Volume 55 — Florida Reports

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

<p>The evidence examined and found sufficient to sustain a verdict of guilty of entering without breaking, a railroad car with intent to commit a misdemeanor.</p>

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 B. Writ of Error to the Circuit Court for Leon 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.

<p>Criminal Law—Motion in Arrest of Judgment—Conditional Pardon—Breach of Conditions in—Jurisdiction to Adjudge Breach of Conditional Pardon—Verdict in Second Larceny.</p> <p>1. Motions in arrest of judgment can be predicated only upon matters of record in the cause, and reach only infirmities in ' such record.</p> <p>2. If on a trial of the defendant upon an information charging larceny as a second offense, a conditional pardon from the first offense, can avail the defendant as a defense to any extent, it constitutes a defense simply in mitigation of the penalty to be imposed on conviction yof the second offense, and to avail the defendant as such mitigation of the penalty it should be proven at the trial for such second offense; it is too late to bring it forward for the first time after verdict in amotion for new trial, especially so when the information upon which he is tried alleges such former conviction, and that the crime it charges is a second offense.</p> <p>3. Where a convict has accepted a conditional pardon and has been released from imprisonment by virtue thereof, but has violated or failed to perform the conditions or any of them, the pardon, in case of a condition precedent, does not take effect, and, in case of a condition subsequent, becomes void and the convict may thereupon be re-a'rrested and compelled to undergo the punishment imposed by his original sentence, or as much thereof as he had not suffered at the time of his release.</p> <p>4. Where one of the conditions of a pardon of a convict for the crime of larceny is that he should thereafter during the term of his natural life lead a law-abiding life, and such convict is subsequently tried and convicted of a second larceny, such subsequent conviction is the most conclusive evidence ofthe violation of such condition in such pardon, and that the same was thereby annulled and rendered void and of no further force or effect for any purpose. Under these circumstances such a conditional pardon could not avail the defendant for any purpose or to any extent upon his trial for such subsequent second offense, either as ground for a new trial or otherwise.</p> <p>5. Where a conditional pardon of a convict stipulates that the pardoning board or the Governor, upon being made satisfied, ex parte, of a breach of its conditions, might declare it to be void and order the convict’s re-arrest and imprisonment on the original sentence, such stipulation, while valid and binding on the convict if accepted by him, does not furnish the exclusive method of adjudging a breach of such pardon and its consequent annulment. Any court of competent jurisdiction, notwithstanding such stipulation, may likewise enquire into any alleged breach thereof and may annul it if satisfied of such breach.</p> <p>6. On a trial under an information charging larceny and that it was a second offense, the following verdict: “We the jury find the defendant guilty of 2nd larceny,” Held, to be sufficient to support a judgment of conviction and sentence for the crime of larceny as a second offense of larceny.</p>

This case was decided by Division A. 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 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 Holmes 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 Walton 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 % the Court En Banc. 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. Duval County. Statement. At the April term of the criminal court of record for Dluval county an information was filed against D. A. Minor, the plaintiff in error, Howard C. Jones and Bryant Nichols, containing two counts.

<p>1. The constitution of the United States within its limited sphere is the supreme law of the land and it is the duty of all officials whether legislative, judicial, executive, administrative or ministerial to so perform every official act as not to violate the constitutional provisions.</p> <p>2. The duty rests upon all courts, State and National, to guard, protect and enforce every right granted or secured by the constitution of the United States whenever such rights- are involved, in any proceeding before the court and the right is duly and properly claimed or asserted.</p> <p>3. Where a discrimination has been made against persons because of race or color in a State statute or in any action of officials thereunder, in selecting, summoning or empaneling jurors, any person of the race so discriminated against who is to be tried on a criminal charge by such jurors may by proper proceedings duly taken for that purpose have the statute or the action taken thereunder annulled by the court as being a denial by the State to the person so being tried of the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. This rule is the law of the land as determined by the Supreme Court of the United States acting within its judicial power.</p> <p>4. The statutory provisions of this State for selecting, summoning and empaneling jurors do not discriminate, or authorize any discrimination, against any person for jury duty because of race or color. It is the duty of the officers charged with the adminstration or execution of such statutory provisions, to do so without violating the constitution of the United States, by discriminating against persons on account of race or color or by other illegal action. If in selecting, summoning or empaneling jurors, a discrimination is máde against any citizen on account of race or color, such action is not authorized by the statute, is illegal, and upon proper proceedings duly taken for that purpose, should be set aside and annulled in toto.</p> <p>5. The constitutional guaranty of equal protection of the laws does not give to any person a right to a jury composed in whole or in part of his own or of any particuliar race; but every person being tried in a court of justice is entitled to have a jury selected and summoned without illegal discrimination of any character. A large discretion is necessarily allowed the officers charged with the responsible duty of selecting jurors. This discretion should be carefully exercised so as to aid in the proper administration of the law by securing the best juries possible wdthout illegal discrimination against any citizen of the State qualified for jury duty under the law.</p> <p>6. Where the statute of a state in its terms does not abridge a privilege or immunity of citizens of the United States, or does not deny to any person the equal protection of the laws, the action of officials in executing the provisions of such statute is presumed to he legal. When illegal action by an official in the administration or execution of a valid statute is charged, such illegal action should be duly, properly, directly and distinctly . alleged, and if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases.</p> <p>7. Where testimony is admitted without objection in a judicial proceeding it is treated as received by consent. When so admitted the testimony, if not illegal, should be given all the probative force that its ordinary meaning and effect will afford. Testimony not essentially illegal that is received without objection and is not in any way controverted should be given all the probative force and effect that the meaning of the testimony naturally and ordinarily affords to the mind without technical requirements or limitations.</p> <p>8. While the presumption is that the officers have legally discharged their duty in selecting and summoning the jurors under statutes that do not authorize any illegal discrimination, yet this is but a presumption that may be overcome by evidence to the contrary upon a challenge to the panel of juries on the ground of illegal discrimination in selecting the juries. When such presumption is overcome by uncontroverted testimony, and no evidence is offered to show there was no illegal discrimination by the officers in selecting and summoning the juries, the challenge should be sustained.</p>

This case was decided by Division A. ■ Writ of Error to the Circuit Court for Suwanee 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 A. Writ of Error to the Criminal Court of Record for Escambia County. The facts in the case are stated in the opinion of the court.

