Volume 66 — Florida Reports

<p>Appealed from the Circuit Court of Escambia County; J. Emmet Wolfe, Judge.</p>

<p>Writ of Error to Circuit Court ofvMadison County; Mallory F. Horne, Judge.</p>

<p>1. A resulting trust in real estate may be proved by parol, but tire evidence to establish it must be so clear, strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust.</p> <p>2. If -a complainant in a suit in equity desires to avoid the probative force of a sworn answer, he may do so by expressly • waiving tlie oath in his bill. Where the complainant fails to do this, an answer under oath, in so far as it is responsive to the allegations of the bill and direct, positive and unequivocal in its terms, is evidence in favor of the defendant, in order to overcome which two witnesses are required, or one witness and corroborating circumstances.</p> <p>3. In a suit to have a constructive trust decreed, proof that is not full, clear and convincing, nor so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the alleged constructive trust, is insufficient to establish the trust.</p>

<p>Appealed from Circuit Court of Manatee County; F. A. Whitney, Judge.</p>

<p>Appealed from Circuit Court, Dade County; L. W. Bethel, Judge.</p>

<p>Writ of Error to Circuit Court of Orange County; J. W. Perkins, Judge.</p>

<p>Appealed from Circuit Court, Hillborough County; F. M. Robles, Judge.</p>

<p>1. An order denying a motion to strike a cross-kill in an equity cause is appealable.</p> <p>2. Striking a pleading is a severe remedy and should be resorted to only in cases palpably requiring it for the proper administration of justice.</p> <p>3. A pleading in proper form, duly authenticated and filed, should not be stricken for insufficiency, but its sufficiency should be tested by demurrer or other appropriate proceeding.</p> <p>4. A pleading may be stricken if it is wholly irrelevant to the cause, or if it violates a rule or order of court, or if it be a palpable attempt to impose upon or trifle with the court, as by merely repeating or reiterating to no better effect the same matter which has already been presented and adjudged</p> <p>5. Where a cross-bill is filed consisting of matters of defense that have been adjudicated as being irrelevant as a defense in an answer, such, cross-bill should be eliminated; and under particular circumstances striking it is not a harsh or inappropriate remedy.</p>

<p>1. Prohibition lies to restrain an excess of jurisdiction as well as to prevent a court from proceeding in a case where it has no jurisdiction whatever.</p> <p>2. Where an application for prohibition is too broad the court may mould the writ and limit it to so much as is proper to be granted. *</p> <p>3. Where the appellate court has decided on appeal in a cause that certain proceedings in a bankruptcy court cannot be collaterally assailed in an answer to a bill in equity in the State Court, the same matters cannot properly be again interposed in the same cause by a cross bill in the trial court; and if such a cross bill is entertained, a writ of prohibition may issue to restrain such action.</p>

<p>I. In an action for a tortious injury to private rights claimed in oyster beds in the navigable waters of the State, the declaration should state that the asserted private rights do not cover any of the “existing natural or maternal oyster beds in the waters of this State.”</p> <p>2. A joint tort is essential to the maintenance of a joint action for damages therefor against several parties. For separate and distinct wrongs in nowise connected by the ligament of a common purpose, actual or implied by law, the wrongdoers are liable only in separate actions, and not jointly in the same action.</p> <p>3. Torts that are several, separate and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences, where no concert of tortious action or consequences is intended by the parties or implied by law.</p> <p>4. Where a declaration alleges that “the defendants, and each of them, in the conduct of their respective businesses along or near the shore of” a navigable river, “wrongfully and injuriously from day to day caused great quantities of mud and other refuse to he deposited and flow into said river above the point where” plaintiff’s property was situated, and by reason thereof the plaintiff’s property has been injured as specifically stated, such allegations do not show a joint tort by the defendants.</p>

<p>Writ of Error to the Circuit Court of Dade County; L. W. Bethel, Judge.</p>

<p>Appealed from the Circuit Court of Duval County; R. M. Call, Judge.</p>

<p>In a suit to enforce the specific performance of a contract to sell a stock of merchandise and a mercantile business in exchange for an orange grove, where the allegations aud prayers clearly indicate that the remedy at law is not adequate, a general demurrer to the bill of complaint is properly overruled.</p>

