in payment of and in discharge of his debt will be valid where the creditor obtains other property for which he pays cash, if such other property was not more than the debtor was e'ntitled to retain exempt from his other creditors, and no other property was reserved by him as his exemption.” Held, this instruction, though not relevant to the facts in the case, was not harmful to the plaintiff because the evidence proved that the debtor did not reserve as exempt any of the money he received in the sale of the goods.</p> <p>13. The relinquishment of the father’s claim to the earnings of his minor son may be established by direct evidence, or may be implied from circumstances. Evidence held sufficient to warrant the submission to the jury of the question of emancipation of minor sons.</p> <p>14. Requested instructions, leaving out of consideration any participation in, or knowledge, actual or constructive, on the part of the purchasing creditor of the fraudulent intent of the vendor debtor, are erroneous, and it was not error for the court to so modify the same.</p> <p>16. An instruction to the effect “that under the facts and circumstances of this case, the plaintiff, the Citizens Bank and Trust Company, is chargeable with knowledge of all facts that it could have ascertained in respect to the sale of the property in controversy by the exercise of reasonable diligence,” was properly modified by the court so as to read: “Provided, you further find that the circumstances were such as to put the bank on inquiry.”</p>

This case was decided by Division A- 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 Division. B. Writ of Error to the Circuit Court for Washington • 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 Hillsborough County. The facts in the case are stated in the opinion of the court.

<p>1. In an action of ejectment where the defendants are in possession of the lands in controversy the plaintiffs cannot recover unless they show title in themselves or prior actual possession of the lands and ouster.</p> <p>2. Under Chapter 142 of the Laws of Florida, approved Jam uary 8, 1848, adverse possession for the term of seven years was necessary to acquire a title by possession.</p> <p>3. Chapter 1271 of the Laws of Florida suspended on December 13, 1861, the operation of the statute of limitations under which title to lands by adverse possession could be acquired, and such suspension continued until 1872.</p> <p>4. If a deed conveying lands purports to have been executed by an officer of court under a decree and it is sought to use the deed in evidence as title to the lands, the power or authority to make the deed must be shown unless waived.</p> <p>5. Where the burden of proof is on the plaintiffs, and, on the issues made, the evidence is not legally sufficient to sustain a judgment for the plaintiffs, and a judgment is rendered for the (jefen'dants, the trial court is not justified in granting a new trial on 'the ground that the verdict is contrary to the evidence.</p> <p>G. In an action of ejectment where the evidence shows that the ancestor through whom the plaintiffs claim title as heirs went into possession of the lands in controversy as a squatter and without claim of title in 1842 or 1843 and remained in possession until about 1863 or 1864, that such ancestor held possession of the lands under color of title from January, 1858, till he left the lands about 1863 or 1864, no title by adverse possession is Shown, especially when the statute of limitations under which title by adverse possession for a period of seven .years could have been acquired, was suspended in 1861 and remained suspended until long after the possession .of the lands had been relinquished, there being no showing that the lands were thereafter occupied by the ancestor or the plaintiff, or-by any one for them.</p>

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 co-urt.

This case was decided by Division B. Writ of error to tbe circuit court for Alachua county. STATEMENT. L. O. Gracy, tlie plaintiff in error, hereinafter described as the plaintiff, in June, 1905, brought a suit at law for damages against The Atlantic Coast Line Railroad Company, the defendant in error, hereinafter described as the defendant, in the circuit court of Alachua county.

