Volume 58 — Florida Reports

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

This casé was decided by Division B. Writ of Error to the Criminal Court of Record, Suwannee 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 Eecord, Escambia 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. Writ of Error to the Circuit Court for Suwannee 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, Escambia 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, Orange 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 Eosa 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. 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 the Court En Banc. Writ of Error to the Criminal Court of Record, Dade County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of Error to the Circuit Court for 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>Writ of Error to the Circuit Court for Citrus 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, 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 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 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 Criminal Court of Becord, Orange 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 opinion of the court.

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

<p>1. The repetition by an employee, seated at the breakfast table, of a remark that he would not, though ordered so to do, go out with his team before breakfast so long as his knife stayed with him, is not a “sudden and sufficient provocation” within the statutory definition of excusable homicide.</p> <p>2. An appellate court cannot say that the trial court should have submitted to the jury the question whether a chair is a “•dangerous weapon” when the chair was in evidence, the assailant was before the jury, the person killed thereby was a small man, and the effect of the blow with the chair was to crush the skull at the thickest part.</p> <p>3. The evidence warranted the verdict.</p>

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

This case was decided by Division A. Writ of Error to the Criminal Court of Eecord, Suwannee 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 Lafayette County. The facts in the case are stated in the opinion of the court.

<p>This casp was decided by Division A.</p> <p>Writ of Error to the Criminal Court of Becord, Dade 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 Error to the Criminal Court of Eecord, Suwannee 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 Criminal Court of Record, Walton County. The facts in the case are stated in the opinion of the court.

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

This case was decided by Division A. Writ of Error to the Criminal Court of Eecord, Hills-borough 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 Criminal Court of Record, Duval 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 Wakulla County. 'The facts in the case are stated in the opinion of the court.

<p>1. General objections to evidence proposed, -without stating the precise grounds of objection, are vague and nugatory, and are properly overruled, unless it plainly appears that the proffered evidence is prejudicial, improper and inadmissible for any purpose.</p> <p>2. The trial court is authorized to regulate the order of the introduction of evidence and its discretion in such a matter, either in receiving or rejecting it, will not be interfered with by an appellate court, unless an abuse of such discretion is clearly made to appear.</p> <p>3. The mere fact that proffered evidence is not full and complete within itself but formed only one link in the chain, so that it would have to be supplemented by other evidence in order to avail the party offering it, may not render such evidence incompetent or inadmissible.</p> <p>4. The finding of a referee upon conflicting evidence is entitled to the same weight as the verdict of a jury, and it will not be disturbed! by an appellate court, unless the preponderance of evidence is such as to justify the inferences that such finding was based upon influences other than a due consideration of the evidence.</p> <p>5. A bailee has such special property in the goods intrusted to him that he may maintain an action for damage thereto, so a factor, a broker, a warehouseman, a carrier or any person employed to perform a service in respect to the goods of another with which he is intrusted for that purpose, may maintain an action for the recovery of them, or for any damage done them while in his charge.</p> <p>6. One who is the owner of a number of crates of pears and has been intrusted as a commission man with a number of other crates of pears for the purpose of shipping and' selling them, such crates together constituting a car of fruit, may maintain an action against a railroad carrier for any damages occasioned by its negligence in transporting and delivering such car of fruit.</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.

This case was decided by the court En Banc. Writ of Error to the Circuit Court for Taylor 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>Assuming, since it was so treated by tbe parties and tbe court below, that the position of chairman of a Board of County Commissioners is an office the title to which can be inquired into and' determined by quo warranto proceedings, under Section 769 of the General Statutes of 1906, a Board of County ' Commissioners may elect a chairman at any regular meeting. ,' However questionable as a matter of policy such course might be, the members of such a board would seem to have the legal right to elect a chairman to preside over their meeting as often as they saw fit so to do, provided such election is held at a legal meeting.</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 Polk 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. 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 Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

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

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

<p>1. Mandamus is tbe proper proceeding to test the validity of the action of a city council in expelling from office a member of the councjl. In such an action the court will consider the entire proceeding of the council, including the issues in effect made and the testimony taken before the council as shown by the alternative writ. If the proceedings were illegal or fatally defective or if the testimony wholly fails to support the charges made, the court will order the officer restored.</p> <p>2. Where no particular procedure is prescribed by which a city council may exercise its power to expel an officer of the city, such proceedings should be had as will give the person charged an opportunity to be heard in defense of any charges made against him for which he may be expelled. If the charges made warrant expulsion, and’ there is legal evidence in support of the charges, and the person has had reasonable opportunity to defend, action taken by the requisite vote of the council in expelling a member of the council will not be disturbed by mandamus proceedings.</p> <p>3. One entrusted with official power, who violates his public obligation and betrays his official trust by selling his official influence or vote in a body of which he is a member, is guilty of malconduct in office.</p> <p>4. Malconduct in office, like misconduct in office, includes such acts as amount to a breach of the good faith and right action that are impliedly required of all officers.</p> <p>5. In expelling a member of its body a city council does not convict of a crime and it is not essential that the strict rules of criminal procedure be observed. Where no injury appears to have been done an expelled officer it is not necessarily illegal for the council while in executive session considering the action to. be taken, to receive and read reports of a detective used in the case, when the action taken was publicly done and duly recorded.</p> <p>6. A charge that in effect alleges that a member of a city council agreed for a consideration to aidi in securing a valuable contract with the city through a constituted board of the city and to secure an increase in the appropriation for the purposes of the contract to unduly increase the profits, suffi* ciently sets forth conduct amounting to “disorderly behavior and malconduct in office” for which such officer may be expelled under the statute; and where there is evidence to sustain the charge and no illegality appears in the proceedings of expulsion the courts will not interfere by mandamus.</p>

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

This case was decided by the court En Banc. Writ of Error to the Circuit Court for St. Lucie 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. 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. 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 Marion 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.

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 the court En Banc. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

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

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

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

<p>1. In an action upon an endorsement of a promissory note where a defense is that the note was endorsed by inadvertence, and the defendant is permitted to testify that at the time he wrote certain letters in evidence recognizing his liability on the endorsement, he thought he was bound and had not consulted an attorney, and that he then thought and believed he was bound, it is not error to refuse to allow the defendant to again testify as to his belief that he was liable and had not consulted an attorney when he wrote the letters.</p> <p>2. In the absence of a statute or rule upon the subject, where the plaintiff has anything to prove in order to get á verdict, whether in an action ex contractu or ex delicto, and' whether to establish his right of action or to fix the amount of his damages, the right to begin and conclude the argument to the jury belongs to the plaintiff.</p> <p>3. If the plaintiff would succeed on the pleadings alone, the defendant may begin and conclude the argument; if the defendant would succeed, then there is something for the plaintiff to prove at the outset, and the plaintiff may begin and conclude the argument to the jury.</p> <p>4. Where there are several issues and the plaintiff has anything to prove under any one of them in the first instance, in order to recover, the right to open and close the argument is with him.</p> <p>5. In every case where the general issue, or a general or special denial is pleaded, the right to open and close is with the plaintiff, for then he has something to prove in the first instance, no matter what may he the nature of the controversy, or what special defenses may he set up.</p> <p>6: In an action on a promissory note where there is a common count and a plea of the general issue, the plaintiff must prove something in order to recover and consequently has the right to open and conclude the argument to the jury.</p>

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.