<p>Writ of Error to Circuit Court of Pinellas County; F. M. Robles, Judge.</p>

<p>Writ of error to the Circuit Court of Dade County; L. W. Bethel, Judge.</p>

<p>Certiorari to Circuit Court of Gadsden County; J. Emmet Wolfe, Judge.</p>

<p>Writ of error to Circuit Court of Duval County; Geo. Couper Gibbs, Judge.</p>

<p>1. All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of tbe case, and are no longer open for discussion or consideration.</p> <p>2. When a demurrer to pleas is held bad on appeal, the matter is res adjudieata, and the trial court is bound thereby. The statute requiring courts to permit amendments to pleadings does not contemplate amendments to the grounds of a demurrer to pleas, where the- pleas have been held to be good on the demurrer on appeal, and the question is res adjudieata.</p> <p>3. Every pleading is to be most strictly construed against the pleader thereof. It is tbe first essential of good pleading that it be characterized by certainty, and this quality is especially requisite in a replication.</p>

<p>f.” Upon a trial for shooting with intent to murder, evidence that eye-witnesses, immediately after the shooting, replj-ing to questions of tlie actor, stated that it was not accidental but intentional, is not error, when these witnesses testify to the facts upon the stand.</p> <p>2. A witness may identify the time or sequence of an event by reference to an occurrence, in the nature of a remark, that may have effected the event.</p> <p>3. Upon a plea of accidental shooting, recent threats by the defendant are admissible.</p> <p>4. While "an intent to kill” is an essential element of the crime of assault with intent to commit murder in the second degree, the facts of the case may give the “intentional shooting” of a human being, the same meaning.</p>

<p>1. In an action at law the judgment should adjudicate the issues made by the pleadings.</p> <p>2. Where there is an issue as to whether a person is a member of a partnership and liable as such, a judgment merely awarding damages against the partnership name, the members thereof not being mentioned, may be reversed on a writ of error prosecuted by the party whose liability as a partner was at issue and undetermined in the cause.</p>

<p>Appealed from Circuit Court of Escambia County; J. Emmet Wolfe, Judge.</p>

<p>In a prosecution for the statutory offense of drawing a draft without having sufficient funds to meet it, or reason to believe the draft will be paid, it is error >to admit, • over- appropriate ob- ,.. jections,. testimony as. to .the non-payment of drafts subsequently drawn by the defendant payable to others besides the complaining witness; and such error will cause a reversal of a judgment of conviction where there is only, slight affirmative evidence that the defendant did not have reason to believe the draft in controversy would be paid.</p>

<p>1. The return to a rule to show cause why a bail bond should not be estreated, is not subject to the strict construction applied to pleas in abatement.</p> <p>2. That the committing magistrate, who filed the bail bond, subsequently, upon the authority of a statute, changed the order and committed the intant defendant to the custody of a Probation Officer and notified the bail thereof, constitutes prima facie a sufficient excuse to- the bail for failure to produce the body on the day, irrespective of the constitutionality of the statute.</p>

<p>Writ of error to Circuit Court of Hillsborough County; F. M. Robles, Judge.</p>

<p>1. Where the_ transactions between parties constitute interstate commerce and are consequently not subject to burdensome State regulations, a note given as a result of such transactions is likewise not subject to burdensome State regulations.</p> <p>2. Where a State cannot under thes law directly discriminate against or burden interstate commerce, it cannot do so by indirection.</p> <p>3. A State cannot legally burden or destroy the ultimate rights of parties growing out of their interstate commerce dealings, at least until those rights cease to have any direct relation to the interstate transactions out of which they arose.</p> <p>4. A State may not in any form or under any guise, directly burden interstate commerce or' the rights proximately flowing therefrom.</p> <p>5. Rights growing out of interstate commerce can not lawfully be rendered ineffectual by State action under the guise of a public regulation.</p> <p>6. Where it is alleged and admitted by demurrer that the plaintiff is a foreign corporation engaged solely in interstate traffic, and does not maintain an office or place of business in the State, and that the contract upon which is predicated the note sued on involves articles prepared out of the State and shipped into the State to customers, such transactions are interstate commerce, and not subject to the provisions of Chapter 5717, Acts of 1907, requiring foreign corporations to file specified statements and to iiay designated fees before such foreign corporation can transact any business in the State, and making void contracts made without complying with the statute.</p> <p>7. Chapter 5717, Acts of 1907, is designed, as a regulation of intrastate transactions by foreign corporations, and is not intended to apply to interstate transactions or to regulate or to burden interstate commerce, or to operate in conflict with valid Federal regulations.</p>

