Volume 65 — Florida Reports

<p>Writ of error to the Circuit Court for Duval County.</p>

<p>Appealed from the Circuit Court for Monroe County.</p>

<p>Appealed from the Circuit Court for Duval County.</p>

<p>Apjxealed from the Circuit Court for Madison County.</p>

<p>Writ of error to the Circuit Court for Hillsborough County.</p>

<p>In granting a decree for divorce the Circuit Court exercises a discretion in awarding the custody of minor children, having a due regard to the condition and fitness of the parents and the interests of such children, the power being reserved to alter or modify the decree in this respect from time to time, upon a proper showing, as the exigencies of the case or altered conditions may seem to require.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p>

<p>Writ of Error to the Circuit Court for Orange County.</p>

<p>1. Assignments of error predicated upon alleged facts and rulings that are not disclosed by the record cannot be considered by an appellate court.</p> <p>2. Where the brief for plaintiff in error contains simply a bare statement that a ruling of the trial court is erroneous, no reasons being given, no principles of law stated and no authorities cited, an assignment of error based upon such ruling will be treated as abandoned for failure to argue the same, unless the error complained of is so glaring or patent that no argument is needed to demonstrate it.</p> <p>3. Where an assignment of error in a criminal prosecution for forgery is based upon the overruling of the ground of objection to a question propounded to State witness on his redirect examination, “we object, that is purely a matter of opinion,” and the record discloses that such witness had testified fully as to all the facts and circumstances concerning such alleged forged instrument with which he was acquainted, both in his direct examination and on the rather lengthy cross-examination to which he was subjected, during which the defendant repeatedly called for expressions of opinion from the witness as to matters connected with such statement, and it is not suggested or pointed out wherein the answer of the winess to the question could have been harmful to the defendant, such assignment will be held to be without merit.</p> <p>4. An assignment based upon an alleged remark or statement made by the trial judge during the progress of a trial cannot be considered by an appellate court where the record fails to show any objection or exception thereto or ruling thereon.</p> <p>5. An assignment based upon the sustaining of an objection interposed by the State to a question propounded by the defendant to a witness is without merit when the record discloses that prior to the interposing of the objection the witness had answered the question and the defendant had received the full benefit thereof, no motion having been made or sustaind to strike out such answer.</p> <p>6. In treating an assignment of error based upon the overruling of the motion for a new trial, an appellate court will consider only such grounds of the motion as are argued before it.</p> <p>7. A refusal of a requested instruction cannot be excepted to in the motion for a new trial.</p> <p>8. The refusal of the trial court to grant a new trial for insfficincy of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not be disturbed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust.</p>

<p>Writ of error to the Circuit Court for DeSoto County.</p>

<p>Even though litigation may not be effective in all respects because of circumstances arising after appellate proceedings are taken the appellate court does not thereby lose jurisdiction of the cause, and it may be retained for the determination of questions properly presented involving the duties and authority of public officials that are of general interest to the public.</p>

<p>•Writ of error to the Circuit Court for Pinellas County.</p>

<p>1. The views of this court heretofore expressed are repeated, with reference to the proper preparation of bills of exceptions so as to facilitate the work of this court in passing upon the materiality and relevancy of matters excepted to, and also with reference to an ■ unnecessarily large number of assignments of error, and of requested instructions to the jury.</p> <p>2. In an action for damages for personal injury pain and suffering where the plaintiff’s foot was amputated, evidence that he suffered great trouble with the stump of his leg in trying to wear an artificial limb, that' his nervous system was injured, and other sufferings, the direct and proximate result of the injury he received, is competent evidence.</p> <p>3. Where it is not shown that the answer of a witness of plaintiff was injurious to defendant, no error is shown.</p> <p>4. It is not erroneous for the court to strike out the answer of a witness in which he undertakes to give the understanding of the crew of one train as to the movements of another train. This was merely opinion evidence.</p> <p>5. The question of permitting a view by the jury is one which addresses itself to the discretion of the trial Judge; and to reverse his ruling denying a view it must appear that injury resulted to the party applying therefor.</p> <p>6. Where an action for damages for personal injury is based on the Employers Liability Acts of Congress of April 22, 1908, and the Safety Appliance Acts of Congress of 1893, and' amendments, there is no occasion for the trial judge to charge the jury upon the question of “assumed risks.”</p> <p>7. Where matters discussed in a brief have no relation to the subject-matter of an assignment of error and there are no page references in the record or brief to guide this court in discovering what is intended to be presented’, the assignment will not be considered.</p> <p>8. Where several assignments of error are grouped in the brief of plaintiff in error and one assignment fails, they all fail.</p> <p>9. When the evidence is conflicting, this court cannot reverse a judgment unless it appears that the jury were influenced by bias, prejudice or other improper motive.</p>

<p>Writ of error to the Circuit Court for Calhoun County.</p>

<p>Writ of Error to the Circuit Court for Duval County.</p>

<p>1. When it appears that no injury could accrue to a defendant by an irregularity not amounting to a substantial departure from the requirements of law in the selection and empanel-ling of jurors, an objection thereto should not avail.</p> <p>2. Where the insanity of the accused is a material issue in a criminal prosecution, the court should by charges appropriate to the evidence in the case, submit to the jury for their determination the question whether the accused at the time of the unlawful ac-t alleged against him had a sufficient degree of reason to know that he was doing an act that was wrong.</p> <p>3. In order to acquit on the ground of insanity, a defendant charged with homicide, he must have been insane at the time the unlawful act was committed.</p> <p>4. It is not sufficient that a defendant was insane before or after or both before and after an alleged unlawful act, but he must have been insane at the particular moment of the homicide. If, however, insanity of a permanent type or continuing nature, or characterized by a habitual and confirmed disorder of the mind, not temporary or occasional, is shown to have existed prior to the commission of the act, it would be presumed to continue up to the commisison of the act, unless the presumption be overcome by competent evidence.</p> <p>5. The mental effects of a mere voluntary intoxication may not excuse the commission of an unlawful act or relieve from its consequences; but if excessive and long continued use of intoxicants produces a mental condition of insanity permanent or intermittent, which insane condition exists when an unlawful act is committed, such insane mental condition may be of a nature that would relieve the person so affected from the consequences of the act that would otherwise be criminal and punishable</p> <p>6. Where there is substantia] though conflicting evidence of a mental unsoundness of the accused at the time of the unlawful act alleged, which mental condition was not caused by a mere voluntary intoxication, or was not merely “moral insanity” or an “irresistable impulse,” the trial court .should give appropriate charges on the issue of the sanity or insanity of the accused at the time of the unlawful act, when it is a material issue, so that the jury may be correctly and fully advised or the law applicable to all the evidence.</p> <p>7. Where material error in charging the jury occurs and it appears from the record that the jury reasonably could have been misled by sucb error to the injury of the defendant, a reversal may result.</p>