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

<p>1. The sequestration of witnesses from the court room during a trial, is a matter for the exercise of a sound judicial discretion by the trial court, and its action will not be disturbed unless it appears there has been an abuse of such discretion.</p> <p>2. A party to a cause should not ordinarily be excluded from the court room because he is also a witness, and this doctrine applies to the agent of a corporation whose duty it is to look after the interests of the corporation in the case on trial, but where such an agent is not excluded from the court room during the .trial, and is not put on th© stand as a witness, and nothing was offered to be proved by him, the corporation does not show any injury of which it can complain because the court refused to except the agent from an order excluding all the witnesses from the court room during the trial. *</p> <p>3J Where a declaration in an action against a railroad company for 'damages alleges that plaintiff “had occasion to walk a short distance on the railroad track of the defendant,” and was struck and run oyer by one of its engines, such allegations are sufficient to authorize him to testify that at the time and place of the alleged injury he was walking on the track of the defendant railroad.</p> <p>4. A witness who had “railroaded” for 16 years, and one who had been traveling on railroad trains for 20 years, may give their opinions as to the speed at which a train was running, they being present, and seeing the moving train.</p> <p>5. The city of Lake City is authorized by its charter, as well as by general law, to pass an ordinance' prescribing the speed of trains and engines within the corporate limits of said city, not in conflict with Section 2264,- Revised Statutes of 1892, but under said section such an ordinance can not apply to the speed of a train running on a track located on a “traveled street,” if it conflicts therewith.</p> <p>6. Certain language used by the plaintiff’s attorney in his address to the jury, held to be an abuse of the privileges of counsel, upon which the comments of the judge, to the jury, were not sufficient to remove the prejudice which such language was calculated to create.</p> <p>7. A requested instruction predicated upon an hypothesis which limited the grounds of possible negligence to one, when under the evidence there may have been others, for the consideration of the jury, is properly refused.</p> <p>8. Under Chapter 4071, Laws of 1891, when an action is brought against a railroad company for damages for personal injury, the burden of proving the injury is on the plaintiff, and this being shown, the burden of showing absence of negligence is on the defendant.</p> <p>9. There is no rule of law that it is not negligence for an^ engineer to run his engine within a municipal corporation over a street crossing (not through the traveled streets) at the rate of twenty miles an hour if he gives notice by ringing his bell and has his engine under control, and exercises such diligence as is necessary to be observed under the ordinary necessities of the company’s business. The question of negligence must always depend upon the circumstances of each particular case.</p> <p>10. Section 2264, Revised Statutes of 1892, requiring sign boards at or near the crossings of highways, does not apply to the streets of an incorporated town or city, nor does the speed limit therein provided for apply to any streets except those traveled streets of a city upon ■or through which a track is located.</p> <p>11. A railroad company has not only a right, but it is its duty to operate its trains, and while it should always observe reasonable precautions to prevent injury, it is not required to observe unreasonable ones. People who walk on the tracks must take notice of these considerations, and should exercise a prudence commensurate with the known risks. If they fail to do so and are injured, they are themselves guilty of negligence, and in order that damages may be recovered by any one so injured, negligence of the railroad company must have existed and must have been the proximate cause of the injury. For if the heedlessness or lack of prudence of the party injured was the sole proximate cause of the injury he cannot recover damages, however negligent the railroad company may otherwise have been.</p>

This casé was decided by Division A. 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 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>An oral contract which is agreed to be reduced to writing is' not complete until fully executed by delivery of th« writing.</p>

<p>Where the members of the appellate court are equally divided. in opinion as to whether a judgment on writ of error-should be reversed or affirmed, and there is no prospect of a change in the near future of judicial opinion or in the membership of the court, the judgment should be affirmed so as not to unduly prolong the litigation.</p>

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. Writ of error to the circuit court for Jackson county. STATEMENT. The defendant in error brought an action in the circuit court for Jackson county against the Western Union Telegraph Company for damages for the failure to transmit and deliver a correct copy of a telegram received from the plaintiff for transmission.

This case was decided by Division A. Writ of error to the circuit court for Alachua county. The facts in the casé 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 the court en banc. Writ of error to the circuit court for Alachua county. STATEMENT. The defendant in error sued the plaintiff in error in an action for personal injuries, in the circuit court of the eighth judicial circuit for Alachua county. The case was tried at the fall term, 1906, and the verdict was rendered on the first day of December, 1906, the last day of the term of court.

This case was decided by Division A. Writ of Error to the Circuit Court for Gadsden 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 Circuit Court for Hernando 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 Duval County.</p> <p>The facts in the case are stated in the opinion of the court-</p>

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 B. Writ of Error to the Circuit Court for Citrus 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 Duval County. The facts in the case are stated in the opinio'n of the Court.

<p>This case was decided by Division A.</p> <p>Writ of Error to the Circuit Court for Santa Rosa County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of Error to 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 A. Writ of Eri’or to the Circuit Court for Wakulla. County. The facts in the case are stated in the opinion of the court.