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 Marion 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 Bradford County.</p> <p>Statement.</p> <p>On the 3rd of November, 1906, the plaintiff in error brought a suit at law in the Circuit Court of Bradford County against the defendants in error, the declaration containing three special counts on three several promissory notes, each of them dated Lawtey, Fla., April 2á, 1905, the first for $1397.10, and the other two for $1397.00 each. The first became due November 1st, 1905, the second November 15 th, 1905, the third December 1st, 1905. In other respects they were alike. The first of these notes is in the following words and figures:</p> <p>“$1397.10. Lawtey, Fla., Apr. 21th, 1905.</p> <p>November first, 1905, next, after date, we promise to pay to Virginia-Carolina Chemical Company, or order, without offset, Thirteen Hundred ninety seven 10-100 Dollars. For value received, payable at V. C. C. Co.’s Office, Savannah, Ga., with interest from maturity at the rate of eight per cent. Per annum, with all costs of collection, including ten per cent, attorney’s fees, if collected by law or through an attorney.</p> <p>And each of us, whether maker, security or endorser on this Note, hereby waives and renounce for himself and family, any and all homestead and exemption rights, to which he or they may, in any event, be entitled under any provisions of the Constitution or Laws, State or Federal, as against this Note or any renewal thereof.</p> <p>No. 7219.</p> <p>Due 11-1-1905. F. A. Fisher Co.”</p> <p>The declaration also contains a common count for the price of goods, &c. in the sum of $1208.05, one for money lent, &c. in the same sum, and one for money found to be due on an account stated in the same sum.</p> <p>The defendants filed the following pleas:</p> <p>“1. Now comes the defendants F. A. Fisher, M. E. Edwards, D. E. Edwards and G. W. Brown, by A. V. Long and John E. Hartridge & Son, their attorneys, each for himself and collectively, and for plea to the declaration herein and each of the several counts thereof, say that they never were at any time and are not now partners under the name of the F. A. Fisher Company, or any other name. (This plea was confined by the court to the special counts).</p> <p>3. And for a third plea to the declaration the defendants severally and collectively and each for himself, say that they did not execute said promissory note, dated April 24th, 1.905, for $1397.10, payable on November 1st, 1905, with interest from maturity at 8 % per annum, as a copartnership as set forth in plaintiff’s declaration.”</p> <p>Similar pleas, 4th and 5th, were filed to each of the other special counts.</p> <p>A seventh plea was filed by M. E. Edwards “that before and at the time the said claims as set forth in the declaration, accrued, she was a married woman.”</p> <p>The second and sixth pleas were stricken out on motion.</p> <p>The plaintiff demurred to the 3rd, 4th and 5th pleas on the grounds substantially:</p> <p>1. Neither of said pleas presents an issuable fact which could be met by replication, or upon which issue could be joined.</p> <p>2. Neither of said pleas denies the execution of either of said promissory notes.</p> <p>3. Neither of said pleas denies the drawing or making of said notes, or either of them as required by Rule 64 of the Rules of Circuit Court in Common Law Actions.</p> <p>4. Neither of said pleas presents a legal defense.</p> <p>This demurrer was overruled. After this the defendant by leave of court filed six amended pleas. The first was limited by the court to the special counts, and so far as we can see is in effect a practical duplicate of the first plea. A demurrer to this plea was overruled.</p> <p>The second amended plea was stricken on motion.</p> <p>The third plea was “never indebted” as to the fifth and sixth counts.</p> <p>The fourth plea was as follows: “And for a fourth plea to the first, second and third counts of the declaration herein the defendants severally and collectively and each for himself and herself say that they did not execute the promissory note set forth in the first, second and third counts of the declaration, as a copartnership.”</p> <p>This plea seems to us to be in effect substantially the same as the original 3rd, 4th and 5th pleas. A demurrer to the 4th plea was overruled.</p> <p>The fifth plea was as follows: “And for a fifth plea to the declaration and each of the several counts thereof, the defendants severally and collectively, and each for himself and herself say that they were stockholders in a corporation duly created under the name of the F. A. Fisher Company, under the laws of the State of Delaware, and that before the commencement of this action the said F. A. Fisher Company was duly adjudged a bankrupt in the United States District Court for the Southern District of Florida, a court having jurisdiction of the subject matter, to-wit, of bankruptcy proceedings, and that the said F. A. Fisher Company, so adjudged a bankrupt as a corporation is the same company sued herein as a co-partnership. And the said F. A. Fisher Company was on March 8th, 1906, by order of James W. Locke, Judge of the District Court of the United States for the Southern District of Florida, duly discharged from all debts and claims provable by Act of Congress against it and the notes and debts, the subject matter of this suit were provable claims under said Act of Congress.” A motion to strike this plea was denied.</p> <p>The sixth amended plea was as follows: “And for a sixth and further plea in this behalf for M. E. Edwards the said defendant M. E. Edwards says that before and at the time the said notes in the first, second and third counts were executed, and before and at the time the indebtedness secured as represented by the fifth and sixth counts of the plaintiffs’ declaration, she was a married woman.” Issue was joined on this plea.</p> <p>The plaintiff joined issue on the first amended plea .of the first, second and third counts of the declaration, and also upon the third and fifth amended pleas. The plaintiff also filed the following replication to the fourth amended plea:</p> <p>“3. For replication to the fourth amended plea, plaintiff says: That the consideration' for the several notes sued upon herein, and declared upon in the first, second and third counts of plaintiff’s declaration, was fertilizers consigned and shipped by the plaintiff to the defendants, as a co-partnership, conducting a mercantile business under the firm name of F. A. Fisher Company, at Lawtey, Florida, and said goods were received by the F. A. Fisher Company as a co-partnership, and pursuant to a written agreement theretofore made between the parties, reciting the partnership consisting of F. A. Fisher, M. E. Edwards, D. E. Edwards and G. W. Brown, as alleged in plaintiff’s declaration, and all dealings by said defendants, with the plaintiff in relation thereto, were as a co-partnership under the firm name and style of F. A. Fisher Company, and pursuant thereto, the said notes' were signed by a member of the said firm, and the manager of the said firm, to-wit: F. A. Fisher, in the said firm name, to-wit: F. A. Fisher Company, being the same F. A. Fisher who made the original contract, and had all dealings and transactions in relation thereto, with the plaintiff, and the plaintiff accepted the said notes, signed with, and in the said firm name, as a co-partnership, believing in good faith when said .notes were accepted that the same was a co-partnership, composed of the individuals, as alleged in plaintiff’s declaration.”</p> <p>The plaintiff also filed the following replication to sixth amended plea:</p> <p>“5. For replication to defendants’ sixth amended plea, plaintiff says: That subsequent to the execution of the notes sued upon, to-wit: On the .... day of December, A. D. 1905, D. E. Edwards, husband of the defendant M. E. Edwards, died, and the said M. E. Edwards thereby became a widow, and thereafter, the said M. E. Edwards continued in the said business, with, and as a member of the firm of ‘F. A. Fisher Company,’ as a co-partnership, as alleged in plaintiff’s declaration, and the co-partnership of which the said M. E. Edwards was a member, after the death of the said D. E. Edwards, was in possession of a part of the fertilizers that were the consideration for the notes and account sued upon, and the said co-partnership thereafter continued to sell the said fertilizers, and receive monies therefor, the said monies being received in trust for the plaintiff herein, and thereby, and by reason thereof, the said M. E. Edwards, a widow, ratified and confirmed the making of the said notes and the contracting of the said indebtedness by the said firm of F. A. Fisher Company, and thereby rendered herself liable for the said indebtedness.”</p> <p>The plaintiff also filed a further replication as follows: “That the said M. E. Edwards, with other members of the said firm of F. A. Fisher Company, claiming to be a corporation under the laws of the State of Delaware, but in fact not a legal corporation, admitted the said indebtedness for which plaintiff now sues, in and by a pretended assignment for the benefit of the creditors, the plaintiff herein being among the said creditors, as appears by the record of Bradford County, Florida.”</p> <p>The defendant demurred to replications numbered 3 and 5 and assigned the following grounds:</p> <p>1. The manner in which defendants dealt with plaintiff could not change or alter the status of defendants as to its corporate existence.</p> <p>2. The adjudications of the defendant as a bankrupt precluded and estopped the plaintiff from now raising the questions as to whether the defendant is a corporation or a co-partnership.</p> <p>3. The dealings with the plaintiff after the death of D. R. Edwards could not bind one or more or all of the incorporators as co-partners or individually.</p> <p>4. The ratification of M. E. Edwards of the making of the notes and of the indebtedness sued on could not render the individual liable for the debts of a copartnership, or a corporation. The adjudication of the defendants as bankrupts precluded and estopped the plaintiff from now raising the question as to whether the defendants were a corporation or a copartnership. The ratification by a widow of an indebtedness assumed during coverture by either a corporation or a copartnership could not impose a liability on the defendant M. E. Edwards now widow.</p> <p>The foregoing demurrer was sustained by the Circuit Judge. Issue was joined on the pleas and on the trial, after the evidence was submitted the trial judge directed a verdict for the defendants and after a motion for new trial was made and overruled a judgment was entered in favor of the defendants. The case is here on writ of error from this judgment.</p>