<p>1. A shipment of property cannot be regarded and treated as both intra-state and inter-state. It must be deemed and held to be one or the other. It is improper, in an action brought by the shipper against the railroad company, seeking to recover damages occasioned by the unreasonable delay by the defendant in transporting the same, to include counts in the declaration, treating such shipment in each aspect.</p> <p>2. In an action against a railroad company, seeking to recover damages alleged to have been occasioned by the unreasonable delay by the defendant in transporting a carload of tomatoes which had been entrusted to it for shipment, where it clearly appears from the declaration that such shipment was inter-state and that such action is based on what is generally known as the Carmack amendment to the Hepburn Act, being Section 20, as amended by the Act of June 20, 1906, 34 Statutes at Large, 584, then Chapter 5618 of the Laws of Florida, has no applicability, being confined to intra-state shipments, and a motion is properly granted striking from the counts in the declaration certain portions thereof which seek to recover interest and attorney’s fees under the provisions of such Chapter 5618 of the Laws of Florida, Acts of 1907, page 101.</p> <p>3. Rule XIX, adopted by the State Railroad Commission, relating to demurrage, has no applicability to inter-state shipments, but must be confined to intra-state shipments.</p> <p>4. It is error to sustain a demurrer to a declaration which states a cause of action against the defendant. .</p>

<p>1. Testimony that the accused shot and killed the deceased is proof of the corpus delicti.</p> <p>2. A court may ask a witness the repeat an answer.</p> <p>3. The evidence sustained the verdict.</p>

<p>1. No abuse of judicial discretion is shown by a Circuit Judge in refusing to enlarge the time for taking testimony in a chancery case, when the application to enlarge was made six weeks after the cause had been properly set down for hearing on bill, answer and replication, and no sufficient explanation is made of the delay in making the application.</p> <p>2. The rule with reference to allowing the dismissal of an equity cause by complainant without prejudice, enouced in Tilghman Cypress Co. v. John R. Young Co., 60 Ma. 382, 53' South. Rep. 939, reaffirmed and applied.</p> <p>3. Where in a bill to remove a cloud upon the title to land, there is no allegation that the complainants were in the possession of the land when the bill was filed, and when the allegations that the lands “have been for several years and are now uncultivated and unimproved” is denied by the answer, and the case is finally heard on bill, answer and replication, there i s no error committed in dismissing the bill.</p>

<p>Writ of Error to the Circuit Court for Escambia County.</p>

<p>Writ of error to tiie Circuit Court for Orange County.</p>

<p>1. Upon a bill for an accounting without specific prayers, a decree was passed ordering an accounting in general terms; an appeal therefrom does not call for an adjudicating as to specific items.</p> <p>2. A petition for modification of a supersedeas will be denied, when no great emergency appears and the cause has been reached for final hearing.</p>

<p>In an action for an alleged negligent injury where the evidence or liability is conflicting, the finding of the jury will not be disturbed when no controlling reason for doing so appears by the record.</p>

<p>On Eehearing.</p> <p>1. After verdict and judgment an appellate court may consider the testimony -to determine whether there is substantial legal evidence to support the judgment and whether it appears that the jury was not governed by the evidence in rendering the verdict.</p> <p>2. While the legal effect of evidence is a question of law to be reviewed by the court, conflicts in the testimony and questions of the credibility of witnesses are eliminated by the verdict, when there is substantial legal evidence to support the verdict, and it does not appear that the jury misapplied the law or were not governed by the evidence in making their finding.</p> <p>Rehearing denied.</p>

<p>‘Appealed from the Circuit Court for Sumter County.</p>

<p>In a prosecution based on the last clause of Section 3519, General Statutes of 1906, the open and gross lewdness and lascivious behavior denounced by the statute must be such conduct as would bring upon a husband and wife the penalty of the statute, extremely indecent, immoral and offensive. The evidence in this case does not reveal such a condition of conduct.</p>

<p>An affidavit in attachment which states that the defendant is indebted to the plaintiff in a named sum, and “that the same is an actual and existing debt or demand,” is not fatally defective, and may be amended.</p>