<p>x. An abbreviation of a Christian name in an indictment does not constitute legal error where the use of the abbreviation for the full name has been so general and constant that the meaning of the abbreviation is universally understood and is a matter of general knowledge. Courts will take judicial notice of the usual abbreviations of Christian names in common use.</p> <p>2. Where a person is indicted by the name of “Jno” M., and the identity of the person who pleads to the indictment is not questioned, and the defendant uses upon the record the names Jno M. and John M. indifferently as his own, a verdict and judgment convicting him as “John” M. is not error, even though the verdict does not refer to the person found guilty as “the defendant.”</p> <p>3. Where M., J., C. and S. are jointly indicted for murder in the first degree and the verdict finds M. guilty of murder in the first degree and J., C. and S. guilty of murder in the second degree, the verdict is responsive to the chargeandit isnot necessary that the words "the defendants” be used in the verdict.</p> <p>4. While it is the duty of the court to charge the jury upon the law applicable to the evidence, the mere failure to charge the jury upon the law applicable to the evidence in one or more of its aspects, or as applicable to some portion of the evidence, will not in general be error in the absence of a proper request and exception to a refusal of such a charge.</p> <p>5. Where the evidence does not call for a charge upon murder in the third degree, the mere failure to give such a charge is not error. '</p> <p>6. Charges of the court have reference to and should be considered in connection with the evidence in the case; and, where the venue is clearly proven as laid, it is not error to merely fail to refer to the venue in the charge to the jury, when no request for a charge upon the venue is made.</p> <p>7. In a criminal prosecution when a premeditated design is an essential element of the offense charged, it is not ordinarily, in the absence of a proper request, incumbent upon the court to give to the jury a definition of the phrase “a premeditated design.” It is presumed that the jury understood the meaning of "a premeditated design.”</p> <p>8. Where in an indictment one person is charged with an unlawful killing from a premeditated design to effect the death, and other persons are charged with being present, aiding and abetting in such unlawful killing from such premeditated design, all are charged with murder in the first degree, and it is within the province of the jury to find one or more of them guilty * of murder in the second degree if the evidence justifies it.</p>

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.

This case was decided by Division B. Writ of Error to the Criminal Court of Record 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 Eri;or to the Circuit Court for Walton 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 Polk 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 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. Writ of Error to the Criminal Court of Record for Escambia county. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</p> <p>Writ of Error to the Criminal Court of Record L>Escambia 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 Leon 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.

This case was decided by the Court En Banc. This is a case of original jurisdiction. The facts in the case are stated in the opinion of the court.

<p>Appellate Practice—Habeas Corpus—Proceeding to Acquire AppeLLATE Jurisdiction op person in—sci. Fa. Ad. Aud. Errores.</p> <p>Section 1704 General Statutes of 1906, making provision for the acquiring of jurisdiction by. the appellate court over the person of a defendant in error by means of the recording of the writ of error in the minutes of the circuit court, does not apply to writs of error in habeas corpus cases, but in such cases the appellate court can acquire jurisdiction over the person of the defendant in error only by the proper service of a writ of scire facias ad audiendum errores, or by his voluntary appearance in such 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 Error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

<p>1. If a declaration fails to allege substantive facts that are essential to a right of action the trial court or the appellate court may take notice of such fatal defect and make proper disposition of the cause.</p> <p>2. In an action for breach of contract if no cause of action is alleged no damages can be recovered, a demurrer to the declaration upon the ground “that it does not appear that the plaintiff has sustained any damage” should be sustained.</p> <p>3. Where a contract for the sale of land contains a provision that "upon the payment of the first deferred payment, hereinafter mentioned, the second parties shall be entitled to take possession of any of said lands and cut the timber therefrom, provided same is not being used by the first (parties) for turpentine purposes,” a declaration in an action for a breach of the contract should contain allegations showing that the plaintiff is “entitled to take possession,” and that possession had been denied him to his injury.</p>

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

<p>1. Section 3266 of the general statutes in providing that every person convicted of carrying concealed weapons shall pay a conviction fee of ten dollars to be taxed as costs, fixes a legal fee that is unconditional as against the convicted person whether solvent or insolvent, and the proviso of the section exempting the counties from liability for such conviction fee when the convicted person is insolvent is in conflict with the constitutional provision that when the defendant is insolvent the legal costs and expenses shall be paid by the counties.</p> <p>2. Where it appears beyond all reasonable doubt that a statute is unconstitutional it is the duty of the court to so declare.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Duval 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 Hillsborough County. Statement.

<p>1. Pleas to a declaration in covenant denying performance by the plaintiff and repudiation by the defendant do not cast the burden of proof upon the defendant,</p> <p>2. In covenant against a corporation upon a specialty it is error to charge upon the theory that the corporation may bind itself by an instrument not under seal.</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 B. Writ of Error to the Circuit Court for Suwanee County. The facts of 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 Citrus 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 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 B. 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 Divison A. Wirt 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 Error to the Circuit Court for' Santa Rosa County. The facts in the case are stated in the opimon of the court.