<p>This case was decided by the court En Banc.</p> <p>Writ of Error to the Circuit Court for Escambia County.</p>

This case was decided by the court En Banc. 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 Polk County. The facts in the case are stated in the opinion of the court.

<p>1. The finding of a chancellor that an agent committed a fraud upon his principal -will not be disturbed when supported by the evidence, especially when the defense in evidence differs from that pleaded by the agent.</p> <p>2. The act of the clerk in entering judgment for costs pro forma against husband and wife, when directed specifically by the court to enter the judgment against the husband alone is a self correcting misprision.</p>

Decree affirmed in part. Decree reversed in part. This case was decided by Division A. Appealed from the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Jefferson County. The facts in the case are stated in the opinion of the court.

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

<p>In pleading title by descent, the rule in equity is that the defendant is entitled to be apprised of all the links which constitute the claim of descent, the facts establishing heirship should be set out.</p>

This case was decided by the court En Banc. Appealed irom the Circuit Court for Lafayette 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 Calhoun 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. 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 Polk County.</p> <p>Statement.</p> <p>On the 26th day of March, 1908, the appellee as complainant filed his original bill against the appellants as defendants. A demurrer was interposed to such bill upon which the trial court made the following order: “The demurrer to the bill assigns a number of grounds which are not tenable among them that there is no averment of a distinct agreement between the Port Tampa Phosphate Company and Hull, that the deed to the latter from Stuart and Meminger should operate as a mortgage. While this is true, there is an averment of a loan and the taking of the deed as security for its repayment. This is sufficient to constitute the deed a mortgage. Nor, under the case stated was it necessary to aver a tender. But as there is no positive and definite allegation as to the amount of money made by the present holder of the property, over and above Hull’s claims against it, but only an assumption, there should be in the bill an offer to pay the defendants any sum or sums of money which may be ascertained to be due them, or either of them on an accounting, that is due them from the bankrupt estate. The demurrer will be sustained on that ground, and overruled on all the others. The complainant will have leave to amend his bill and the defendants be allowed 60 days after notice of the amendment in which to answer or plead.”</p> <p>On the 14th day of September, 1908, the complainant filed his amended bill, which with the exhibit attached thereto is as follows, omitting the purely formal parts:</p> <p>“Tour orator, Arthur E. Burr, as Trustee in Bankruptcy of the estate of the Port Tampa Phosphate Company, a corporation, brings this, his bill of complaint, against Joseph Hull, the Prairie Pebble Phosphate Company, a corporation, and Savannah Trust Company, a corporation, and thereupon your orator complains and says.</p> <p>First. That heretofore, to-wit: on the 19th day of November, A. D. 1904, one Clarence A. Boswell of Polk County, Florida, made and entered into a certain contract with one Hiram W. Rowell, whereby the said Clarence A. Boswell agreed to sell to the said Hiram W. Rowell, and the said Hiram W. Rowell agreed to purchase from the said Clarence A. Boswell the following described premises lying, being and situate in Polk County, Florida, to-wit: The south half, and the south half of the northeast quarter, and the southeast quarter of the northwest quarter of Section thirty-four (34) in Township Twenty-nine (29) South Range Twenty-three (23) east, containing in all four hundred and forty (440) acres more or less, subject to a right-of-way for a railroad track across said land according to the terms of an agreement of even date therewith, together with the buildings situate thereon, consisting of three storehouses, one mill building, eleven dwelling houses and one commissary and office building. Also the following personal property located upon said premises and described as follows: One drier, three (3) stationary engines, six boilers, five force pumps, one lot of tools, one Worthington pump 6x9x10, one feed and service pump 3” suction and 4” discharge; all elevator chains and buckets, two rock cars, twelve hundred feet steel rails, all pulleys, shaftings, sprockets, wheels, rotary and wrinsing screens, debris, hoppers, one Cameron pump No. 10, one Cameron pump 18x9x20, one Cameron pump No. 15564 6” discharge and 6” suction, one lot of boiler tubes, all iron and galvanized pipe, all pipe fittings, gears, pulleys, valve and valve fittings, one lot of box and post hangers, two vertical marine engines, one Moran joint, and all other personal property including office furniture and fixtures.</p> <p>Second. That thereafter to-wit: on December 6th, A. D. 1904, the said Hiram W. Eowell for a valuable consideration assigned and transferred the said contract together with all of his right, title and interest in and to the premises therein described to the Port Tampa Phosphate .Company, a corporation, and the said Port Tampa Phosphate Company immediately entered into possession of the said premises described in the said contract and became the equitable owner thereof subject to the payment to the said Clarence A. Boswell of an unpaid balance of the purchase price amounting to approximately twelve thousand dollars.</p> <p>Third. That the said premises so embraced in the said contract assigned by the said Hiram W. Eowell to the said Port Tampa Phosphate Company were acquired by it for the purpose of carrying out the objects for which the said corporation was incorporated, viz: the establishment and operation of a phosphate plant, and the said premises of which the said Port Tampa Phosphate Company became the equitable owner as aforesaid, subject to the payment of the unpaid balance of the purchase price to the said Clarence A. Boswell, constituting the entire plant and property then or thereafter acquired by the said Port Tampa Phosphate Company for the purpose of carrying out the aforesaid purpose for which it was incorporated, and the assignment of his rights under the aforesaid contract with the said Clarence A. Boswell by the said Hiram W. Rowell was made to the said Port Tampa Phosphate Company in consideration of certain stock of the said corporation issued to him as an equivalent for the rights so transferred to the said corporation.</p> <p>Fourth. That immediately upon the transfer by the said Hiram W. Rowell to the said Port Tampa Phosphate Company of his rights under the aforesaid contract with the said Clarence A. Boswell and his rights in and to the premises therein mentioned and described the said Port Tampa Phosphate Company entered into possession of the said premises, and proceeded to complete and extend the phosphate plant which had been partially constructed thereon, preparatory to commencing mining operations when the same should be fully completed, so as to carry out the object for which the said Port Tampa Phosphate Company was incorporated, and in making the said improvements and completing and ex tending of said plant the said Port Tampa Phosphate Company expended a large sum of money on the said premises, to-wit: upwards of the sum of sixty thousand dollars.</p> <p>Fifth. That thereafter, to-wit, on the 27th day of May, A. D. 1905, the said Port Tampa Phosphate Company being pressed for payment by E. C. Stuart and C. G. Meminger, to whom the said Clarence A. Boswell had assigned his rights under the aforesaid contract, upon which there was then due an unpaid balance amounting to upwards of the sum of twelve thousand dollars, applied to the defendant Joseph Hull for a loan of money with which to pay the said balance, together with a small amount of additional indebtedness then owed by the said Port Tampa Phosphate Company, and also certain other moneys that would be required by the said Port Tampa Phosphate Company to complete the said phosphate plant on the said premises, and the said Joseph Hull agreed to advance the said moneys to the said Port Tampa Phosphate Company, but, the legal title to the said premises not having vested in the said Port Tampa Phosphate Company was unwilling to accept a mortgage from it and required that the deed of conveyance to said premises to be executed on the payment of the balance of the purchase price should be made to him, the said Joseph Hull, so as to secure him for the money then advanced and thereafter to be advanced by him for the completion of the said plant.