<p>1. All tbe points adjudicated by an-appellate court upon a writ 'of error or an appeal become tbe law of tbe case, and are no longer open for discussion or consideration, but this principle has no applicability to and is .not decisive of points presented upon a second writ of error- that were not presented upon the former writ of error and consequently were not before the appellate court for adjudication.</p> <p>2. In construing any written instrument, whether a deed of conveyance, a bill of sale, mortgage, contract or what not, the entire instrument must be considered in order to gather the real intent and to determine the true design of the makers thereof. To that end, all the different provisions of such in strument must be looked to and all construed so as to give effect to each and every of them, if that can reasonably be done. If clauses therein seem to be repugnant to each other, they must be given such an interpretation and construction as to reconcile them if possible, remembering that the intent is the principal thing to be regarded. If one interpretation, looking to the other provisions of the instrument and its general scope, would lead to an absurd conclusion, such interpretation must be abandoned and one adopted which will he more in accord with reason and probability.</p> <p>3. When parties deliberately put their engagements in writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of the engagement, it is, as between them, conclusively presumed that the whole engagement and the extent and manner of the undertaking is contained in the writing. No other language is admissible to show what they meant or intended, and for the simple reason that each of them has made that to be found in the instrument the agreed test of his meaning and intention.</p> <p>4. The first point in construing a contract is to ascertain what was the meaning and understanding of the parties, as shown by the language used, applied to the subject matter.</p> <p>5. When words or terms having a definite legal meaning and effect are knowingly used in a written instrument, the parties thereto will be presumed to have intended such words or terms to have their proper legal meaning and effect, at least in the absence of any contrary intention appearing in the instrument.</p> <p>fi. There must be a meeting of two minds in one and the same intention in order that there may be a contract.</p> <p>7. Where a lease contains the following stipulation: “it being expressly understood between the parties hereto that this lease is’made for the sole purpose of granting to the lessee the rights and privileges of exploring for mining, taking out and shipping therefrom the merchantable phosphate rock, as well as all other minerals of whatsoever kind or nature as hereinafter provided for, which is or may hereafter be found on, in or under the said land, with the right in the lessee to construct all buildings, and to make all excavations, openings, ditches, and drains and construct all railroads, wagon-roads and all other improvements which are or may become necessary or suitable for the purpose of mining or removing therefrom phosphate or other mineral of whatever nature or kind found thereon and of the carrying on of mining operations thereon,” it is obvious that the mutual intention of the parties executing the lease was to give to the lessee the mining rights set forth therein.</p> <p>S. When the main purpose of the parties in executing a lease was to give to the lessee the right to mine the phosphate rock upon the lands described therein, even though there is no express covenant on the part of the lessors that there was phosphate rock on the leased premises, in the absence of any showing in the lease to the contrary, it must be held that the parties to the lease assumed that sufficient phosphate rock was in or on the land to enable the lessee to comply with terms of the contract, and that but for this mutual assumption -the contract would not have been made.</p> <p>i). Where a lease is executed for the purpose of giving to the lessee the right to mine the phosphate rock on the land described therein and the lessee agrees therein to pay ‘‘royalty on all phosphate rock mined and shipped from said lands under this lease, while the same shall remain in force at the rate of fifty (50c) for each gross ton,” a further covenant therein to the effect that the lessee shall pay advance royalties or ground rent up to a certain named amount, whether sufficient rock is mined or not to yield such amount at the royalty per ton named, is not an independent ' covenant, but must be held to be dependent upon the covenant to pay royalty upon the phosphate rock mined. In an action ■ upon such contract by the lessors pleas setting up in substance the non-existence of-any minable rock in or upon the land constitute a good defense to the action and it is error to sustain a demurrer to the pleas.</p>