<p>By the Court En Banc.</p> <p>Application for Admission to the Bar.</p>

<p>1. The common law writ of mandamus may be issued to specifically enforce the performance of a duty imposed by law upon a railroad corporation where no other adequate remedy is provided by law.</p> <p>2. The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy, therefore two .prerequisites must exist to warrant a court in granting this extraordinary remedy: first, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and,, second, that the law affords no ojther adequate or specific remedy to secure the performance of the duty which it is sought to coerce.</p> <p>3. When a state confers upon a railroad corporation the rights of a common carrier, the law imposes upon such corporation the duty of providing all facilities, and of operating them so as to adequately meet all reasonable requirements of the service it engages to render. This duty is implied by law in conferring the franchise, and privileges of a common carrier or in permitting their use, whether the provisions of the grants be mandatory or merely permissive; and the acceptance or exercise of the rights carries with it the duty of properly rendering the public service ■undertaken by virtue of the rights conferred or permitted to be exercised.</p> <p>4. The power and duty of a state to require the property of a common carrier corporation devoted to the public service within its borders to be maintained in a reasonably safe and adequate condition, and to be properly operated for rendering the public service to which the property is devoted by its corporate owner, are inherent and reserved in the state for the necessary protection and benefit of the lives and property within its territory.</p> <p>5. Whether or not the property devoted by a common carrier railroad corporation to the public service which it is authorized to perform, is adequate, and is being operated in a reasonably safe and convenient manner for the proper rendering of such public service, may be determined by the courts when the question is duly presented by the state through its proper official representative; and in determining the question, any legal method of ascertaining the material and essential facts may be adopted which is best suited to the case.</p> <p>6. In determining whether the roadbed, 'track, rolling stock and other equipment of a common carrier railroad corporation is reasonably sufficient, and is being maintained and operated in a reasonably safe and adequate condition, and is being managed for the proper rendering of the public service that the corporation has undertaken to perform, the conditions under which the service is being rendered, the character and extent of the service, its reasonable requirements, and the means, facilities and methods best suited to such service in common use, will be considered by the court, together with any other material and pertinent matters available.</p> <p>7. The duty of providing a reasonably safe and sufficient roadbed, track, equipment and facilities, and of maintaining and operating the property in a proper condition for rendering safe, prompt and adequate service and of actually rendering to the public such service without unjust discrimination, being required for the public good and contemplated by law, and imposed upon a common carrier railroad corporation in permitting it to exercise the franchises and privileges of a common carrier, may be enforced by mandamus in a proper case upon the relation of the attorney general when no other dequate remedy is provided by law.</p> <p>8. While a discretion is allowed a common carrier corporation in the means and manner of the discharge of the duties it owes to the public, such discretion must be exercised in good faith and with reasonable regard for.the requirements of the public service. When all the necessary facilities are furnished and operated so as to reasonably meet the just requirements of the public service the law in that regard is satisfied.</p> <p>9 The mandatory part of a writ of mandamus should conform to the allegations of the writ and it should not in. general require more to be done than is justified by the allegations of the writ. Where the mandatory part of the writ, taken with its allegtions, is not so definite and specific that its performance can be readily enforced by the court, a peremptory writ will not be issued.</p> <p>10. When it is sought by mandamus to compel a railroad company to do any act in relation to the equipment and operation of its road, the courts, as a general rule, will not interfere except where the act sought to be enforced is specific.</p> <p>11. The roadbéd and track of a railroad have the elements o£ stability, and it can be readily ascertained when they are put in the condition required by specific allegations and commands in mandamus proceedings. But in the nature of things there can be no fixed standard for the number of engines and cars that will be sufficient to move the traffic along the different lines of a railroad company, as the requirements of the service may greatly and rapidly fluctuate from time to time. A large discretion in such cases must be left to the management of the road and the supervision of the state tribunal charged with that duty.</p> <p>12. The proceedings by mandamus can only be resorted to when there is no other adequate legal remedy to accomplish the purpose sought thereby.</p> <p>13. When the court will not enforce the mandate of an alternative writ as it is framed, a peremptory writ will not issue thereon, since the'writ must he enforced as a whole if at all.</p> <p>14. An alternative writ of mandamus may he amended.</p>

This case was decided by the Court En Blanc. This is a case of Original Jurisdiction. STATEMENT. Within the time allowed by the court by its order made February 20th, 1907, the attorney general presented the following alternative writ on February 27th, 1907. “The State of Florida to the Atlantic Coast Line Railroad Company.