</p> <p>Sixth. That the said Port Tampa Phosphate Company being financially embarrassed and unable to procure money with which to pay the balance of the purchase price of the said premises and to complete the said plant and protect it in its outlay already made amounting to upwards of the sum of sixty thousand dollars in cash its Board of Directors assented to the terms of the defendant, Joseph Hull, and agreed that the said deed of conveyance to the said premises, to be delivered on payment of the balance of the purchase price, should be made to the said defendant, Joseph Hull, upon his entering into an obligation to convey the same to the said Port Tampa Phosphate Company upon being repaid the sum of money then advanced by the said defendant, Joseph Hull, and such sums as he might thereafter advance for the purpose of completing the said phosphate plant, but the said proposition of the said Joseph Hull was never submitted by the said Board of Directors to the stockholders of the said Port Tampa Phosphate Company, or assented to by the stockholders of- the said Port Tampa Phosphate Company, although the said premises embraced and included all of the property and assets of the said corporation.</p> <p>Seventh. That in pursuance of the said agreement between the defendant, Joseph Hull, and the Board of Directors of the said Port Tampa Phosphate Company, the defendant Joseph Hull, advanced the sum of thirteen thousand, four hundred and four and 77-100 dollars, with which to pay to E. C. Stuart and C. G. Meminger the balance of the purchase price of the said premises, and the said premises at the request of the Board of Directors of the said Port Tampa Phosphate Company were conveyed by the said E. C. Stuart and C. G. Meminger, then the owners thereof, to the said Joseph Hull, and contemporaneously therewith as part of the same transaction, the defendant Joseph Hull, exécuted and delivered to the said Port Tampa Phosphate Company an agreement in writing dated June 9th, 1905, whereby he agreed to convey the said premises to the said Port Tampa Phosphate Company upon the repayment to him within four months from said date of the said sum of thirteen thousand, four hundred and four and 77-100 dollars so advanced by him and such other and further sums of money as he might thereafter advance for the improvement or operation of the said property, together with a profit of sixteen per cent on any sum either advanced or paid out, all of which will more fully appear by reference to a true copy of the said agreement which is hereto annexed, marked Exhibit ‘A’ hereto and hereby made by reference a part of this bill of complaint as fully as if the same were herein incorporated in haeo veri a.</p> <p>Eighth. That after the execution and delivery of the said deed of conveyance of the said premises to the defendant, Joseph Hull, and after the execution and delivery by the said Joseph Hull, and the said Port Tampa Phosphate Company of the instrument, exhibit ‘A’ hereto, the said Port Tampa Phosphate Company continued and remained in possession of the said premises, and continued to make improvements thereon, and continued to endeavor to complete the phosphate plant thereon so as to place the same in condition for mining phosphate from the said premises, and the said Joseph Hull advanced to the said Port Tampa Phosphate Company for the purpose of carrying on the said improvements and completion of said plant, sums of money from time to time, the exact amount of which is unknown to your orator, but your orator alleges on information and belief that the sums of money so advanced by the said defendant Joseph Hull, subsequently to the execution of the said deed of conveyance to him amounted to approximately the sum of Twelve thousand dollars, and all of the said moneys so advanced were applied by the said Port Tampa Phosphate Company towards the construction, extension and completion of the said phosphate plant on the said premises.</p> <p>Ninth. That the said Port Tampa Phosphate Company continued in possession of the said premises, and continued to endeavor to complete the same, preparatory to commencing mining operations thereon, until, to-wit, November 9th, A. D. 1905, when, owing to its embarrassed circumstances, a petition in bankruptcy was filed against it in the District Court of the United States for the District of Massachusetts, under the laws of which State the said Port Tampa Phosphate Company was incorporated, and where it had its domicile, and the said Port Tampa Phosphate Company, to-wit, on the 27th day of November, A. D. 19.05, was duly adjudged a bankrupt by the said District Court of the United States for the District of Massachusetts, and your orator was duly appointed on the said date as Trustee of the said bankrupt corporation, and thereafter, to-wit, on the 27th day of December, A. D. 1905, your orator duly qualified as such Trustee, and is now trustee of the bankrupt estate, and as such trustee your orator brings this bill of complaint.</p> <p>Tenth. That immediately upon the appointment of your orator as trustee in bankruptcy of the said Port Tampa Phosphate Company all of the property including that herein described of which the said Port Tampa Phosphate Company was in possession at the time of the said adjudication and of the appointment and qualification of your orator as trustee in bankruptcy vested in your orator as such trustee in bankruptcy, and your orator became entitled to the possession thereof, but your orator alleges that after his appointment and qualification as trustee in bankruptcy of the estate of said corporation, the defendant, Joseph Hull, instituted an action of ejectment in the Circuí fc Court of the United States for the Southern District of Florida against one N. B. Childs and the said Port Tampa Phosphate Company, to which your orator was not made a party, nor did he become a party, and in which no service was had upon the said Port Tampa Phosphate Company or any officer, agent or representative of the said Port Tampa Phosphate Company, and in which it did not appear, but in which, as your orator is informed and believes, the only service made was upon N. B. Childs, a deputy sheriff of Polk County, Florida, in possession of the personal property on the said premises under certain writs of attachment issued out of the Circuit Court of Polk County, Florida, and in the said proceeding in the Circuit Court of the United States for the Southern District of Florida to which neither the said Port Tampa Phosphate Company nor your orator were made, or become, parties, the defendant, Joseph Hull, on or about the 3rd day of March, A. D. 1906, secured a judgment by default aud a final judgment purporting to award him possession of the said premises, and under the said judgment the defendant, Joseph Hull, entered into the possession thereof.</p> <p>Eleventh. That thereafter, to-wit, on the 6th day of November, A. D. 1906, the defendant, Joseph Hull, who was then and is now a large stockholder and the president of the defendant, Prairie Pebble Phosphate Company, a corporation, undertook to convey the said premises to the Prairie Pebble Phosphate Company, but your orator alleges that the said Prairie Pebble Phosphate Company at the time of the conveyance to it of the said premises had full notice and knowledge of all the facts hereinbefore set forth, and of your orator’s rights in the premises, and thereafter, to-wit, on the 25th day of July, A. D. 1907, the said Prairie Pebble Phosphate Company undertook to mortgage the said premises, together with other premises, to the defendant Savannah Trust Company of which corporation the defendant, Joseph Hull, was also a large stockholder, and a director and officer, which last mentioned corporation at the time of the execution and delivery to it of the said mortgage, the amount, terms and conditions of which are unknown to your orator, also had full notice and knowledge of all of the facts hereinbefore set forth and of your orator’s rights in the premises.</p> <p>Twelfth. Your orator further alleges that the defendant Joseph Hull, and the defendant, Prairie Pebble Phosphate Company, since acquiring possession of the said premises as hereinbefore set forth, have operated the same as a phosphate plant and mining plant and removed from the soil of said premises and mined therefrom many thousand tons of phosphate rock and sold and disposed of the same, and that if an accounting were had between your orator and the said defendants there would be due to your orator, after paying in full all moneys advanced by the defendant, Joseph Hull, to the said Port Tampa Phosphate Company with interest thereon, a large sum of money to-wit, the sum of one hundred thousand dollars and upwards.</p> <p>Thirteenth. Your orator further alleges that the deed of conveyance of the said premises to the defendant, Joseph Hull, by the said E. C. Stuart and C. G. Meminger, as aforesaid, in consideration of the payment by the said Joseph Hull of the balance of the said purchase price and the further advances to be made by the said Joseph Hull did not operate to make the defendant, Joseph Hull the owner thereof, but merely gave him a security thereon for the amount of his advances and interest for the following reasons, viz :</p> <p>(a) The -said premises constituted the entire plant and property of the said corporation acquired for the purpose of carrying out the business of the corporation for which it was incorporated, and that the same could not be sold by the board of directors of the said corporation without assent of its stockholders, which consent was never requested or given by the stockholders.