<p>Real Estate Brokers—Commissions of—Variance Between Allegata and Probata—Evidence—Employment to Find A Purchaser Distinguished From Employment to Effect A Sale.</p> <p>1. There is a recognized distinction between the employment of a broker to find or procure a purchaser for the property of another and his employment to effect a sale of such property. In the one case the broker finds the purchaser and produces him to his principal, who negotiates and effects the sale with such purchaser; in the other case the broker not only finds the purchaser but negotiates the sale with him on the terms authorized by his principal, leaving nothing for the principal to do but execute the necessary conveyance of the title.</p> <p>2. In actions at law evidence offered in support of an allegation with which it appears to be variant should be excluded if objected to. Where a pleading alleges an absolute promise or agreement and the proof shows one that was contingent or conditional the variance is fatal.</p> <p>3. A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to conpensation until he effects a sale or procures from his customer a binding contract of purchase within the terms of his authority.</p> <p>4. A broker employed to find a purchaser to be entitled to conpensation must either produce to the owner a customer who is able, ready and willing to buy on the terms prescribed by the owner, or else take from the customer a binding contract of purchase within such prescribed terms.</p> <p>5. An agent or broker to whom is given the exclusive right to sell a tract of land belonging to another cannot recover commissions when the owner effects the sale, unless he has produced to such owner a purchaser ready, able and willing to buy on the terms specified in his contract of employment.</p> <p>6. Where a land-owner agrees with an agent to pay him a specified gross sum if he will procure a purchaser of a lot of land at a stipulated price, the agent cannot recover the sum agreed on as his commission without procuring and producing to the owner a purchaser able, ready and willing to pay such price; and, when-negotiations by the agent with one who contemplates buying at some price are not concluded, and the same are voluntarily broken off by the customer, and he afterwards purchases the property directly from the owner at a less price the agent is not entitled to recover.</p> <p>7. If an agent employed by the owner to find a purchaser for, or to effect a sale of, a tract of land knows that a customer found by him has the ability, and is ready and willing, to purchase the property at the price and on the terms that he is authorized to sell it, it is the duty of such agent promptly to notify his principal of such fact, then, after receiving such notice, if the principal, sells to such customer at a less price and on different terms than those given to the agent the latter will be entitled to his commissions. But if the -agent knows of the customer’s ability, readiness and willingness to purchase the property at the price and on the terms named in his contract of employment and withholds such knowledge from his principal it amounts to bad faith with his principal which forfeits his right to any commissions out of a sale effected by the principal in ignorance of such facts.</p>

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. >

This case was decided by Division B. 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 Suwanee County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by Division B.</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 Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Wrtit 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 'in Division A, Writ of Error to’ the Circuit Court for Liberty County. The facts in the case are stated' in the opinion of the ' court.

<p>x. It is the province and duty of the court to determine the relevancy and admissibility of evidence when the same is offered and objections are interposed thereto. If the relevancy of the evidence is not apparent at the time it is offered it is properly rejected, though if the party proposing it clearly makes the purpose for which it is offered appear and promises to follow it up and connect it with other evidence, which would make it material and relevant, the trial court, being authorized to regulate the order *01 the introduction of evidence, may re- . ceive it conditionally, but its discretion in such a matter either in receiving or rejecting evidence will only be interfered with by an appellate court where clearly abused.</p> <p>2. Where several written instruments are successively offered in evidence for the stated purpose of showing that certain timber rights were vested in the defendant and such instruments, taken as an entirety, fail to show such rights, and no offer or promise is made to connect the proffered instruments with other testimony so as to make them material and relevant, they are properly excluded.</p> <p>3. In determining the correctness of charges and instructions, they should 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 be misleading, must fail.</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 Mlarion County. The facts in the case are stated in the opinion of'the court.

<p>The concurrence of a majority of the members of the supreme Court sitting as one body is necessary to a decision; but where the members of the court sitting in a cause on writ of error or appeal are equally divided, the judgment of the lower court should be affirmed, on the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South. Rep. 51.</p>

<p>r. A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in his office, occupation, business or employment.</p> <p>2. Where a’publication is false and not'privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official or business relations of life, wrong and injury are presumed or implied, and such publication is actionable per se.</p> <p>3. Where a publication is not privileged and is not actionable per se because the publication as ordinarily understood will not naturally and necessarily cause injury, damages may be recovered upon proper allegations and proofs for such special injury as is the natural and proximate, though not necessary consequence of the wrongful publication.</p> <p>4. A party injuredbyapublicationcannotrecover damages therefor if the publication is true and is made in good faith in such a manner and under such circumstances as to properly serve the rights of others by and to whom the publication was made. Such a publication is privileged when properly made to serve the rights of others. The damages to the injured party if not needlessly done is not wrongful and gives no right of action.</p> <p>5. To be privileged a publication must be by and to only those who have a right, duty or interest in the subject; the publication must be of a character, and made -without malice in a manner and on an occasion to properly serve such right, duty or interest, and not to needlessly injure another.</p> <p>6. Where a publication is not libelous per se, but special damage or injury is alleged as a natural and proximate result of such publication, and the publication is alleged to be false and to have been maliciously made, it is actionable.</p> <p>7. A party is liable in tort for all the consequences that reasonably and. naturally flow from or follow his wrongful act, whether the consequences 'were actually contemplated or not. The tortious act being established, the liability extends to all of the consequences that naturally, proximately and reasonably follow or result from such act.</p> <p>8. A declaration in which it is alleged that an officer of an improvement company wrote a letter to an indemnity company - stating that an employe of the improvement company for whom the indemnity company had given a bond, was delinquent in his duties to the improvement company with reference to which duties the bond was given, and that the letter was false and maliciously sent, and was received and read by the indemnity company, is not demurrable, where special injuries to the plaintiff are alleged as the result of such a publication.</p> <p>9.. In an action for libel where the plea admits the writing of • the letter complained of, testimony that the defendant showed the witness a letter which read like the one declared on, and that defendant told the witness it was “a copy of the letter which he mailed,” is corroboration of the admission of the plea and tended to prove publication, and should not be stricken.</p> <p>10. Where the defendant admits sending a libelous letter, the introduction in evidence of a copy of the letter in connection with other evidence of publication is not harmful. But the admission in evidence over proper objections of a copy of a letter purporting but not shown to be from the person to whom the libelous letter was sent, containing matters relating to the privilege of the letter complained of -and containing also ex-parte suggestions relating to the defendant is harmful error.</p> <p>11. The privilege of a publication is not confined to the legal duties of the parties in the premises.</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 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 Escambia County. Statement. The defendants in error, hereinafter called the plaintiffs, on the 4th of February, 1907, filed in the circuit court of Escambia county, the following declaration, with a statement of damages, against the plaintiff in error, hereinafter called the defendant: “In Escambia County Circuit Court, State of Florida.