<p>Writ of error to tlie Circuit Court for Hillsborough County.</p>

<p>Writ of error to the Circuit Court for Volusia County.</p>

<p>Writ of error to the Circuit Court of Escambia County.</p>

<p>Jury Trial—Discharging Panels—Selecting New Panels.</p> <p>1. A defendant, as a matter of right, is not entitled to have any particular jurors to try his case. The right of peremptory challenge is a right to reject, and not a right to select.</p> <p>2. The law does not require that the defendant in a criminal case should be personally present in court when an order is made for a special venire from which to complete or to select a jury for the trial of his case; when the names to constitute such special venire are drawn from the jury box; when the venire is issued therefor; when said special venire is returned by the sheriff, nor when the names constituting such venire are called to ascertain whether or not they have been summoned, or are in attendance upon the court, or whether they are disqualified or subject to excuse, none of such proceedings being “steps in or stages of the trial,” within the meaning of the rule requiring the defendant’s personal presence, but all being ministerial preliminaries merely, in which the defendant could have no voice or participation.</p> <p>3. The policy of the law, in all cases in which jurors are empanelled to try the issue, is to secure men for that responsible duty whose minds are wholly free from bias or prejudice either for or against the accused, or for or against either party in civil cases. The authority of the trial court in superintending the making up of the panel is not limited to a decision of the strict legal qualifications of a juror; it may, in the exercise of a judicial discretion, excuse a juror, who, though not legally disqualified, yet has such relations to one of the litigants as might reasonably fill the other with apprehension as to his fairness. A trial court in empanelling a jury to serve in a particular case should have and has a very extensive and almost unlimited discretion in discharging a person called to serve on the jury who might, in the opinion of the court, not make a fit and competent person to serve on that jury. But this rule should not be applied in the retention of jurors.</p> <p>4. The presumption is that all the names placed in the jury-box from which jurors are to be drawn are fit and qaulified generally for jury service, and when one panel drawn therefrom are excused, discharged or exhausted a second panel drawn therefrom are presumed in law to be equally as well qualified to sit upon any given jury as were the members composing the excused, discharged or exhausted panel; and this presumption holds good until a defendant on trial shows that he has been damnified by the imposition upon him of an unfit or disqualified or prejudiced jury or juror.</p>

<p>Personal Injury—Contributory Negligence—For Negligence of Co-Employee, Master Not Liable.</p> <p>1. At the common law in force in this State, except in the case of railroad employees, where the master himself has performed bis duty, be is not liable to any one of bis servants for tbe acts or negligence of any mere fellow servant or co-employee of sueb servant, where tbe fellow servant or co-employee whose negligence causes tbe injury does not sustain a representative relation to tbe master.</p> <p>2. At the common law, in force in this State except in tbe case of railroad employees, where a servant is guilty of negligence that contributes proximately to bis injury, be cannot bold tbe master liable for such injury.</p>

<p>Appealed from the Circuit Court for Manatee County.</p>

<p>When a board of county commissioners of a county deem that it is expedient to issue county bonds for the purpose of constructing paved, macadamized or other hard-surfaced highways and adopts a resolution, in accordance with the provisions of Section 786 of the General Statutes of 1906, wherein they determine that bonds shall be issued to the amount of one million dollars, running for a period of thirty years, bearing interest at the rate of 5% per annum, such bonds to be dated on a certain designated date, and it is further provided in such resolution that no more than $250,000.00 of these bonds shall be sold or proceeds used in any one year, and such resolution as adopted is published, in accordance with law, and at an election called for that purpose, which resulted in a ratification of such resolution by a majority of the votes cast, such restriction as to the issuance of such bonds is binding, and such board of county commissioners may be restrained, upon a bill filed by a citizen taxpayer, from issuing the whole series of bonds before tbe expiration of four years from tbe date so designated.</p>

<p>1. Where the court is legally organized and has jurisdiction of the subject-matter and the adversary parties are given an opportunity to be heard by the actual or constructive service on them of notice of the litigation as required by law, any errors or irregularities or even wrong doing in the proceedings short of an illegal deprivation of an opportunity to be heard will not render the judgment void.</p> <p>2. Where a party has been regularly served with process in a cause, and neglects to appear and defend the suit, but suffers judgment to be taken by default, and he has not been prevent' ed from making a defense by fraud or accident unmixed with negligence on his part, a court of equity will not afford him any relief against the judgment.</p> <p>3. Where an infant defendant in a suit is duly served with process and is represented in the progress of the cause by a guardian duly appointed for that purpose, effective fraud or illegality in the decree rendered against the infant should be made to appear in a bill of complaint filed to impeach such decree.</p> <p>4. It is not error to disregard an amended bill of complaint filed without leave of court.</p>

<p>1. When an answer in equity does not fully answer explicit allegations of the bill, or is an insufficient denial of the material allegations of the bill of complaint, it may be reached by appropriate exceptions; but exceptions for insufficiency are not applicable to new matter set up in an answer as an affirmative defense.</p> <p>2. Where the allegations of a bill of complaint have been substantially answered, exceptions to the answer should be overruled.</p> <p>3. An exception for insufficiency to an entire answer in equity should not be sustained when the answer denies a material allegation of the bill of complaint.</p>

<p>Appealed from the Circuit Court for Santa Rosa County.</p>

<p>Appealed from the Circuit Court for Duval County.</p>

<p>Appealed from the Circuit Court for Duval County.</p>

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

<p>1. Where a woman 66 years old was thrown and injured by the negligent jerking of the train as she attempted to get off the car, a verdict and judgment of $500.00 for the injuries she received is not so grossly excessive as to warrant a reversal.</p> <p>2. The duty of a carrier to safely deliver a passenger at his desired destination involves the duty of observing whether the passenger has actually alighted before the car is again started, set forth in Florida R. Co. v. Dorsey, 59 Fla. 260, text 267, 52 South. Rep. 963, is reaffirmed.</p>

<p>Writ of error to the Circuit Court for Clay County.</p>

<p>1. Parties sui juris may make contracts in their own terms and require performance as made if no rule of law or public policy is violated.</p> <p>2. Where competent parties have deliberately entered into definite and complete stipulations and agreements duly evidenced in writing, and such a contract does not violate any rule of law or public policy, and no fraud, misrepresentation or overreaching, and no violation of a trust or fiduciary relation appears, and it is not shown that undue advantage is being taken of the contract under changed conditions, the courts will give effect to the contract as it discloses the valid intent and purpose of the parties.</p> <p>3. Where a contract is ambiguous or incomplete, necessary provisions to effectuate its purpose may be implied under certain restrictions, but when by the express definite terms of a complete contract any action taken or omitted under it does not appear to be a violation of it, and no fraud or other illegal or inequitable conduct is shown, additional provisions will not be implied for the purpose of showing a violation when it otherwise does not appear, where the contract may be performed according to its terms.</p>