</p> <p>(b) The said premises after the execution and delivery of the said deed of conveyance to the said Joseph Hull continuously remained in the possession of the said Port Tampa Phosphate Company until after the appointment of your orator as trustee in bankruptcy of the said corporation, and the said Port Tampa Phosphate Company during all that period continuously exercised acts of dominion and ownership over the same with the consent of the defendant, Joseph Hull, and the consideration for the said conveyance was only a fractional part of the actual value of the said premises, and by reason thereof the said conveyance, if a conveyance, was fraudulent and void as to creditors of the said Port Tampa Phosphate Company and your orator alleges that there were such creditors then existing whose claims still remain unpaid.</p> <p>(c) The said conveyance to the said Joseph Hull, in connection with the said instrument of defeasance, Exhibit ‘A’ hereto were and constituted a mere security and the said Port Tampa Phosphate Company at all times, prior to the appointment of your orator as its trustee in bankruptcy, was the equitable owner of the said premises, and your orator is now the equitable owner thereof.</p> <p>Fourteenth. That your orator is entitled to an accounting from the defendants, Joseph Hull, and the Prairie Pebble Phosphate Company to determine the amount of phosphate rock that has been mined and removed from the' said premises, and the other property that has been taken and removed therefrom or consumed by the said defendants, and to a determination on such accounting of the value thereof, and to a decree that the balance found to be due to your orator on such accounting after deducting all moneys advanced by the defendant, Joseph Hull, to the said Port Tampa Phosphate Company shall be paid to your orator as trustee in bankruptcy of the said Port Tampa Phosphate Company, and that the said premises shall be conveyed by the said Prairie Pebble Phosphate Company to your orator as such Trustee in Bankruptcy, and that any claim on the part of the said defendant, Prairie Pebble Phosphate Company, .a corporation, or the said Savannah Trust Company, a corporation, shall be cancelled as clouds upon the title of your orator to the said premises.</p> <p>Fifteenth. And should such accounting when completed as prayed by your orator, show that there is due to the said Joseph Hull from the Port Tampa Phosphate Company on the money advanced to said company, any sum or sums of money whatsoever, your orator stands ready and willing to pay the same to the said Joseph Hull and hereby expressly agrees to pay the same into court as soon as any such amount of indebtedness should be ascertained.</p> <p>To the end, therefore, that the said defendants, Joseph Hull, and the Prairie Pebble Phosphate Company, a corporation, and the Savannah Trust Company, a corporation, and each of them, may if they can show cause why your orator should not have the relief herein and hereby prayed and that they may, but not under oath, answers under oaths of the said defendants being hereby expressly waived, according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to all and singular the premises in as full and particular a manner as if the same were herein set forth as interrogatories and the said defendants specially interrogated in regard thereto.</p> <p>And in view of the premises may it please your Honor to order, adjudge and decree that an accounting be had by and under the direction of a master of the court, to be appointed for that purpose, to ascertain and report to the court the amount in full of all phosphate or other property that may have been removed by the defendant, Joseph Hull, or the Prairie Pebble Phosphate Company from the said premises, or otherwise converted by the defendants as well as the amount due to the defendant, Joseph Hull, for moneys advanced in the payment .of the balance of the purchase price of the said premises, and for expenditures on the said property by the said Port Tampa Phosphate Company after the purchase of the said premises, and to further order, adjudge and decree that the said defendants, Joseph Hull and the Prairie Pebble Phosphate Company should pay to your orator as trustee in bankruptcy of the said Port Tampa Phosphate Company, the balance found to be due him upon such accounting.</p> <p>May it please your Honor to order, adjudge and decre% that the claims of the defendants, Joseph Hull, the Prairie Pebble Phosphate Company, .a corporation, and the Savannah Trust Company, a corporation, and each of them, shall be cancelled and set aside as clouds upon the title of your orator to the said premises, and that they and each of them shall execute .and deliver unto your orator sufficient deeds of release releasing unto your orator any and all their rights or claims therein, and that your orator shall thereupon be quieted in his title to the said premises as against the claims of the said defendants, and each of them.</p> <p>May it further please your Honor to enjoin and restrain the defendants, Joseph Hull and the Prairie Pebble Phosphate Company, a corporation, and each of them, and their and of their agents, servants and employees during the pendency of this litigation from mining or removing any phosphate rock or other property from the premises herein described, and to further order, adjudge and decree that a receiver of the said premises be appointed to take charge and control of the same, and to care for and protect the same during the pendency of this litigation, and that your orator may have such other and further relief as he may be entitled to under the facts set up in his bill.</p> <p>Exhibit ‘ A.’</p> <p>THIS AGREEMENT made this 9th day of June, 1905, between THE PORT TAMPA PHOSPHATE COMPANY, a corporation of the State of Massachusetts of the first part, and JOSEPH HULL of Savannah, Georgia, of the second part;</p> <p>WHEREAS, the said Port Tampa Phosphate Company owns the property hereinafter described under and by virtue of a certain contract dated the 19th day of November, 1904, between Clarence A. Boswell and wife of the first part, and H. W. Rowell of the second part, which said contract has been duly assigned by the said Rowell to the said Port Tampa Phosphate Company; and</p> <p>WHEREAS, the said Port Tampa Phosphate Company, under and by virtue of a certain resolution of the Board of Directors of said company passed on the 23rd day of May, 1905, has sold the said property to the said Joseph Hull and has caused the same to be conveyed to the said Joseph Hull by E. C. Stuart and C. G. Meminger being the assignee of all the rights and interests of the said Boswell and wife under said contract; and</p> <p>WHEREAS, the said Hull has agreed to sell back and reconvey the said property to the said Port Tampa Phosphate Company at any time within four months from the date hereof, upon the payment to him by the said Port Tampa Phosphate Company of the sum of thirteen thousand four hundred and four dollars and seventy-seven cents ($13,404.77) and such other and further sums of money which may have been advanced or paid out by the said Hull, in the improvement or operation of said property, together with a profit of sixteen per cent (16%) on any such, sums so advanced or paid out.</p> <p>NOW, THEREFORE, THIS AGREEMENT WITNESSETH That the said Joseph Hull for and in consideration of the premises, does hereby agree and bind himself, his executors and administrators and assigns, upon the payment to him by the said Port Tampa Phosphate Company or its assigns, of the said principal sum of $13,404.77 and .of such other and further sums which may have been paid out or advanced by him in the operation or improvement of said property, together with a profit of sixteen per cent, on such sums so advanced or paid out, that he shall convey to the said Port Tampa Phosphate Company, or its assigns, all the following described property:</p> <p>The south half, and the south half of the northeast quarter and the southeast quarter of the northwest quarter of Section thirty-four (34) in Township twenty-nine "(29) South Eange Twenty-three (23) East, containing in all four hundred and forty (440) acres more or less, subject to a right-of-way for a railroad track across said land according to the terms of an agreement of even date herewith, together with the buildings situate thereon consisting of three storehouses, one mill building, eleven dwelling houses and one commissary and office building. And also the following personal property now located upon said premises and described as follows: One drier, three (3) stationary engines, six boilers, five force pumps, one lot of tools, one Worthington pump 16x9x10, one feed and service pump 3” suction and 4” discharge; all elevator chains and buckets, two rock cars, twelve hundred feet steel rails, all pulleys, shaftings, sprockets, wheels, rotary and wrinsing screens, debris, hoppers, one Cameron pump No. 10, one Cameron pump 18x9x20, one Cameron pump No. 16564 6” discharge and 6” suction, one lot of boiler tubes, all iron and galvanized pipe, all pipe fitting's, gear, pulleys, valve and valve fittings, one lot of box and post hangers, two vertical marine engines, one Moran joint, and all other personal property including office furniture and fixtures.</p> <p>The Port Tampa Phosphate Company agrees that if it shall fail to exercise its right to repurchase said property within the time prescribed, this contract shall forthwith become void and of non-effect, and the said Joseph Hull shall own said properties free from any claim or demand of the said Port Tampa Phosphate Company.