<p>Pleading and Practice—Alteration of Instrument Sued ON MUST BE SPECIALLY PLEADED--EVIDENCE-ERRORS MUST be Plainly Made to Appear—Peremptory Charge to Jury.</p> <p>1. Under the provisions of Rules 66 and 67 governing the practice* in the circuit courts in common-law actions, and of section 1465, General Statutes of 1906, an alleged alteration in a promissory note or other instrument sued upon must be specially pleaded.</p> <p>■ 2. Under a plea of non est factum, or under a general plea simply denying in toto the execution, making and delivery of the instrument sued upon, an alleged alteration in such instrument that has the effect of avoiding it cannot be-shown or proven' In order to prove such alleged alteration it must be specially alleged by plea.</p> <p>3. Where error is predicated upon the court’srefusal to permit the filing of an amended or additional plea, the proffered plea so excluded must be properly exhibited to the appellate courq. in the transcript of record, otherwise its exclusion by the trial court will be presumed to have been proper.</p> <p>4. Where the evidence fully makes out the plaintiff’scase, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff’s favor is proper.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Hamilton 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. Suwanee 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 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 Orange-County.</p> <p> Statement. </p> <p>On a former writ of error the original declaration in this cause was held to be defective and a judgment obtained against the railroad company was reversed Atlantic Coast Line R. R. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 South. Rep. 529.</p> <p>The amended declaration is as follows: “The Benedict Pineapple Company, a corporation existing under the laws of the state of Florida, by Massey & Warlow, its attorneys, sues the Atlantic Coast Line Railroad Company, a corporation.:</p> <p>For that the defendant is a railroad corporation operating a railroad through the city of Orlando, and in the winter season, to-wit: on or about the 7th day of January, A. D. 1905, it so carelessly and negligently managed and operated one of its locomotives while drawing a train through said city, in Orange county aforesaid, that fire escaped from said locomotive and set fire to the canvas or cloth with which a pinery belonging to the plaintiff and situated near to the track of the defendant in the city aforesaid, was covered, and burned a large part, to-wit, about one acre of the said cover.</p> <p>And the plaintiff says also that in the said pinery a large number of pineapple plants were set and growing, some of which had on them fruit at various stages of development, and that pineapple plants and fruit were likely to be damaged by frost and cold in the said city of Orlando, (in which said pinery was situated) and the latitude thereof in the winter season, and that it was usual and customary in and about the said city and latitude to cover pineries with canvas or cloth in order to. protect the plants and fruit growing thereon from dam-the winter season on short notice; and which otherwise would damage the plants and fruit; and that in accordanee with said custom the plaintiff had provided its said pinery with a good canvas or cloth cover for the purpose aforesaid and had also provided stoves and fuel in the said pinery ready, and sufficient (if the pinery were covered as aforesaid), to heat the said pinery immediately upon the coming of cold and frost dangerous to the said plants and fruit and thus preserve them from; damage therefrom. And the plaintiff says that shortly after the burning of the portion of the coyer as aforesaid and be-for the plaintiff by exercise of any reasonable diligence by it could replace the part of the cover which had been burned through Jhe negligence of the defendant as aforesaid, the plants and fruit were damaged by frost and cold for want of the complete cover and the subsequent inability of the plaintiff to control the temperature within said pinery.</p> <p>And the plaintiff says that the defendant well know or ought to have known that pineapple plants and fruit in the city of Orlando and in the latitude thereof were likely to be damaged by frost and cold in the winter season and that it was usual and customary to cover the pineries aforesaid with canvas or cloth in order to protect the plants and fruit from, damage by frost and cold and also to keep in the heat produced or generated as-aforesaid during spells of frost and cold as aforesaid, and well knew or ought to have known the purpose for which the plaintiffs said pinery was covered with canvas or cloth as aforesaid and that damage to plants and fruit therein was likely to happen at that season by the burning of a large part of the said cover as aforesaid. And the plaintiff says that but for the burning of a large part of the cover through the negligence of the defendant as aforesaid, it, the said plaintiff, could have saved age by frost and cold and also to keep in the heat produced or generated by fires maintained in the pineries during spells of frost and cold -which ordinarily come in its said plants and fruit from, damage by the particular frost and cold which damaged them., which damage was caused by the negligence of the defendant in burning part of the cover as aforesaid.</p> <p>And also for that the defendant is a railroad corporation operating a railroad through the city of Orlando, and in the winter season, t-o-wif, on or about the 7th day of January, A. D. 1905, it ran a train through said city, in Orange county aforesaid, drawn by a locomotive which was so carelessly and negligently equipped and provided with proper -apparatus to prevent the escape of fire from said, locomotive that fire did escape therefrom, and set fire to the canvas or cloth with which a pinery belonging to the plaintiff and situated near to the track of the defendant in the city aforesaid was covered and burned a large part, to-wit, about one acre of the said cover.</p> <p>And the plaintiff says also that in the said pinery a large number of pineapple plant's were set and growing, some of which had on them fruit at various stages of development, and that pineapple plants and fruit were likely to be damaged by frost and cold in the said city of Orlando (in which said -pinery was situated) and the latitude thereof in the winter season, and that it was usual and customary in and about the said city and latitude to cover pineries with canvas or cloth in order to protect the plants and fruit growing therein from damage by frost and -cold -and also to keep- in the -heat produced or generated by fires maintained in the pineries during spells of frost and cold which ordinarily come in the winter season on short notice; -and which otherwise would damage the plants and fruit; and that in accordance with said custom the plaintiff had provided its said pinery with a good canvas or cloth -cover for the purpose aforesaid and had also provided stoves ’and fuel in the said pinery, ready,, and sufficient (if the pinery were covered as aforesaid), to beat the said pinery ¡immediately upon the coming of cold and frost dangerous to the said plants and fruit and thus preserve them from damage therefrom. And the plaintiff, says that shortly after the burning of the portion of the cover as aforesaid and before the plaintiff by exercise of any reasonable diligence by it cotild replace the part of the cover which had been burned through the negligence 'of the defendant as aforesaid, the plants and fruit were damaged by frost and cold for want of the complete cover and the consequent inability of the plaintiff to control the temperature within said pinery.</p> <p>And the plaintiff says that the defendant well knew or ought to have known that pineapple plants and fruit in the city, of Orlando and in the latitude thereof were likely to be damaged by frost and cold in the winter season and that it was usual and customary to cover the pineries aforesaid with canvas or cloth in order to protect the plants and fruit from, damage by frost and cold and also to keep in the heat produced or generated as aforesaid during spells of frost and cold as aforesaid, and well knew or ought to have known the purpose for which the plaintiff’s said pinery was covered with canvas or cloth as aforesaid and that damage to plants and fruit therein was likely to happen at that season by the burning of a -large part of the -cover as aforesaid. And the plaintiff says that but for the burning of a large part of the cover through the negligence of the defendant as aforesaid, it, the said plaintiff, could have saved its said plants and fruit from: damage by the particular frost and cold which damaged them-, which damage was caused by the negligence of the defendant in burning, part of the cover as aforesaid. And the plaintiff claims $10,000.00.”</p> <p>The following demurrer was interposed to the declaration : /</p> <p>“Now comes the defendant in the above suit, and says that the declaration and each count thereof is bad in substance and in law and demurs thereto.</p> <p>Sparkman & Carter.</p> <p>And for substantial matters of law to be argued to the court, says: First. That neither the declaration as a whole, nor either count thereof in itself, states a cause of action against the defendant.</p> <p>Second. That each count in the said declaration shows that the damage, if any, suffered by the plaintiff was not the proximate result of. any negligence on the part of the defendant.</p> <p>Third. That each count in the said declaration shows that the damage claimed bf the said plaintiff was caused by an act of God, and was not the proximate result of any negligence chargeable against the defendant.</p> <p>Fourth. That neither count in said declaration alleges or charges any facts bringing home to the defencía -■ the knowledge that the freeze which caused the damage to plaintiff might be reasonably expected by the said defendant.</p> <p>Fifth. That neither count in said declaration alleges facts to bring home to the defendants the knowledge that the freezing of the pineapple plants might be reasonably expected to follow directly and naturally from the burning.</p> <p>Sixth. That neither count in said declaration charges such a state of facts as would show that the damage suffered ’by the plaintiff might be reasonably expected from burning the canvas charged -to have been burned.”</p> <p>The demurrer was sustained and the .plaintiff not desiring to further amend the declaration, judgment for the defendant was entered, and the plaintiff on writ of error assigns as errors the sustaining of the demurrer and the entering of judgment for the defendant.</p>