<p>Appealed from the Circuit Court for Pasco County.</p>

<p>1. A telephone company engaged in affording telephone facilities to the public in the community in which it operates thereby performs services of a public nature within the meaning of the constitution; and as such its service is subject to lawful governmental regulation by administrative officers as the legislature may provide, no question of inter-state commerce being involved.</p> <p>2: The Railroad Commissioners of Florida are statutory officers whose powers, authority and duties are those and only those that are conferred expressly or impliedly by the statutes of the State.</p> <p>3. Only the valid orders of the Railroad Commissioners will be enforced by the courts; and orders not authorized by law are not valid or enforceable.</p> <p>±. The statutes contemplate that in regulating service of a public nature, the railroad commissioners shall make administrative rules or orders upon subjects affecting the public and not orders for individual relief, except for a violation of a rule or regulation previously made by the railroad commission covering the subject as it affects the public.</p> <p>5. Whatever may be the limits of the judicial power that, under the constitution as amended in 1897, may be conferred upon or exercised by the Railroad Commissioners, the statutes do not now authorize them to render judicial judgments or decrees, or to make orders in favor of individuals except to remedy a violation of prescribed regulations, in which latter case the order is administrative, and by statute is made merely prima facie reasonable and just, and is subject to judicial review.</p>

<p>An unauthorized transcript from the books of original entry possesses no evidentiary value, to prove an account.</p>

<p>1. The established doctrine that charges and instructions muse be confined to the issues made by the pleadings is applied to the effect that where prospective damages are not alleged or claimed in a declaration it is erroneous to charge the jury they may assess such damages in their verdict.</p> <p>2. In actions by a parent for personal injuries to a child in or- ' der to recover for prospective earning of the child during his minority there must be an allegation in the declaration of special damages in regard thereto, and upon failure to malee such claims the parent can only recover from the time of the injury up to the time of trial.</p> <p>3. A charge can not be said to be harmless which authorized the jury to consider an element of damages, not warranted by the evidence, and which the verdict shows was considered by them.</p>

<p>Jurors—Discriminating Against Africans in Selection of.-</p> <p>1. Our statutes on tbe subject of selection of jurors do not discriminate, and do not authorize discrimination, against any person for jury service because of race or color. But if the executive officers of the courts charged with the duty of executing such statutory provisions, deliberately, in the execution thereof, discriminate against negroes because of their race or color, it would be not only a violation of our statutes; but would violate the provisions of the 14th Amendment to the Federal Constitution; and would render their action null and void in any ease in which such discrimination occurred.</p> <p>2. In the trial of a challenge to the array of jurors composing a special panel selected and summoned by a deputy sheriff , on a venire directing him to summon them from the body of the county at large, where the cause of challenge is that such deputy sheriff in selecting: such panel discriminated against persons of African descent because of their race and color, and where such deputy sheriff as a witness for the State denies any such discrimination and asserts that he lias acted as deputy sheriff in such county for the past eight years, it is error for the court to sustain an objection by the State to the following cross-interrogatory to such deputy sheriff propounded by the counsel for- the' defendant who was a negro: “You have stated that you have been deputy sheriff for eight years, now state whether or not. you have selected any colored men as jurors in this court or any of the courts of the county during this time?" The question was proper cross-examination, and. if answered in the negative would have been strong impeachment of the truth of such deputy sheriff’s denial of the alleged discrimination in a county where it had been undisputedly shown that there were more negroes than white people, and that a great many of such negroes were duly qualified in every way for service as jurors. A wide latitude should be allowed in the cross-examination of a witness in the propounding of questions tending to show the interests, inclination, bias or prejudice of the witness.</p>

<p>Appealed from the Circuit Court of Hillsborough County.</p>

<p>1. Two defendants in a suit in equity against whom a decree pro confesso has been entered may enter their joint appeal from an interlocutory order refusing to open up and vacate such decree pro confesso without joining the other defendants in the appeal, as such other defendants are not necessary parties to the appeal.</p> <p>2. The Clerk of the Circuit Court has no authority, to enter a decree pro confesso against defendants who have a plea on file to the bill which has not been disposed of, even though such plea might not have been proper to be filed under the order of the court. That is a judicial matter to be determined by the Circuit Judge.</p> <p>3. Where a plea is filed to a bill in equity which suggests the death of the sole complainant, it would be erroneous for the Circuit Judge to enter a decree pro confesso against the defendants filing such plea, since the question of whether the proper complainant is before the court should be determined before any further proceedings are had in the cause.</p> <p>4. A suit in equity abates upon the death of the sole complainant, and all proceedings must be suspended until his legal representatives have been brought in.</p>

<p>A public highway crossing or a right to such a crossing should be established in some manner authorized by law before a railroad company may be required under Chapter 6233 Acts of 1911 to build, construct, maintain and keep in good condition a highway crossing over the railroad track.</p>

<p>A mere order made in the absence of the defendant that the jury be brought into court with their verdict, is not reversible error where it affirmatively appears that the defendant was present when the jury were asked if they had agreed on a verdict and when the verdict was received by the court.</p>

<p>Writ of error to the Circuit Court of Escambia County.</p>

<p>Writ of error to the Circuit Court for Volusia County.</p>

<p>1. The confirmation of a sale in partition proceedings is a matter which rests within the sound judicial discretion of the trial court, and the exercise of such discretion will not be interfered with by an appellate court, unless a clear abuse thereof is made to appear.</p> <p>2. As a general rule, in matters which rest within the judicial discretion of the trial court, an appellate court will not interfere, except where an abuse of such discretion is made to appear. This is a salutary rule which conduces to the administration of justice.</p>

<p>Writ of error to the Circuit Court of Polk County.</p>

<p>Where In an action of ejectment a jury is waived and the court finds on sustaining evidence that an agreement for the purchase of the land from the plaintiff who had the legal title, had been broken and abandoned by the defendant, a judgment for the plaintiff should be affirmed, there being no material errors of law or procedure shown by the record.</p>