This case was decided by the Court En Banc. This is a .case of Original Jurisdiction. STATEMENT. The second amended alternative writ of mandamus filed in this cause is as follows: “The State of Florida to the Atlantic Coast Line Railroad Company.

This case was decided by Division B. Appeal from the Circuit Court for Levy County. STATEMENT. The Wylly-Gabbett Company, a corporation, on the 8th day of August, 1904, executed a trust deed in the nature of a mortgage to George W. Owens and C. L. Heller upon upwards of forty-one thousand acres of timbered lands in Levy county, Florida, besides other properties, to secure a large indebtedness due from the said corporation to various creditors.

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 the Circuit Court for Polk County. STATEMENT.

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

This case was decided, by Division B. Appeal from the Circuit Court for Hernando County. STATEMENT.

This case was decided by Division B. Appealed from the Circuit for Citrus County. STATEMENT.

This case was decided by Division B. Appeal from the Circuit Court for Manatee 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 Taylor 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 Lake County. The facts in the case are stated in the Opinion of the Court.

This case was decided by Division B. Appeal from the Circuit Court of Volusia 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 the Circuit Court for Hillsborough County. STATEMENT.

This case was decided by Division B. Appeal from the Circuit Court for Levy County. STATEMENT. Held: doth hereby grant, bargain convey, assign, transfer, confirm, set over and deliver unto the trustee all the following properties, to wit: All and singular the properties of the Company, real, personal and mixed, situate, lying and being in the county of Levy in the state of Florida, including the following, to wit: A. All those…

This case was decided by Division B. Appeal from the Circuit Court for Jackson County. STATEMENT.

This case was decided by Division B. Appeal from the Circuit Court for Santa Rosa County. STATEMENT. On the 7th day of July, 1902, William Boyett filed his amended bill for specific performance of a contract to convey real estate. So much of the bill as it is necessary to quote here is as follows: • “2nd.