This case was decided by Division B. Writ of Error to the Circuit Court for Orange 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 Suwanee 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 Madison 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 Hamilton 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 Washington County. Statement. An action was brought in the circuit court foi Washington county by Wesley Brock against the German American Lumber Company, a corporation, to recover damages for injuries received by the plaintiff in the defendant’s saw mill.

This case was decided'by Division B.' (Writ of Error to the Circuit Court for Polk County.

<p>This case was decided 'by Division B.</p> <p>Writ of Error to the Circuit Court for Escambia County.</p> <p> Statement. </p> <p>In June, 1907, the plaintiff in error filed a declaration against the defendant in ’ error in the following words, viz.:</p> <p>“The plaintiff, John Flowers, by his attorneys sues the defendant for that whereas, on the 22nd day of March, A. D. 1907, the defendant was maintaining- and operating a certain railroad shoo in said county and state, and the plaintiff was employed by the defendant, as a laborer in said shop, subject to the orders of the foreman thereof; that in the said shop and as a part of the machinery thereof, was a machine known as a Jointer’ or 'hand planer’ used for the purpose of planing, trimming and sizing such material as required it. for use in the construction and repair of cars; that about the. center of said machine was a system of sharp knives which revolved rapidly when in use; that in front of, and behind said knives and approaching near thereto were platforms upon which rested the material to be planed, trimmed or sized by means thereof, which material was required to be pushed by hand along and, upon said front platform, against said knives; that in order that said material might rest and bear, equally and firmly upon the said platforms, the said platforms were designed to be adjusted by means of unobservable set screws attached to said machine beneath said platform, by means whereof the platform in front of the said knives was designed to be raised or lowered to a distance below the platform behind the said knives equal to the thickness of the cut or trim, desired to be made upon the material to be planed or trimmed by means thereof, that the plaintiff, was inexperienced in the use of said machine and in the use of machines similar thereto and had no knowledge that the platform behind the said knives could be raised or lowered, but on the contrary supposed that said platform remained fixed and steady in its position and that said machine, was adjusted by raising or lowering the platform in front' of' said knives only; that during th,e period of plaintiff’s employment in said shop, the platform behind said knives had so far as the plaintiff was able to observe or knew remained undisturbed in one position, which the plaintiff supposed was a fixed and immovable one; that the defendant and its foreman in said shop, knew that the plaintiff was without experience in the use of said machine and of machines similar thereto, yet the defendant and its foreman neglected to instruct the plaintiff in the use of sáid machine, or 'to advise him as to the danger and hazard thereof, and neglected to advise him of the movable character of the platform behind the said knives, although the defendant knew of the. movable character of said platform and although the defendant knew that the plaintiff’s duties necessitated the use of said machine by the plaintiff from time to time as the material upon which he was at work required trimming or sizing that on the night next preceding the injury hereinafter set forth, the defendant’s foreman in said shop lowered the platform behind the said knives from its usual position which it had occupied during-the plaintiff’s employment at said shops in such a way that it rested below said knives and below the platform in front thereof, of which said change the defendant negligently failed to advise the plaintiff, although it should have known, and did know, that said machine was thereby rendered more dangerous, and that the plaintiff was without knowledge of said change and that the plaintiff and other employes in said shop were likely at any time to use said machine in its' changed and more hazardous condition without knowledge of said -change and of the increased hazard thereby occasioned; that on the following morning, to-wit, on the 22nd day of Mferch, A. D. 1907, the plaintiff while in the discharge of 'his duties attempted in the usual way and by the usual method to use the said machine for the purpose of trimming certain material required to be trimmed and sized by means of said machine, that by reason of the platform behind the said knives having been lowered below said knives and below the platform- in front thereof, which was unobserved by the plaintiff, and -which was unobservable without close inspection the material placed by the plaintiff upon the platform in front of the said knives did not rest and bear equally and firmly upon the said platform as same was pushed against the said knives, but on the contrary so much of said material as had passed the said knives and had been trimmed by means thereof remained suspended about the said platform behind the said knives, until such time as the weight of that portion of the material which had passed the said knives, overbalanced the pressure applied by the plaintiff to that portion remaining Upon the platform in front of said knives-, when the said material suddenly and unexpectedly dropped to the platform behind the said knives and thereby brought the plaintiff’s right hand in contact with the said knives, by reason whereof the plaintiff’s right hand -was'then and there and thereby severed; that by reason of the said injury so occasioned the plaintiff has suffered great pain of body and mind, and has been put to great expense for medical treatment and has suffered great inconvenience and annoyance and -such loss of time and profit and has thereby been permanently disabled and disfigured, and has been greatly incapacitated for labor and his earning power has been greatly and permanently impaired to the damage of the plaintiff in the sum of ten thousand ($10,000.00) dollars.</p> <p>Wherefore plaintiff sues and claims ten thousand ($10,000.00) dollars.”</p> <p>To this declaration a demurrer was filed in the following words :</p> <p>“Now comes the defendant and says that the plaintiff’s declaration is bad in substance. The substantial matters of law to be argued are:</p> <p>1. The allegations are so vague, indefinite and uncertain, that no cause of action is stated.</p> <p>2. The facts alleged do not show negligence on the part of the defendant.</p> <p>3. The allegations show that the plaintiff was not free from fault.</p> <p>4. The allegations show that plaintiff’s injury, if caused by negligence, resulted .from the negligence of a fellow servant, and that plaintiff was guilty of contributory negligence.</p> <p>5. The alleged hazardous condition of the machinery, caused by changing the height of the rear platform, was according to the allegations of the declaration, open, obvious and patent.</p> <p>6. The allegations show that the injuries sustained in the manner stated were assumed by plaintiff.</p> <p>7. The allegations show .that the injuries sustained were the result of ordinary risks incidental to plaintiff’s employment.</p> <p>8. The declaration fails to state a cause of action.”</p> <p>This demurrer was sustained and the plaintiff failing to plead further a final judgment was entered for the defendant.</p>