<p>Where a bill for partition and other relief was filed on the 14th of May, 1891, and where no steps were taken nor action had in the cause from July, 1894, to the 27th of June, 1907, a period of nearly 13 years, and where on the 2nd of September, 1907, several of the defendants made a motion to dismiss the bill under Equity Rule No. 1, for want of prosecution, and where no excuse is shown for the delay except that the record had been lost, no attempt having been made to reestablish it under the provisions of the statute applicable to such a case, the Circuit Judge erred in refusing to grant the motion to dismiss the bill.</p>

<p>1. A defendant in an equity suit' who lias a single affirmative defence which will be decisive of the controversy can avoid giving discovery in aid of the case stated in the bill by setting up his defence by a plea. The mode of setting up a defence is the same whether by plea or answer; but no more than one defence can be set up by plea without the special leave of the court, and such leave will not be readily granted; and if it is granted, each defence must be set up by a separate plea.</p> <p>2. Where a bill in equity is filed for the removal of a cloud from the title to certain described land, and a plea is filed thereto which denies that the complainant is in the actual possession of the land and further denies that the complainant is the owner of the land, such plea contains two separate defences, which is violative of the established rule.</p> <p>3. The proper method of testing the legal sufficiency of a plea in equity, as a general rule, is to set it down for argument, but where the plea sets up two separate defences the complainant may file a motion to require the defendant to eleet which defence he would stand on. The proper order in such a case is that the plea may be set down as an answer at the option of the defendant, or that the defendant must elect which ground of defence he will stand on.</p>

<p>Writ of error to the Circuit Court for St. Johns County.</p>

<p>1. Where the plaintiffs below in one count of their declaration allege the existence of a mortgage as a part of their case, and the sufficiency of such count is not tested by demurrer or otherwise, but defendant rested its defence on a plea denying the facts set up in the count, the defendant is in no condition to object to the introduction of the mortgage in evidence on the grounds of its immateriality or irrelevancy.</p> <p>2. Where a mortgage embraces all the personal property of the mortgagor owned by him when it was executed “and also the full cut of the mill pine and cypress,” such language is too vague and general to be goodxas to third parties as a lien on lumber cut after the mortgage was executed.</p> <p>3. The plaintiff has the right to introduce evidence to prove the allegation of his declaration on which issue has been joined.</p> <p>4. A widow as such has no authority to turn over the assets of her deceased husband’s estate to one of her husband’s creditors, and in a suit by such creditor against a third party for the value of lumber so turned over by the widow, such third party is not prohibited by Section 1505, Gen. Stats, of 1906, from 'testifying that he bought the lumber from the deceased husband and paid him for it.</p>

<p>Under the statute authorizing a recovery by a parent of damages for mental pain and suffering and for loss of service resulting from the death of a minor child, when such death is caused by the wrongful act, negligence, carelessness or default of “any private association of persons,” a parent has a right of action against two individuals who are tenants in common of property which the owners negligently permitted to be and remain in a condition that caused the death of a minor child of such parent.</p>

<p>An order for a final judgment in favor of a defendant, followed by a judgment for costs is not such a final judgment as will support a writ of error.</p>

<p>1 Where the plaintiff and one E. T. owned adjoining lands, and the boundary line between them was a section line running through a cypress swamp and a dispute arose between them as to the ownership of cypress timber on the land of E. T. by reason of some sort of claim to the timber by the plaintiff acquired before E. T. bought his land, and to settle the dispute about the timber they agreed verbally upon a timber line which was altogether on the land of E. T. up to which line the plaintiff was permitted to cut the cypress, and it is expressly agreed that the timber line was not the boundary line, the plaintiff’s right was nothing more than a license to cut the cypress during the life-time of E. T. and in an action of trover to recover the value of logs removed from the land by a grantee of the grantee of E. T., it was incumbent on the plaintiff to make it clear that he cut the logs in controversy while E. T. lived.</p> <p>2. The principles of the case of Watrous v. Morrison, 33 Fla. 261, 14 South. Rep. 805, do not apply to the facts in this case.</p>

<p>Appealed from the Circuit Court for Jackson County.</p>

<p>Writ of error to the Circuit Court for Osceola County.</p>

<p>Appealed from the Circuit Court for Alachua County.</p>

<p>Appealed from the Court; of Record of Escambia County.</p>

<p>Writ of error to the Circuit' Court for Manatee County</p>

<p>1. The construction of a steam railroad track and the running of steam railroad trains thereon is an added burden upon a street not contemplated by a mere dedication of land for ordinary street purposes; and for such added burden the owner of the soil has appropriate remedies.</p> <p>2. In an action of trespass quare clausum fregit against a railroad company for constructing and operating a railroad over plaintiff’s land covered by the street, the entire damage done to plaintiff's abutting property by the construction and proper operation of the railroad may be recovered in an action, and the recovery should not be limited to damage sustained anterior to the commencement of the action.</p> <p>3. A log railroad may be a permanent structure.</p>

<p>1. The principle that no court shall aid men who found their cause of action upon illegal acts, is not only a well settled, hut a most salutary principle.</p> <p>2. One may not recover for liquors sold under a contract requiring the buyer to resell the liquors under the former’s license; the license being personal and transferable only by the permission of duly constituted authorities.</p>

<p>1. In proceedings to remove a cloud, resting upon title to real estate, the complainant must show with clearness, accuracy and certainty the validity of his own legal or equitable title, and the invalidity of the title of the opposing party.</p> <p>2. Upon the expiration of a corporation the legal title to its land passes by operation of law to the stockholders who were the beneficial owners through the corporation.</p> <p>3. "Where it is sought to quiet title or to remove cloud from title to real estate, which is an equity ground independent of statute, it may be appropriate for the court as an incident to the relief sought to require an accounting for damages to the land in- controversy when no rule of law or procedure is* thereby substantially violated; and the propriety of the procedure may depend upon the allegations of fact in a particular case.</p> <p>4. For trespass upon land damages may be recovered as compensation for the depreciation in the value of the land -caused by the trespass.</p> <p>5. The value of the products taken from the soil during a series of years is not the proper measure of damages for trespass upon lands.</p>