</p> <p>IN WITNESS WHEBEOF the said Port Tampa Phosphate Company has caused this agreement to be executed by its President and said Joseph Hull has executed the same in proper person in duplicate.</p> <p>Signed, sealed and delivered Joseph Hull, in the presence of Port Tampa Phosphate Company.</p> <p>W. W. MacKall H. W. Rowell,</p> <p>Pres.”</p> <p>The amended bill differs from the original bill only in the insertion therein of the paragraph numbered “Fifteenth” and of the general prayer.</p> <p>To such amended bill the defendants interposed two demurrers, which are as follows:</p> <p>“Demurrer of the above named defendants and each of them to that part of the second bill of complaint of the said plaintiff in this cause designated therein by the number ‘Thirteenth’ and divided into sub-sections or paragraphs designated by the letters ‘a,’ ‘b’ and ‘c’ and which reads as follows:</p> <p>‘Thirteenth. Your orator further alleges that the deed of conveyance of the said premises to the defendant, Joseph Hull, by the said E. O. Stuart and C. G. Meminger, as aforesaid, in consideration of the payment by the said Joseph Hull of the balance of the said purchase price and the further advances to be made by the said Joseph Hull did not operate to make the defendant Joseph Hull the owner thereof, but merely gave him a security thereon for the amount of his advances and interest for the following reasons, viz:</p> <p>(a) The said premises constituted the entire plant and property of the said corporation acquired for the purpose of carrying out the business of the corporation for which it was incorporated, and the same could not be sold by the board of directors of the said corporation without assent of its stockholders, which consent was never requested or given by the stockholders.</p> <p>(b) The said premises after the execution and delivery of the said deed of conveyance to the said Joseph Hull continuously remained in the possession of the said Port Tampa Phosphate Company until after the appointment of your orator as trustee in bankruptcy of the said corporation, and the said Port Tampa Phosphate Company during all that period continuously exercised acts of dominion and ownership over the same with the consent of the defendant Joseph Hull, and the consideration for the said conveyance was only a fractional part of the actual value of the said premises, and by reason thereof the said conveyance, if a conveyance, was fraudulent and void as to creditors of the said Port Tampa Phosphate Company and your orator alleges that there were such creditors then existing whose claims still remained unpaid.</p> <p>(c) The said conveyance to the said Joseph Hull, in connection with the said instrument of defeasance, Exhibit ‘A’ hereto were and constituted a mere security and the said Port Tampa Phosphate Company at all times prior to the appointment of your orator as its trustee in bankruptcy, was the equitable owner of the said premises, and your orator is now the equitable owner thereof.’</p> <p>These defendants and each of them by protestation, not confessing or acknowledging all or any of the matters and things in that part of the said plaintiff’s bill contained and hereby demurred to to be true in the manner and form as the same is therein and thereby set forth and alleged, do demur to said part of the said bill and for cause of demurrer show:</p> <p>1. On the ground that the said part and thirteenth section of the bill attempts to state a cause of action separate and distinct from the remainder of the bill of complaint, and does not state any separate cause of action.</p> <p>2. That said part and thirteenth section of the hill in no way aids to make out a cause of action as set up in the remainder of the bill not covered by this demurrer.</p> <p>3. That the plaintiff does not represent the stockholders of The Port Tampa Phosphate Company, and if he did represent them, he is estopped and has lost his right by lapse of time and acquiescence to question the said conveyance to defendant Hull as a valid deed of conveyance of the legal title.</p> <p>4. That evidence is admissible, if admissible at all, under the allegations of the other parts of the bill nor covered by this demurrer of the value of the property at the time of said conveyance to Hull and of the amount Hull paid for said conveyance. And sub-section of said thirteenth section of the bill designated therein by the letter ‘b’ states no issuable facts tending to establish that such conveyance was fraudulent and void as to creditors of the said The Port Tampa Phosphate Company, but states merely an argumentative conclusion of law.</p> <p>5. That sub-section of the thirteenth section of the bill designated by the letter ‘c’ attempts to set up that said deed of conveyance to defendant Hull and his contract with The Port Tampa Phosphate Company, Exhibit ‘A’ to the bill and made a part thereof, constitute a distinct cause of action separate from and independent of the allegations in the bill not covered by this demurrer, but they do not state such cause of action.</p> <p>6. And on other grounds apparent on the face of the said thirteenth section of the bill.”</p> <p>“The demurrer of the above named defendants to a part of second bill of complaint of the said plaintiff in this cause.</p> <p>These defendants by protestation, not confessing or acknowledging all or any of the matters and things in the said plaintiff’s bill contained to be true in the manner and form as the same are therein and thereby set forth and alleged, do severally demur to a part of the said bill and for cause of demurrer show:</p> <p>1. That the plaintiff hath not in and by the part of his said bill demurred to make or stated such a case as entitled him in a court of equity to the relief against them as prayed for in the said bill, or to any relief.</p> <p>2. Because in the part of the said bill of complaint demurred to there is no direct, positive averment that there was any agreement or contract between the defendant Joseph Hull and the said The Port Tampa Phosphate Company that the deed of conveyance of the property described in the bill by E. C. Stuart and C. G. Meminger was taken and held as a mortgage for money lent; and in this respect the said bill is too vague and uncertain to tender any issue. There is no averment in the bill thát the defendant Hull lent any money to The Port Tampa Phosphate Company or that The Port Tampa Phosphate Company borrowed any money from the said Hull. The bill shows on its face and Exhibit attached thereto that The Port Tampa Phosphate Company never agreed to pay said Hull any money and never became bound to do so.</p> <p>3. Because in and by the 14th section of the said bill and the prayer thereof the plaintiff claims relief which this court is not competent to give in this: that this court has no power or jurisdiction to apply the rents and profits of the premises which may be due from the .defendants or any of them — if any is due — to the payment of the moneys admitted in the said bill and claimed .to be due Joseph Hull as a -creditor of the said bankrupt. This court, is without power or jurisdiction to decree what, if anything, may be due from the defendants or either of them for phosphate removed from the land, to be applied to pay what is due Joseph Hull as set forth- in the bill, whether the case made by the bill is that of a mortgage or not, because such moneys if any belong to the other creditors of the bankrupt.</p> <p>4. Because the bill does not allege that the amount that the plaintiff admits to be due said Hull was ever tendered him before this suit was brought; and because there is no offer in the bill to do equity or that the plaintiff is ready, able and willing to pay the amount he admits to be due the said Hull; nor is there any excuse stated in the bill for not having tendered the amount due Hull before suit brought, and for not alleging in the bill that plaintiff was ready, able and willing to pay the amount which may be decreed to be due the said Hull, including moneys which may be found to be due to the defendants or either of them on account of improvements and betterments made by the defendants or either of them in good faith on the said properties.</p> <p>5. Because it is shown in and by the said bill of complaint that the plaintiff as Trustee in Bankruptcy has a full and complete and adequate remedy at law; that Ms remedy at law is more complete and adequate than this court is competent to give upon the theory of the rights of the Trustee presented by the said bill.</p> <p>6. The bill does not pray any discovery, and the court is without power or authority to grant the specific relief prayed.</p> <p>7. No case is made by the bill for an accounting in equity, it appearing from the bill that if the plaintiff did not know how much money Hull paid out it was because plaintiff chose to be wilfully ignorant and could have known by making due inquiry either of the said Hull or of the officers of the said The Port Tampa Phosphate Company.</p> <p>7£. Because the bill is multifarious and a misjoinder of distinct causes of action, in that the Savannah Trust Company has no interest in respect to the amount Hull or The Prairie Pebble Phosphate Company owe plaintiff for rock removed, nor has either of the latter defendants any interest in respect to the amount the other owes for rock removed, and it is in violation of good pleading in a suit to remove a cloud on title to join therein money demands against a part of the defendants.