This case was decided by Division B. 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 A. Appeal from the Circuit Court for Washington County. Statement. The appellee, John G. Henderson, on August 6, 1906, filed a bill of complaint in the circuit court for Washington county seeking under the statute to enjoin the defendant from trespassing upon timbered lands of the complainant by cutting the trees thereon and removing the logs therefrom.

This case was decided by Division A. Appeal from the Circuit Court for Washington County. Statement On April 9, 1906, 'the appellee brought a bill in equity in the circuit court for Washington county for an injunction under the statute against the appellant for trespass to timber lands.

<p>Corporations—Execution op Mortgage by—Interest of Defendant How Alleged In Bill—Equity Practice—Extending Time for Pleadings—Vacating Decree Pro-. Conpesso.</p> <p>x. Under the provisions of section 2459, General Statutes of 1906, (section 195 s> Revised Statutes of 1892) whether it is necessary to their validity that the deeds of corporations conveying land shall be witnessed by subscribing witnesses, Queret</p> <p>2. A trust deed or mortgage executed, attested and proven for record by two corporations in the State of New York in the following form:</p> <p>“In witness whereof the parties hereto have caused their respective corporate names to be hereunto subscribed by their respective presidents, thereto duly authorized, and their respective corporate seals tobe hereto affixed and attestedby their respective secretaries on the day and year first above written.</p> <p>(Corporate) International Kaolin Company,</p> <p>(' Seal ) Charles D. Haines, President.</p> <p>Attest: Stephen J. Brown, Secretary.</p> <p>(Corporate) . City Trust Company of New York,</p> <p>( seal ) By J. R. Curran, President.</p> <p>Attest: W. W. Lee, Secretary.</p> <p>As to City Trust Company,</p> <p>W. J. Eck,</p> <p>W. Smith.</p> <p>In presence of: as to International Kaolin Company and the signature of Charles D. Haines, as President and Stephen J. Brown, as Secretary.</p> <p>H. McGonegal,</p> <p>Geo. F. Bentley,</p> <p>State of New York,</p> <p>County of New York.</p> <p>On the first day of August in the year one thousand nine hundred and two, before me personally came Charles D. Haines, to me known, who being by me duly sworn, did depose and say that he then resided at Kinderbrook, Columbia County, New York; that he was then president of the International Kaolin Company, one of the* two corporations described in and which executed the foregoing instrument; that he knew the seal of said corporation; that the seal affixed to said intsrument was the said corporate seal; that it was so affixed by order of the board of directors of said corpora tion, and that he signed his name thereto by like order. Notary’s offi-) Geo. F. Bentley,</p> <p>( cial Seal ) Notary Public New York County.</p> <p>Then follows a certificate under the hand and official seal of the clerk of the county of New York and of the Supreme Court for said county, which is a court of record, attesting that the said Notary Geo. F. Bentley was a dulv commissioned and sworn Notary Public in and for said State and county and as such duly authorized to take such acknowledgments, and that he was well acquainted with the signature of such Notary and that the signature to such certificate he believed to be the genuine signature of such Notary.</p> <p>Then follows the proof of the execution of' such mortgage by the City Trust Company of New York Trustee in acceptance of the trust therein created, in identically the same form: Held, That saidmortgage was validly executed, attested and witnessed, if witnesses thereto be necessary, and proven for record substantially in compliance with the requirements of our statutes; and that such proof thereof lawfully entitled it to record in this State.</p> <p>3. It is not the policy of our law to nullify records wherever substance is found. Clerical errors and technical ommissions should be disregarded, and a substantial compliance with the statute should be held tobesufficient. The instrument acknowledged may be resorted to in aid of both the execution and acknowledgment thereof. And a liberal construction should be applied in fayor of sustaining the proof of the execution of deeds and other instruments required to. be proven for record. ,</p> <p>4. The recording of a deed is equivalent to a formal delivery thereof, in the absence of any showing of fraud on the grantor.</p> <p>5. An allegation in a bill for closure of a mortgage to the effect; that the interest of a defendant named therein, if any, has accrued subsequently to the mortgage and is subject to the lien thereof, sufficiently shows that such defendant is a proper party, and is not demurrable as stating no cause of action against him.</p> <p>6. Trial courts are vested with a wide discretion in the matter of extension of the rule-prescribed times for filing pleadings, and no exercise of such discretion will be.interfered with by an appellate court unless it is a plain abuse thereof to the unjustifiable detriment of the party or parties.</p> <p>7. Aftera defendant to a billhas filed an answer thereto, the complainant cannot, under our Equity Rule No. 42, amend his bill without obtaining an order from the judge granting leave to amend. If in such case he amends his bill without such order from the ¿judge, a decree pro confesso and final decree against such defendant is not authorized upon his failure to answer the bill as so amended , and there is no error in vacting a decree pro confesso and- final decree entered under such circumstances.</p>