<p>1. In an action against three persons as late partners, where the court has jurisdiction of the subject matter and service of process is made upon two of the late partners, the judgment covering the partnership property of all and the individual property of the two who were served with process, is not void.</p> <p>2. In view of the principles of law applicable to partnerships, and of the statute as to service of process on partners, the service of process upon one member of a late partnership in litigation for the adjustment of the partnership indebtedness, is sufficient to authorize a judgment covering the partnership property or interest of the late partner not served, and such judgment does not operate .to deprive such person of property without due process of law.</p>

<p>On Rehearing.</p> <p>1. Where there is in fact a default, the omission to make an entry thereof may be a merely technical and harmless error.</p> <p>2. Where there is a default in fact and it does not affirmatively appear that a default judgment was not entered, and it may be inferred from the record that such an entry was made but was not included in the transcript on writ of error, the final judgment will not be reversed because no default judgment is in the transcript of the record.</p> <p>3. A party in default may make a motion for a new trial in a cause in due course if the proceedings justify it.</p> <p>Rehearing Denied.</p>

<p>Death by Wrongful Act—Statutes Giving Right of Recovery for To Be Strictly Construed—Step-Father Cannot Maintain Action for Death of Step-Son—Misjoinder of Plaintiffs.</p> <p>1. In suits for damages for the death of another by wrongful act or negligence it is well settled that the action is maintainable only by the person who is by the terms of the statute authorized to maintain it.</p> <p>2. Our Florida statute does not give the stepfather the right to maintain an action for the death of his minor stepson, even as to the husband of such stepson’s own mother, and joining such stepfather as a plaintiff in such a case with the deceased minor’s own mother is a fatal misjoinder of parties plaintiff—as under the statute, where, as in this case, the deceased minor’s oivn father is also deceased, only his mother is given the right to maintain the action.</p>

<p>Writ of error to the Circuit Court for Polk County.</p>

<p>Appealed from the Circuit Court of Alachua County.</p>

<p>The refusal of a temporary injunction against a judicial sale at which a party was purchaser will not be reversed where probable laches appear, and the application was presented on the eve of the sale.</p>

<p>Writ of error to the Circuit Court of DeSoto County.</p>

<p>1. An indictment for altering tbe marks of an animal, need not describe tbe original marks.</p> <p>2. Altering tbe marks and changing tbe brands of an animal are separate offenses and may not be embraced in the same count.</p>

<p>Appealed from the Circuit Court of Duval County.</p>

<p>Where the averments of a return to an alternative writ of mandamus, that are admitted by demurrer, clearly indicate that the enforcement of the rule of the Railroad Commissioners for which the writ was issued, will deprive the respondent common carrier of its right to a reasonable compensation for the service it renders as an entirety, and will deny to the respondent its property rights under the law, the demurrer to the return will be overruled.</p>

<p>1. In view of the varied and complex considerations that enter into a determination of the reasonableness of rates for transportation service by a common carrier, matters in good faith presented in pleadings as bearing upon the subject will not be stricken unless it clearly appears that they are wholly irrelevant or improper.</p> <p>2. All reasonable and just rules and regulations made by the Railroad Commissioners within the authority conferred upon them by law, should be enforced to carry out the expressed purpose of the law in the interest of the general welfare; but unreasonable regulations are not within the authority conferred by law upon the Railroad Commissioners, and when regulations appear from the pleadings or the evidence in a case to be unreasonable and violative of constitutional provisions for the protection of private property rights, such unreasonable regulations will not be enforced by the courts.</p> <p>3. The Railroad Commissioners have the power to reduce the charges for a particular class or kind of service by a railroad common carrier, provided such reduction does not in fact render the carrier unable to earn a fair profit upon its entire business, or a reasonable compensation for the service it renders as an entirety.</p> <p>.4- Where the return to an alternative writ of mandamus avers specific matters that clearly show the enforcement of a transportation rate prescribed by the Railroad Commissioners for a particular freight service will deprive the common carrier of a reasonable compensation for its service rendered as an entirety, and avers that the rate sought to be reduced is reasonable and just to the shippers, a demurrer to the return will be overruled.</p> <p>Demurrer overruled.</p>

<p>Writ of error to the Circuit Court of Escambia County.</p>

<p>1. The provision of Section 14 of Article 16 of the constitution that all state, county and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified, is not a limitation upon the power of the Governor to fill vacancies in the succeeding term of any State and county office. The purpose of the provision is to prevent a hiatus in government until the appointing power acts and the appointee qualifies, wherever there is a vacancy in the term of an office; and to accomplish this the encumbent at the expiration of a former term is authorized to hold over in the succeeding term until the qualification of a successor as provided by law.</p> <p>2. Section 6 of Article XVI contemplates that vacancies may occur in the terms of elective offices under the constitution, and provides that the term of office of all appointees to fill such vacancies, shall extend only to the election and qualification of a successor at the ensuing general election. .</p> <p>3. Section 2 of Article XVI provides that every officer of the State shall before entering upon the discharge of his official duties take the prescribed oath. The statutes require the giving of official bonds by designated State officers and also provide that no commission shall be issued by the Governor to any person who is by law required to give an official bond, until such bond has been duly executed, approved and filed.</p> <p>4. The statute provides that every office shall become vacant for neglect or refusal to qualify according to law within sixty days after election or appointment. This has reference to the term of the office for which the election was had or the appointment was made.</p> <p>5. In order to qualify as an incumbent of an office the oath prescribed by the constitution must be duly taken, and where a bond is required by law, it must be duly executed, approved and filed.</p> <p>6. If a person elected or appointed to office shall neglect or refuse to qualify within sixty days after his election or appointment, the term of the office to which he was elected or appointed is declared by the statute to “be deemed vacant.”</p> <p>7. When a term of an elective State office is vacant within the meaning of the statute, the Governor has the executive power under the constitution to fill such vacancy by appointment, but the term of office of such appointee “shall extend only to the election and qualification of a successor at tlie ensuing general election.”</p> <p>8. Where a person is elected to a State office and neglects or refuses to qualify within fc'O days after such election by talcing the oath prescribed by the constitution and by duly executing a bond if so required by law within such time, the term of such office is by the statute declared to “be deemed vacant;” and the Governor is authorized to fill such vacancy by an appointment on a commission which “shall extend only to the election and qualification of a successor at the ensuing general election.”</p>