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

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

<p>This case was decided by Division A.</p> <p>Appeal from the Circuit Court for Marion County.</p> <p>STATEMENT.</p> <p>On August 23rd, 1905, the appellee, or complainant, filed in the circuit court for Marion county a bill against the appellants for partition of certain described lands. The bill in substance alleges that Simon Pinkney died seized and possessed of the land; that he died intestate, leaving as his legal heirs Henry Pinkney, a son, and An-nett Williams, a daughter; that Henry Pinkney by warranty deed dated August 2, 1905, conveyed to complainant all his right, title and interest as such heir at law of Simon Pinkney in and to said lands ; that the salid Annett Williams on July 21, 1905, procured' and had issued to herself a tax deed to said land which complainant avers is null and void as to the interest of complainant in and to said lands, and amounts to the payment of taxes thereon; that said Annett Williams in procuring said pretended tax deed expended the sum of $31.00, and that complainant is willing and offers to refund the sum of $15.80, being one-half of all taxes paid on said lands; that the complainant is the owner of an undivided one-half interest in the said lands and the said Annett Williams is the owner of an undivided one-half interesst in the said lands'. Partition is prayed.</p> <p>On November 6th, 1905, the defendants filed a plea as follows: “Comes now the defendant Annett Williams and Milo Williams and show to this honorable court, that the court is without jurisdiction to hear and determine the above styled cause, because these defendants say, that at the time of the commencement of this suit, and long before, and ever since, the defendant Annett Williams was in open, notorious, hostile and adverse possession of the said lands described in the complainant’s bill of complaint, claiming title to the whole tract of said land, by a title adverse and hostile to the- claim of the complainant, and of all other persons, and that the said Annett Williams had, by the exercise of acts of ownership and dominion over said lands, at the time aforesaid, evidenced her whole seizin of the said lands, and of each and every part of the same: Wherefore, these defendants say that this honorable court is without jurisdiction to hear and determine the rights of the parties herein by partition.</p> <p>This plea was on March 30, 1906, overruled and defendants were allowed till April 20, 1906, to plead over or answer. On the 24th day of April the following amended plea was filed:</p> <p>“Comes now these defendants and for a plea to the complainant’s bill of complaint herein, says, that this court is without jurisdiction to hear and determine the above styled cause, because these defendants say, that at the time of the commencement of this suit and long before and ever since, the defendant Annett Williams was in open, notorious and hostile possession of the said lands described in the complainant’s bill of complaint, claiming title to the whole tract of said land, by a title adverse and hostile to the claim of the complainant herein, and all other persons, that is to say by deed from the clerk of the circuit court dated the 21st day of July, 1905, and recorded in the public records of Marion county, Florida, and that the said Annett Williams had by the exercise of acts of ownership and dominion over the said land at the times aforesaid, evidenced her sole seizin of the said lands, and of each and every part of the same; wherefore, these defendants say that this court is without jurisdiction to hear and determine the rights of the parties herein named by partition.”</p> <p>On June 4th, 1906, the court made the following decree: “This cause coming on to be heard upon the amended plea filed herein on the 24th day of April, A. D. 1906, and the same was argued by the solicitors for the respective parties, complainant and defendant, and upon consideration thereof the court is of the opinion that the said plea is insufficient; therefore, it is considered, ordered and adjudged and decreed that the said plea is insufficient and the same is hereby overruled.</p> <p>The defendant asked for further time to answer the bill of complaint herein, which is hereby denied.</p> <p>Thereupon complainant made application for final decree, after litigation of the cause, whereupon the court proceeded to ascertain and adjudicate the rights and interests of the parties by hearing upon pleadings and proof. Whereupon the complainant produced! and offered in evidence original deed from Henry Pinkney to W. W. Clyatt dated August 2nd, 1905, and conveying all right, title and interest of said Pinkney to the property described in the complaint to said W. W. Clyatt, which said deed was received and filed in evidence, and it appearing to the satisfaction of the court by the pleadings and proof that the said W. W. Clyatt owns and is entitled to an undivided one-half interest in the N. -J of the S. E. { of the S. W. {: of section 8, township 14 south, range 20 east, and that the defendant Annett Williams owns and is • entitled to an undivided one-half interest in said property.</p> <p>Therefore, it is further considered, ordered, adjudged and decreed that the said W. W. Clyatt owns and is entitled to an undivided one-half interest in and to the said N. i of S.E. jr of S.W. £ of Sec. 8,Twp. 14 S.,R. 20 E.,and that said Annett Williams owns the remaining one-half interest in said land, and the same is ordered partitioned and J. D. Ferguson and Y. M. Seckinger and S. J. McOully be and they are hereby appointed as commissioners to make such partition, allotting the complainant, W-. W. Clyatt, a one-half of said land according to the quantity and value, and to the defendant, Annett Williams, a one-half of said land, according to quantity and value; the said commissioners shall after taking the prescribed and required oath, proceed to make partition of the said property as aforesaid, and shall after having made such partition make report of the same in writing to this court.</p> <p>It is further ordered and decreed that the complainant’s solicitor be and he is hereby allowed, upon the proof thereof made herein, the fee of fifty dollars as a reasonable fee for his services herein, and that the defendant, Annett Williams, be and are bound and liable to pay one-half thei*eof and one-half of the other costs and charges, arising from this suit for partition; and that said W. W. Clyatt be and is bound and liable for one-half of all costs and charges arising from this suit for partition; and that decree shall be binding on all the goods and chattels and lands and tenements of each of the respective parties, complainant and defendants, for their respective shares of said costs and charges, or in the event of a sale of the said land under the order, of this court, in this proceeding, then the. same shall be paid or retained out of the money arising from such sale and due and belonging to the respective parties who ought to pay the same, provided the same be sufficient to satisfy the said costs and charges.</p> <p>It is further ordered that the complainant pay into the registry of this court the sum of $16.90,- the amount due the defendants for taxes paid by them on said land; the same to be paid to the defendants or their solicitor of record upon the filing with the clerk proper receipt therefor, after the defendants have complied with this decree insofar as it concerns the payment of their respective share of said costs and charges and in the event of failure or refusal of defendants to pay their share of said costs and charges within 30 days from the day of this order, then the said clerk is ordered to pay and apply the said sum of money to the satisfaction of the amount due by defendants for their share of said costs and charges,, taking and filing in record the proper receipts for the-same.