</p> <p>8. And for divers other good and sufficient grounds of demurrer appearing upon the face of said bill.</p> <p>This demurrer is to all of the said second bill of complaint except that part of it or section numbered 13.”</p> <p>On the 9th day of February, 1909, the trial court made an order overruling each of such demurrers. From this interlocutory decree or order the defendants have entered their appeal to this court and have filed the following assignments of errors:</p> <p>“First. The court erred in overruling the demurrer of the several defendants to all of the bill of complaint except the part of section thereof numbered thirteenth, in this: That the court should have sustained said demurrer on the ground that the facts stated in the bill do not entitle the plaintiff to any relief in a court of equity; and particularly because the said bill does not state any facts in issuable form to admit evidence to turn a deed absolute on its face into a mortgage security, there being in the said bill of complaint no direct, positive averment that there was any agreement or understanding between .the defendant Joseph Hull and the said Port Tampa Phosphate Company that the deed of conveyance of the property described in the bill, by E. C. Stuart and C. G. Meminger was received and held as a mortgage for money lent; and in this respect the bill is too vague and uncertain to tender any issue upon that subject. And because there is no averment in the bill that the defendant Hull ever lent any money to the Port Tampa Phosphate Company or that said company ever borrowed any money from the said Hull; nor does the bill show that the said company ever agreed to pay any money, or ever become bound to pay any money.</p> <p>Second. The court below erred in overruling the said demurrer to said bill of complain on the ground that the plaintiff: claims in and by the 14th section of said bill and prayer thereof relief which the court below was not competent to give, in this: That the said court had no power or jurisdiction to apply the rents and profits of the premises or the amount due from defendants for phosphate rock taken therefrom, if any was due, to the payment of moneys admitted in the said bill to be due Joseph Hull as a lien creditor of the said bankrupt. All moneys, if any, due the plaintiff: on account of phosphate rock taken from the premises described in the bill belong to the general creditors of the bankrupt and neither the said trustee or the said court or any other court has power, authority or jurisdiction to apply the same to pay the said moneys admitted to be due Hull on the theory that he is a mortgagee.</p> <p>Third. The court erred in overruling the said demurrer in this: That the bill does not allege that the amount the plaintiff admitted in said bill was due the said Hull was ever tendered him before this suit was brought.</p> <p>Fourth. The court erred in overruling the said demurrer in this: That there is no averment in the bill of any offer to do equity, or that the plaintiff is ready, able and willing to pay the amount he admits to be due said Hull, nor is there any averment in the bill that the plaintiff is willing to pay the amount which the court may decree to he due the said Hull or any of the defendants.</p> <p>Fifth. The court erred in overruling the said demurrer in this: That it is shown in and by the said bill of complaint that the plaintiff as trustee in bankruptcy has full and complete and adequate remedy at law, and that such remedy at law is more complete and adequate than a court of equity is competent to give upon the theory of the rights of the trustee as plaintiff, prayed by the said bill.</p> <p>Sixth. The court erred in overruling the said demurrer in this: That the bill does not pray any discovery and the court was without power or authority to grant the specific relief prayed.</p> <p>Seventh. The court erred in overruling said demurrer in this: That no case is made in and by the said bill for an accounting in equity, it appearing from the allegations in the bill that if the plaintiff did not know exactly how much money Hull paid out to the said Port Tampa Phosphate Company it was because plaintiff chose to be wilfully ignorant on the subject, and could have known the amount of said moneys by making the proper inquiry either of the said Hull or of the officers of the said Port Tampa Phosphate Company.</p> <p>Eighth. The court erred in overruling the said demurrer in this: That the bill shows on its face that it is multifarious and a misjoinder of distinct causes of action in that the defendant The Savannah Trust Company has no interest with respect to the amount of money Hull or the Prairie Pebble Phosphate Company owe for rock removed from the said premises; nor have either of the last named defendants any interest in the amount the other owes for said rock removed.</p> <p>Ninth. The court erred in overruling the said demurrer in this: That it appears from the said bill that it is one io remove a cloud on title, and the plaintiff in his said bill has joined therein a money demand against some or all of the defendants which is contrary to the rule of good pleading.</p> <p>Tenth. The court below erred in overruling said demurrer on the part of the said Prairie Pebble Phosphate Company and the said Savannah Trust Company on the ground that it is not shown in and by the said bill and the facts alleged therein that the said defendants were not bona fide purchasers for value without notice, but the contrary is shown in the said bill.</p> <p>Eleventh. The court erred in overruling the second demurrer to the thirteenth paragraph or section of said bill, which in the said bill is divided into sub-sections designated by the letters a, b and c, and which said thirteenth section of the bill reads as follows:</p> <p>‘Thirteenth. Your orator further alleges that the deed of conveyance of the said premises to the defendant Joseph Hull by the said E. C. Stuart and C. G. Meminger as aforesaid, in consideration of the payment by the said Joseph Hull of the balance of the said purchase price and the further advances to be made by the said Joseph Hull did not operate to make the defendant, Joseph Hull, the owner thereof, but merely gave him a security for the amount of his advances and interest for the following reasons, viz:</p> <p>(a) The said premises constituted the entire plant and property of the said corporation acquired for the purpose of carrying out the business of the corporation for which it was incorporated, and the same could not be sold by the board of directors of the said corporation without assent of its stockholders which consent was never requested or given by the stockholders.</p> <p>(b) The said premises after the execution and delivery of the said deed of conveyance to the said Joseph Hull continuously remained in the possession of the said Port Tampa Phosphate Company until after the appointment of your orator as trustee in bankruptcy of the said corporation, and the said Port Tampa Phosphate Company during all that period continuonsly exercised acts of dominion and ownership over the same with the consent of the defendant Joseph Hull and the consideration for the said conveyance was only a fractional part of the actual value of the said premises, and by reason thereof the said conveyance, if a conveyance, was fraudulent- and vpid as to creditors of the said Port Tampa Phosphate Company and your orator alleges that there were creditors then existing whose claims still remains unpaid.</p> <p>(c) The said conveyance to the said Joseph Hull in connection with the said instrument of defeasance Exhibit ‘A’ hereto were and constituted a mere security and the said Port Tampa Phosphate Company at all times prior to the appointment of your orator as its trustee in bankruptcy was the equitable owner of the said premises and your orator is now the equitable owner thereof.’</p> <p>Said error consists in this: That by the said thirteenth section it appears that the transaction finally consummated between the said Port Tampa Phosphate Company and the said Joseph Hull was a conditional sale of the premises in question, and that the said company not having paid the said Hull within the time limited in the contract Exhibit ‘A’ to the said bill, the said Hull became and was the absolute owner of the said premises, and in this: because the plaintiff does not represent the stockholders of the said company and could not ask that the said deed be set aside in their behalf. And in this: Because the subdivision ‘b’ of the said section thirteen does not state any case for setting aside said conveyance to the said Hull, on the ground of inadequacy of price. And in this: Because the ground of relief in subsections ‘a’ and 9)’ of the said thirteenth section are inconsistent with each other, and inconsistent with the grounds for relief attempted and imperfectly set up in sections fifth and sixth and seventh of the said bill of complaint.”</p> <p>The complainant also filed a cross assignment of error based upon the order sustaining the demurrer of the defendants to the original bill upon the ground stated therein.</p>