<p>Appealed from the Circuit Court of Monroe County.</p>

<p>Insurance Law—Reformation of Policy and Enforcement Thereof as Reformed May Be Had in Same Suit—Proofs Necessary for Reformation.</p> <p>1. It is well settled that when a policy of insurance as issued does not conform to the contract which it purports to evidence, and the insured accepts the policy in the belief that it does conform to his contract, a court of equity will reform the instrument; and that after a loss has occurred the reformation of the policy and judgment for the loss may be had in the same suit.</p> <p>2. In reforming a policy of insurance, like that of any other written contract, the want of conformity to the agreement of the parties must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a ground for rescinding, but not for reforming, the contract, where the minds of the parties have not met, there is no contract, and hence none to be rectified.</p> <p>3. It is also well settled that an insurance policy as issued and accepted is prima facie the contract of the parties; and in order to have it reformed, the burden is on the plaintiff to show that a different contract was entered into from that which was reduced to writing, and this fact must be proved by clear, convincing and satisfactory evidence, not alone by a preponderance of the evidence, but he must .establish the fact by such evidenec as to show conclusively that a mistake had been made, that such mistake was mutual to both parties, and to satisfy the court of such mistake beyond a reasonable doubt.</p>

<p>1. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet in that case they should not be disturbed by an apellate court, unless they are clearly shown to be erroneous.</p> <p>2. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by Mm, based largely or solely upon questions of fact, will not be reversed, unless tbe evidence clearly shows that it was erroneous.</p> <p>3. A finding by a chancellor on conflicting evidence will not be disturbed by the appellate court, where the mind cannot repose with entire confidence and certainty on a conclusion in favor of either party.</p>

<p>1. In the General Statutes of 1903 (Florida), two different methods are provided for enforcing the collection of an appearance bond in a criminal case. Section 394S provides for a suit on the bond by the prosecuting officer, and section 3940 provides for the collection of such a bond by an estreatment proceeding. Where the former method is adopted it is not necessary to allege in the declaration that the sureties were called upon to produce the body of the principal obligor, as the gist of the action is the giving of the appearanec bond and the failure of the person charged with the criminal offense to appear as he agreed to do.</p> <p>2. Under the statute (Sec. 963 G. S. 1906) the proceeds of all forfeited bail bonds or recognizances are paid into the fine and forfeiture fund of the county in which the indictment was found or the prosecution commenced, and judgment therefor should be entered in favor of the State for the use of the particular county.</p> <p>3. Where a party is convicted of crime and gives a supersedeas bond conditioned for his appearance at the next term of the Circuit Court, in which he was convicted, to answer and abide the final order, sentence or judgment of the Supreme Court in the premises, such a bond is a bail bond within the meaning of section 903 of the General Statutes of 1906.,</p> <p>4. Where an action is brought on an alleged forfeited bail bond which is attached to the declaration as an Exhibit, but not made a part of the declaration, an alleged variance between the conditions of the bond and the allegations of the declaration are not available on demurrer to the declaration,</p> <p>.5. A supersedeas appearance bond which provides that the convicted party should be personally forthcoming at the next term of the Circuit Court held in the county where th'e conviction occurred “on the'second Tuesday in September, 1912, to answer and abide the final order, sentence or judgment that might he passed in the premises by the said Supreme Court,” and that term of the court was the term at which the convict should under the law as well as under the terms of the bond appear, is not fatally variant from the statute Sec. 4047, Gen. Stats. 1906) because it names the term of the Circuit Court at which the convicted party is to appear.</p> <p>6. Where a convicted party gives a supersedeas bond as he is allowed to do under sections 4047 and 4048 Gen. Stats, of 1906, no order of court is necessary to make the supersedeas effective, except that the party if then in custody cannot be discharged from custody without an order of court as provided in section 4049 Gen. Stats of 1906.</p>

<p>Appealed from the Circuit Court of Escambia County.</p>

<p>Where in an action at law upon certain negotiable notes which were executed by the defendant to a corporation, and by it were endorsed to the plaintiff, and the case was" finally tried by the Circuit Court upon an agreed statement of facts, which contains the following: “The defendant admits that the plaintiff, Manitowoc Shipbuilding & Dry Dock Company, a corporation, acquired said notes described in plaintiff’s declaration, in due course for value, having acquired said notes for a valuable consideration, before maturity without knowledge of what the consideration of said notes was or of any alleged failure of such considerationand where demurrers to pleas were sustained setting up that the notes were given in purchase of stock in the corporation, which endorsed them to the plaintiff, that it was represented the said notes would not be negotiated, that no stock or other consideration was given the defendant for the not.es, the rulings on the demurrers to the pleas, present no ground for reversal, as plaintiff is a holder in due course under the Negotiable Instrument law, and took the notes free from defenses which might bfe available between the original parties to the transaction/</p>

<p>I. The requirement of labor upon the public highways is not a tax in the sense in which the word is used in the State constitution.</p> <p>5* Section 8 of Chapter 6276 of the Laws of Florida, (Acts of 1911, p. 255), is not unconstitutional by reason of being vio- , lative. of Section 5 of Article IX of the State Constitution or of Section 16 of the Declaration of Rights.</p> <p>3. Section 8 of Chapter 6276 of the Laws of Florida (Acts of 1911, p. 255), does not include women and render them liable to road duty.</p>

<p>Writ of error to the Circuit Court of Liberty County.</p>

<p>Writ of error to the Circuit Court of Escambia County.</p>

<p>Writ of error to the Circuit Court of Dade County.</p>

<p>Writ of error to the Circuit Court of Jackson County.</p>

<p>1. A bill, amended by narrowing the prayer for relief, does not make an entirely new case.</p> <p>2. The concurrent findings of two Circuit Judges upon the same evidence will not be lightly disturbed.</p>