</p> <p>It is further ordered that this cause be retained for-such further order and proceedings as may be necessary.</p> <p>Done at chambers and ordered this 4th 'day of June,, A. D. 1906. W. S. Bullock, Judge.” .</p> <p>The following petition for rehearing, sworn to by counsel, was filed June 6th, 1906: “Comes now the defendants in the above styled cause by their solicitor- undersigned, and show to the court that upon the hearing of the plea filed herein by these defendants on the 24th day of April, 1906, the court overruled the said plea of these-defendants, and instructed the solicitor for the complainant to draw an order overruling the said plea. Whereupon the solicitor for this dejfendant then and there requested of the court leave to put in an answer to the complainant’s bill, denying the allegations of the complainant’s bill, which said fact appears by the -statement in the decree of court rendered on the 31st day of' May, 1906.</p> <p>The defendants further show that the solicitor of this defendant then -and there requested the solicitor for- the complainant to show the solicitor of this defendant the order of the court overruling’ the said plea before the same should be presented to the court for signature of the court, and these defendants, show, that without notice whatever to these defendants, or knowledge on the part of the defendants or their solicitor of the fact that an application would be made for a decree in the ca^e settling the equities of the parties, the solicitor for the complainant, on the 31st day of May, 1906, without notice to these -defendants or their solicitor, and in the absence of these defendants or their solicitor, and without an opportunity to the solicitor for the defendants tu see the said order of court before the same was signed, presented to the court a decree settling the equities of these defendants, and at the same time, as these defendants are informed and believe, in the absence of these defendants and without notice or knowledge to them or their solicitor, introduced alleged proofs before the court to show title of the complainant and of the defendants, and procured from the court a decree disposing of and settling the rights of these defendants, in the absence of these defendants or their solicitor, and without notice of any kind whatever to the said solicitor for the defendants, or the defendants..</p> <p>Wherefore, these defendants pray an order of the court setting aside the decree of this court, made and entered on the 31st day of May, 1906, and that these defendants may be permitted to Ale .an answer to the complainant’s bill of complaint, and an opportunity to deny and dispute the title claimed by the complainant, and to show to the court all facts and circumstance's in relation to the said matters set up in the said bill of complaint, and that the court will permit a rehearing and reargument of the matters contained in the said decree on the 31st day of May, 1906.”</p> <p>On June 9th, 1906, the court made the following order: “This cause came on to he heard on an application of the defendant to open up the decree heretofore pronounced in this cause, and the same was argued by the solicitors for all parties, and the court having considered the same, and the facts being that on the final hearing both parties were before the court and argued the- cause, and on the court’s - announcing its judgment, the defendant then asked the court to be allowed further time to plead over, but did not state that there was' any meritorious defense, or tender any plea or answer, nor make known the existence of any; and the court denied the motion for further time, and announced its judgment and directed the solicitor for defendant to prepare a' decree,, and the same was done, and as recited in the motion the decree was after-wards signed. This motion for a rehearing and vacating the decree is denied. Done at chambers in Ocala,'Florida, June 9th, 1906. W. S. Bullock, Judge.”</p> <p>The report -of the commissioners having been filed June 18th, 1906, the court on June 18th, 1906, made the following final decree: “This cause coming on to be further heard, upon the report of the commissioners, who were heretofore appointed to make partition and division of the lands, in the order of appointment, between the complainant and the defendants, when it was made to appear to the court that the said commissioners; prior to their making partition of said property, were duly sworn by the clerk of the circuit court of Marion county, to faithfully and impartially execute the trust committed .to them-, and did proceed to 'view the said property and make a'division thereof, and have reported their acts to this court for confirmation, and it appearing to the court that such division is just, proper and equitable, it is, therefore, after consideration by the court, ordered, adjudged and decreed that said report of the commissioners be, and the same is héreby confirmed. And that the complainant, W. W. Clyatt, is vested in absolute fee simple in and to the N. W. of the S. E. 4- of the S. W. -j- of section 8, town-ship-14 south, .range 20 east; and the defendant, Annett Williams is vested in absolute fee simple in and to the N. E. of the S. E. -|r of S. W. ¿ of section 8, township 14 south, range 20 east.</p> <p>It is further ordered that the costs, as taxed by the clerk, amounting to $66.40, be, and the same is hereby allowed, one-half thereof to be paid by the complainant, and the other half by the defendant. It further appearing that the complainant, W. W. Clyatt, has paid all of said costs, it is therefore ordered that the land set apart herein to the said Annett Williams be held liable for the payment -of half of said costs, to wit, $33.20, and the same is ordered to be paid within ten days from this- date, and in default of such payment, the clerk is hereby directed to issue execution to be lévied upon the said N. E. of S. E. £ of S. W. of section 8, township 14, south, range 20 east, in favor of the said W. W. Clyatt. Done and ordered at chambers, this June 18th, A. D. 1906.</p> <p>W. S. Bullock, Judge.”</p> <p>A petition t-o vacate and set aside the final decree of June 18, 1906, and for rehearing was filed July 5, 1906, and overruled August 22, .19(56. On August 23, 1906, the following entry of appeal was filed and recorded in the chancery order book: “Comes now the defendants in the above styled cause, the said Annett Williams and Milo Williams, and take and enter an appeal from the final decree in,this cause of date June 18th, 1906, and from all interlocutory decrees rendered in said cause as against these defendants, unto the January term of the supreme court of the state of Florida, 1907, and to the first day thereof, to be begun and holden in the city of Tallahassee, Florida, on the second Tuesday in January, 1907. 'This appeal being taken and entered by the said Annett Williams and Milo Williams as defendants in said cause, against the said.William W. Clyatt, as complainant in said cause. H. M. Hampton, Solicitor for the defendants.”</p> <p>The errors assigned are: (1) Overruling the amended plea; (2) refusing to allow defendant further time to answer the bill; (3) proceeding to adjudicate the rights of the parties by hearing upon' pleadings and proof before the causé had been set down for a final hearing; (4) proceeding to adjudicate the rights of the parties without notice of final hearing being given .to the defendants; (5) proceeding to adjudicate the rights of the parties when no decree pro confesso had been entered; (6) denying petition for rehearing; (7) entering final decree without notice to defendants; (8) decreeing complainant is vested with fee simple title to one-half of the land when no decree pro confesso had been entered; (9) entering final «decree when there was no answer and no decree pro confesso; (10) denying petition for rehearing in order of August 22, 1906; (11) .denying petition for correcting the order of June 9,' 1906, by order of August 22, 1906.</p>