<p>1. A petition for a rehearing in this court which suggests nothing in the case as .presented that has not been fully considered by the court in making its decision, will be denied, the proper function of a petition for a rehearing here being to present to the court some point which it overlooked or failed to consider, by reason whereof its judgment is supposed to be erroneous.</p> <p>2. Any indefinite or uncertain allegations that may appear in a bill of complaint should be taken most strongly against the pleader.</p> <p>3. Under the statutes of this State a mortgage acquires only a specific lien on the property of another described in the mortgage, and an “instrument of writing conveying or selling .property, either real or personal, for the purpose or with the intention of securing the payment of money,” may upon its face convey title to property, subject to the provisions of the statute that it “shall be deemed and held a mortgage,” if by extrinsic facts the .statute is shown to apply.</p>

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

<p>This case was decided by the court En Banc.</p> <p>Appeal from 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 the court En Banc. Appeal from the Circuit Court for Hillsborough County. Statement. On December 21st, 1908, John M. Prall brought in the circuit court for Hillsborough county, Florida, a suit in equity for a divorce from his wife Emma L. Prall.

This case was decided by Division A. Appeal from the Circuit Court for Santa Eosa 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 Marion 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 Manatee 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.

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

<p>Circuit Court — Appellate Jurisdiction only in Cases Appealed to It From County Judge's Court.</p> <p>Under the Florida constitution and laws circuit courts have only appellate jurisdiction-in civil and criminal cases appealed from the courts of county judges, and in such caises circuit courts cannot exercise any original jurisdiction, such as permitting new or amended affidavits or charges to be there filed for the first time, or by trying the case anew before the judge or a jury, but in such cases the circuit courts act appellatively only, and review and pass upon the case as tried in the county judge’s court upon the transcript of record brought up by the appeal, and simply reverse or affirm as error may or may not appear from such record. The appeal in such a case from the county judge’s court to the circuit court operates simply as a common law writ of error.</p>

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