<p>1. While courts of law have jurisdiction to enforce contract demands that involve an accounting, yet courts of equity also take cognizance of cases in which contract demands between litigants involve extensive mutual or complicated accounts where it is not clear from the facts alleged in the particular case that the remedy at law is as full, adequate and expeditious as it is in equity.</p> <p>2. The terms of a statute should not by construction be extended beyond the fair import of the language used considered in view of the object sought to be attained.</p> <p>3. The provision of Chapter 5969, Acts of 1909, that “no contract shall be let by the board of county commissioners for........ the erecting or building of any house, .............. unless notice thereof shall be advertised” &c., is restrictive and does not fairly extend to contracts for alterations and additions made in the plans and specifications of a contract duly made in good faith for the erection or building of any house, when the general plan of the building is not changed pending construction and there is no attempt to evade the statute in making the original contract and in the subsequent alterations and additions to the building.</p>

<p>Writ of error to Circuit Court of Marion County; W. S. Bullock, Judge.</p>

<p>Writ of error to Circuit Court of Washington County; D. J. Jones, Judge.</p>

<p>1. A correct ruling of the trial court will not be disturbed because of erroneous or wrong reasons which may have been given therefor, as it is with the ruling itself, and not with the reasons given therefor, with which an appellate court is concerned.</p> <p>2. In passing upon a demurrer which is addressed to the entire bill, only such grounds of the demurrer as are applicable to the whole bill are properly before the court for consideration.</p> <p>3. A demurrer which is addressed to the entire bill must be treated as a general demurrer, and should be overruled if there is any equity in the allegations of the bill, even though there are grounds of the demurrer which might prevail if the same were incorporated in a special demurrer, which was directed to the vulnerable parts of the bill.</p> <p>4. The common law is in force in this State, except where it is modified by competent governmental authority. No statute of this State expressly or by fair implication renders invalid or void marriage contracts between competent parties that are consummated under the rules of the common law.</p> <p>5. Matters clehors the bill cannot be raised by way of demurrer but must be raised by yray of plea or answer.</p> <p>6. In passing upon a demurrer to the whole bill in a suit in equity, while every presumption is against the bill, such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true, and a demurrer to the whole bill should be overruled if the bill makes any case for equitable relief.</p> <p>7. Where a bill in chancery is filed for alimony and a prima facie showing is made therein of the marital relations between the complainant and the defendant, it is proper to refer the cause to a master to take testimony as to the necessities of the complainant and the faculties of the defendant.</p>

<p>The fact that others saw or heard a street car approaching does not render the act of one who failed to get off the track in time to avoid being killed by it, the sole cause of the accident, when it appears that the car was being operated at full speed on a dark night, with no headlight, by a motorman with his face to the rear, who rang no gong when nearing a street crossing at a point where owing to the physical condition of the street many citizens were accustomed to walk between or along the car tracks.</p>

<p>1. Where the face of a bill in chancery shows a case barred by the statute of limitations, and no circumstances are stated which take the case out of the operation of the statute, the defendant may take advantage of it by demurrer.</p> <p>2. Where suit to reform and enforce a fire insurance policy is not commenced within five' years from the accrual of the right of action, or within one year after a judgment at law for the plaintiff on the policy has been reversed on appeal or writ of error, the suit is barred by the statute of limitations; and as equity follows the law a failure to bring the suit within the statutory period is under the circumstances laches.</p>

<p>Where there is adequate remedy at law an alleged illegal levy of executions will not be enjoined, no ground for equitable relief being stated.</p>