<p>Writ of error to the Circuit Court of Alachua County.</p>

<p>Criminal Law—Unlawful Sales of Intoxicating Liquors—U. S. Revenue License as Evidence—Identity from Names—Specific Grounds of Objection to Evidence Advanced in Trial Court Must Be Argued in Appellate Court, Else Assignment Based Thereon Will Be Treated as Abandoned.</p> <p>1. Where two names are presented, to the consideration of the court, the inference that they designate the same individual is strong in proportion as the difference between the two are slight, and, conversely, the inference of identity is weak as the points of difference between the two names are numerous and marked.</p> <p>2. Section One of Chapter 5688 Laws of Florida of 1907 makes the certificate of the U. S. Revenue Collector of Licenses issued to parties to conduct the business of Liquor Dealers, prima facie eidence in all the courts of this State that the person holding, owning, paying for or possession such U. S. Revenue License, is a dealer in such intoxicants, not expressly as a second offence, but simply of the fact that during the time covered by such U. S. Revenue License the holder thereof is or was a dealer in such liquors. Of course the prosecutor in the trial of a party on a charge of a second offense must show by evidence aliunde the first conviction and a dealing in or sale of intoxicants subsequently thereto that was not covered by or included within the charge upon which the first conviction was had, but this does not detract from the value of the U. S. Revenue License as prima facie evidence of the bare fact that the holder or owner thereof was, during the whole time covered by such license, a dealer in intoxicants, whether under it he made one sale, or from day to day and from month to month made continuous and repeated sales thereunder, after having been convicted for the offense of making the first, second or third sale thereunder.</p> <p>3. It is the settled rule here that a plaintiff in error or appellant is confined in argument to the specific grounds of objection stated in the trial court and there ruled upon. If he fails to argue these grounds the assignment will be treated as abandoned.</p>

<p>Appealed from the Circuit Court of Hillsborough County.</p>

<p>1. Testimony from a party that he kept a set of books, which had been destroyed, is not admissible as primary evidence to prove an account against a decedent.</p> <p>2. A general denial of indebtedness by an administrator does not render competent evidence by the other party of a secret transaction with the intestate.</p>

<p>1. In a prosecution for withholding means of support from a wife and child testimony that the defendant’s partner refused to let the wife have anything from their store is not hearsay and is relevant to the issue being tried.</p> <p>2. The merits of a suit for alimony are not material in a criminal prosecution for withholding the means of support from a wife and child.</p> <p>3. Objections to specific testimony and exceptions to rulings thereon should be duly presented in the bill of exceptions if a review of the rulings is desired.</p> <p>4. Where no fundamental rights have been violated, and the evidence of guilt is amply sufficient, technical errors in rulings on the admission of testimony or in giving or refusing charges will not cause a reversal.</p>

<p>Writ of error to the Circuit Court of Escambia County.</p>

<p>A right to redeem lands from a mortgage may be lost by laches and acquiescence of the plaintiff and adverse possession by the defendant.</p>

<p>1. In contracts for the sale of land time of performance may be made an essential feature of the contract.</p> <p>2. In a contract for the sale of land where part of the purchase money was paid when the contract was made and where the contract contains a provision that time shall be an essential feature of the contract, but also contains a provision that the contract may be forfeited at the option of the vendor when the terms of payment are not observed in the time agreed on, in such a case the vendor must give reasonable notice to the vendee that he will insist on payment as provided in the contract and if he fails to do so before the date for payment he must fix a future time and give reasonable notice to the vendee in order that he may have an opportunity to comply. In this way alone can the vendor in such a contract make time an essential part of the contract.</p> <p>3. Where a husband and wife join in the execution of a contract for the sale of land, and where the wife personally appears before an officer authorized to take an acknowledgment of the execution of the contract and the officer certifies that the wife upon an examination by him separate and apart from her husband acknowledged that she executed the agreement freely and voluntarily and without any constraint, compulsion, apprehension or fear of or from her said husband, such an acknowledgment embraces whatever interest the wife ■may have in the lands.</p>

<p>1. If the matter contained in an answer in an equity cause is relevant or can have any influence in the decision of the subject-matter of the controversy, it is not impertinent.</p> <p>2. Under the statute a mortgagee takes merely a lien. A foreclosure decree enforces the mortgagee’s lien and operates through a master’s deed to transfer the mortgagor’s title to the purchaser at the foreclosure sale.</p> <p>ó. A bona fide purchaser for value at the foreclosure sale is not a mere assignee of the mortgage lien, but takes title if the foreclosure proceedings and the conveyance thereunder are effective to pass the mortgagor’s title.</p> <p>4. If foreclosure proceedings or the conveyance thereunder'are ineffectual to convey the title of the mortgagor, the attempted conveyance may be a sufficient color of title under which possession in the manner and for the period required by- the statute may ripen into title by adverse possession, against the ' heirs of the mortgagor who are affected by the adverse pos- ■ session statute.</p> <p>5. A stranger who bona fide purchases at a foreclosure sale and takes possession under a master’s deed purporting by authority to convey the land has title or color of title; and his status is not that of a mortgagee in possession without title holding merely a contract lien.</p>

<p>Writ of error to the Criminal Court of Record of Walton County.</p>

<p>Writ of error to the Circuit Court of Lake County.</p>

<p>1. Where actionable noglisrence is alleged in a count, subsequent allegations therein of negligent acts not stated to have caused the injury complained of, may be treated as surplusage when they do not render the essential allegations of the count repugnant.</p> <p>2. Where there is substantial evidence that the plaintiff was injured by the negligent movement of a railroad company’s train, such evidence may warrant a finding of liability against the company under the statute.</p> <p>* An attorney called as a witness may sua sponte present to ■ the court a question of privileged communication, when not otherwise waived by the client.</p> <p>1. The fact that a client upon cross examination testified without objection that he had not made a certain statement to his attorney, does not waive the privilege.</p> <p>Ó. Where the earning capacity of a plaintiff is in issue, evidence tending to show him to be of indifferent earning capacity is admissible.</p>