This case was decided by Division B. 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. Writ of Error to the Circuit Court for Duval County. The facts in the case arc stated in the opinon of the court.

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

<p>1. The’purpose of the statute authorizing' pleadings on equit- • able grounds in certain cases at law, is-to facilitate the administration of justice in courts that can deal with such equitable pleadings.</p> <p>2. A temporary injunction restraining eviction proceedings in the county judge’s court should not be dissolved on the ground that the relief sought may be obtained by. a plea on equitable grounds in the eviction proceedingsin the county, judge’s court.</p>

This case was 'decided, by Division. B. Appeal irom' 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 Taylor County. The facts in the case are stated in the opinion of the court. j

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.

<p>This case 'was 'decided by Division A.</p> <p>Appeal from) the Circuit Court for Hernando' County.</p> <p>• Statement.</p> <p>JPhe appellants filed their bill in chancery against the appellees in the circuit court for Hernando county for the reformation of a deed to certain parcels of land therein described. A temporary injunction or restraining order against the defendants was granted by the circuit judge, Without notice. The bill was amended, under leave of the court. A demurrer was interposed thereto by J. J. Pickren and Lazarus B. Varn, two of the defendants, which was overruled, and an answer to the bill with a demurrer incorporated therein was filed by the J. C. Turner Cypress Lumber Company, the other defendant. At the final ‘hearing a final decree was rendered sustaining the demurrer, dissolving the injunction and dismissing’ the bill. From this decree the complainants have entered an appeal to this court. The deed in question, which is attached as an exhibit to the bill and made a part thereof, was executed 011 the 30th day of November, 1900, by Robert J. Knight and wife to The J. C. Turner Cypress Lumber Company.</p> <p>The allegations in the bill relating thereto, immediately following the description of the lands, are as follows : “And being at that date seized and possessed of the said lands, the said Robert J. Knight, with the joinder of his wife, Mary M. Knight, entered into a contract with the defendant, The J. C. Turner Cypress Lumber Company, b}r the term of which the parties then and there agreed, and your orators 'charge that it was the intention of the parties to enter, into a contract for the conveyance of the said lands by the said Knight and wife to the said The J. C. Turner Cypress Lumber Company, upon a condition to be set out and expressed in the said deed of conveyance, as follows: That it was the intention of the said parties that there should 'be a full absolute and explicit exception in the said deed of the turpentine privilege on that portion of the said lands above described, which contained a growth of pine timber, for a period of four years, said four years to begin at such time as was convenient and practicable for the said Knight or his assigns to exercise the same, and especially, your orators charge, that the said Knight in -and by the said contract with the said J. C. Turner Cypress Lumber 'Company, excepted such turpentine privilege to be exercised and enjoyed by the said Knight or his assigns fo'r a period of four years, and that said Knight or his assigns should beJ permitted to 'begin the ¡boxing and cutting of timber at such time iasl Was practicable and convenient for the said Knight or his assigns, and that the said Knight or his assigns should enjoy said privilege for a period of four years from and after the date when said pine trees should be boxed, and in this connection complainants charge, that it has been impracticable, if not impossible, for the said Knight or his assigns to cut and box and work all the pine trees growing on the said lands, and that only a portion of the same, as hereinafter set out, has been boxed and are being worked for turpentine purposes.</p> <p>Your orators charge that bv the terms of the said agreement and understanding bétween the said Knight and the J. C. Turner Cypress Lumber Company chat the said Knight intended to retain, and not convey to1 the said J. C. Turner Cypress Lumber Company and the said J. C. Turner 'Cypress Lumber Company nuended and understood that the said Knight did not convey, but retained the privilege of working the pine trees on said lands for four years, and that such period should b -gin at such time as was practicable for the said Knight or his assigns to enjoy the said turpentine privilege.</p> <p>Your orators show that in pursuance of the said agreement the s.aid RJT. Knight undertook and attempted ■to convey to the said The J. C. Turner Cypress Lumber Company the lands above described, with the exception of the turpentine privilege of the character and nature last above described, and on the 30th day of October, r9oo, the said Knight and wife executed and delivered a deed of conveyance to the said The J. C. Turner Cypress Lumber Company, a certified copy of same is attached hereto and made part hereof, marked “A”, and in and by said deed attempted to set out 'the exception of the turpentine privilege of the nature and kind above set out in your orator’s bill, but youf-orators show that in the drafting and drawing of the said deed of conveyance, and by error of the scrivener, the said contract and agreement made between the said Robt. J. Knight and the said The J. C. Turner Cypress Lumber Company was not excepted in the language of their said agreement, nor does the language in said deed set forth the true contract and agreement between the parties, as your orators are advised and believe.</p> <p>Your orators charge the said lands were sold, and the consideration for the conveyance for the same, was fixed with reference to the absolute retention by the said Knight of a full turpentine privilege on the said lands, the same to be worked by the said Knight or his assigns for a full period of four years from and after the date when it might be practicable for the said Knight or his assigns to enter upon and cut and box .the same.</p> <p>Your orators .show that in the drawing and drafting of the said deed, and of the clause, by which it was intended to preserve the right of the grantor and his assigns, the langiuage in said deed is insufficient, and does not clearly set forth the contract and agreement between the said Knight and the said The J. C. Turner Cypress Lumber Company, in this.: Said clause in said deed referred to, reads as follows : ‘The grantor specially reserves the right to box, cut and work for turpentine purposes, all the pine trees growing upon the premises above described, and each and every part thereof, and a full turpentine privilege, including the right of entry and passage over and upon the above described lands for the period of four years. It being specially agreed by the grantee named herein that no other person or corporation shall have the said turpentine privilege or the right of passage over and upon any part of the above described lands during the said four years, for turpentine and mill purposes, other than the grantor. named in this conveyance.’ ’ And your orators charge that the said clause in the said deed should have been in the nature of an absolute exception, and not a mere reservation of the turpentine privilege to the said Knight, and should have set forth the full contract agreed upon, and understood between the said Knight and the said J. C. Turner Cypress Lumber Company, to the effect that the said Knight and his assigns should have the privilege of beginning the cutting of boxes at any time when it' was practicable and convenient to the said Knight to do so, and that they should have a full four year period to enjoy the said privilege, after the boxes were cut' in the pine trees growing on said lands.</p> <p>Your orators charge that they- have been advised that the language in said deed does not fully and properly express the contract agreement and understanding between the said Knight and the said The J. C. Turner Cypress Lumber Company, and that the said deed should be reformed to express the real intention of the parties, made and agreed upon at the time of the making of the said deed of conveyance.”</p> <p>Succeeding allegations in the bill and in the amendment thereto, set forth that before the filing of the bill, Robert J. Knight had entered upon a portion of the lands, of which a description is given, and had cut and boxed the same for turpentine purposes; that various and sundry conveyances had been executed, by Knight and others, by 'which the turpentine privilege so reserved in the deed became vested in the complainants; that the J. C. Turner Cypress Lumber Company had sold and transferred to J. J. Pickren & Company, the co-defendants “a pretended right and privilege to1 enter upon the said lands and work the same for turpentine purposes;” that all the defendants 'both prior and subsequent to such transfer had knowledge of the fact that complainants were in possession of the lands working a portion of the same for turpentine purposes and -that by reason of the record of the conveyance from Knight to the Turner Lumber Co., as well as by reason of the record of other conveyances, the defendants had constructive notice of the claim of complainants to such turpentine privilege.</p> <p>The prayers of the bill read as follows: “Your orators are without remedy in the premises, except in a court of chancery, and they pray that a writ of injunction may issue restraining the defendants and each of them, their agents, servants, attorneys and employes, and all other persons on their behalf, from in anywise interfering with your orators working the said timber growing on said lands for the purposes aforesaid, and that they may be restrained and enjoined from interfering in any way with your orators’ laborers, by accosting and threatening them, or engaging them in conversations, or in any wise deterring your orators and their said laborers from the complete enjoyment of'the said turpentine privilege in the said lands, until the further order of this court, and that upon the coming in of the master’s report that a decree perpetual in its nature may be granted to your orators. "Ybur orators further pray that if in the judgment of your honor, the language in the said deed of conveyance from the said Knight to the said The J. C. Turner Cypress Lumber Company is insufficient to fully protect your orators’ rights' in the premises that your orators may have a decree of this honorable court reforming and recasting the clause in the said deed which purports to protect the turpentine privilege in the said Knight and his assigns for a full period of four years from and after the date of cutting boxes in the timber growing on said lands, the same to be out at such time as is practicable and convenient to your orators to cut the same, and that your orators may be -permitted to work the timber for a period of four years from and after the time the same is so cut.”</p> <p>iThen follow prayers for subpoena and general relief.</p> <p>We deem it unnecessary to set forth the answer- and the demurrer incorporated- therein. Suffice it to say that the demurrer attacked the bill for -want of equity, one of the specific grounds thereof being “that in appears by the said bill that the complainants seek to substitute an alleged contract which is void for uncertainty.”</p>

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.

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.

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

<p>1. Where in a chancery cause an application is made to change the venue under section 1471 General Statutes of 1906, on account of the prejudice of the judge of the circuit court, and there is no allegation in the application that the judge is prejudiced against the applicants, or either of them, but it is alleged that the judge by reason of his being a stockholder and director of two corporations, viz: a bank, and of an investment company, engaged is. the business of lending money at rates which the applicants contend is usurious, and that in the pending case the facts stated by the applicants in defense of the suit present a similar question of usury, wherefore the applicants fear the judge has such an interest in the result of the pending case as to prejudice him in the interest of complainant and against the defendant, such application presents no statutory ground for a change of venue.</p> <p>2. Section 1471 General Statutes of 1906, authorizing a change of venue on account of prejudice in the judge, construed in the light of our decisions, means a prejudice against a party to the cause, and not a prejudice based upon or growing out of the business relations of the judge or a mere interest in an abstract question that may be involved in the cause and which may arise in some future independent litigation not yet begun.</p>

This case was decided by the court En Banc. Appeal from 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 B. Appeal from the Circuit Coürt for Hillsborough County. Statement.

This case was decided by Division B. Appeal from the Circuit Court for Brevard 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 Manatee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Appeal from the Circuit Court for Orange 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 Santa Rosa County. The facts in the cáse 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.

<p>This, case was decided by Division B.</p> <p>Appeal from the Circuit Court for Alachua .County.</p> <p>The facts in the case are stated in the opinion o’f the; court.</p>

This case was decided by Division A. Appeal from the Circuit Court of Duval County. Statement.

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