This case was decided by Division A. Appeal from the Circuit Court for Osceola 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 Columbia County. STATEMENT. Held: owned and controlled, if at all, by said complainant subject to. the rights of this, defendant, all of which complainant well knew at the time of the alleged consolidation and merger;” that it is not true that by virtue of the consolidation and merger the Atlantic Coast Line Railroad Company is and was at the time of the rendition of…

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

<p>I. In proceedings to foreclose a mortgage upon real estate where the answer does not deny the execution of the mortgage nor even call for proof, and admits all the allegations of the bill “not sufficiently answered, avoided or denied,” and states facts from which payment of the mortgage indebtedness may be inferred, which is new matter in confession and avoidance not responsive to the allegations of the bill and therefore not evidence, the defendants are required to produce some proof of the facts avered from which payment may prima facie be inferred before the plaintiff has to make proof of the allegations of the bill.</p> <p>2. In proceedings to foreclose a mortgage upon real estate where no testimony has been taken within the time allowed by the rule and the answer contains a confession and avoidance and no general denial a decree for the defendants on the ground that the complainants have not sustained the bill is erroneous.</p>

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

This case was decided by Division A. Appeal from tbe Circuit Court for Manatee 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 Gourt for Washington County. The facts in the case are stated in the opinion of the Court.

<p>This case was decided, by Division A.</p> <p>Appeal from the Circuit Court for D'ade 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 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 the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

<p>Appeal from Circuit Court, Citrus County; William S. Bullock, Judge.</p>