<p>Writ of error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.</p>

<p>1. Tlie title of one who has a valid tax deed is not affected by the fact that he made no claim to own the land, though in possession, prior to the acquisition of the' deed.</p> <p>2. The fact that the trial judge admitted in evidence a tax deed, prima facie regular in substance and form as color of title, cannot in law do away with the legitimate effect of such a deed as evidence of title.</p>

<p>While the judicial act of directing a verdict is a delicate one and should be cautiously exercised, yet where there is positive evidence that a plaintiff is a hona fide holder for value in due course of unpaid negotiable notes, and there is no substantial evidence to the contrary, and no valid defenses are shown, the court will not be held in error for directing a verdict for the plaintiff.</p>

<p>Appealed from Circuit Court, Calhoun County; W. H. Price, Judge.</p>

<p>Under a declaration alleging that the defendant wilfully entered upon plaintiff’s lands, cut down and removed timber therefrom, and made lumber thereof which he converted to his own use, the plaintiff may recover the value of the timber.</p>

<p>1. The action of the trial judge granting a new trial is affrmed upon the principles 'set forth in Farrell v. Solary, 43 Fla. 124, 31 South. Rep. 283; Allen v. Lewis, 43 Fla. 301, 31 South. Rep. 286; Clary v. Isom, 55 Fla. 384', 45 South. Rep. 994; Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 South. Rep. 1, and other decisions of this court.</p> <p>2. Where a writ of error is taken to review the action of a trial court in granting a new trial, this court is confined to the consideration of the propriety of the action of the court granting a new trial.</p>

<p>Writ of error to Circuit Court, Calhoun County; C. L. Wilson, Judge Ad. Litem.</p>

<p>Mandamus does not lie to compel a Clerk to enter a default in the absence of a showing that the relator was entitled to a default when the praecipe therefor was filed.</p>

<p>Appealed from Circuit Court, Hillsborough County; F. M. Robles, Judge.</p>

<p>An information charging the offense of feloniously and burglariously breaking and entering a building with intent to commit a misdemeanor, to-wit, petit larceny, containing no allegations of ownership is fatally defective, and a motion in arrest of judgment thereon should be granted.</p>

<p>When the value of the property embezzled determines whether the crime is a felony or a misdemeanor, the verdict should respond to that issue.</p>

<p>' 1. The filing of a praecipe for summons ad respondendum is not ■ jurisdictional. It serves the two fold purposes of marking the time when the action begins and of guiding the clerk in preparing the summons.</p> <p>2. On a collateral attack, a judgment against A. will not be held void for defective service, the sheriff’s return upon the summons showing that he delivered “a true copy thereof to A. and B., the within named defendants.”</p>

<p>Writ of error to Circuit Court, Jackson County; D. J. Jones, Judge.</p>

<p>Writ of error to Criminal Court of Record, Volusia County; Bert Fish, Judge.</p>

<p>In a prosecution for murder,,it is erroneous to instruct the jury to the effect that, in order to render homicide justifiable, the evidence must show that, at the time the same was committed, “then and there appeared to the defendant imminent danger of such design (to kill the defendant or do other harm or violence) being accomplished by the deceased by actually shooting at the defendant with a pistol, or by the act of drawing such weapon when the defendant was not at the time the aggressor.” This places a burden upon the defendant which the law does not contemplate. The deceased would not have had actually to either shoot or draw the pistol in order to make it appear to the defendant that he was in imminent danger of the loss of life or great bodily harm or violence from the deceased. An attempt upon the part of the deceased to draw his pistol or a demonstration to that effect might well have produced the apprehension in the mind of the defendant which the law contemplates.</p>

<p>1. It is essential to a conviction for receiving stolen property that the receiver shall have knowledge that the property was stolen at the time of its reception, or of such circumstances as would put a man of ordinary intelligence and caution on inquiry.</p> <p>2. Where a particular fact is an essential element in the commission of a crime, and in a prosecution for such a crime there is no .evidence showing the essential fact, and no evidence from which the existence of such essential fact may fairly be inferred, a verdict of guilty of the crime of which such non-proven fact is an essential part, may be set aside by an appellate court.</p> <p>3. In a prosecution for receiving stolen goods knowing them to have been stolen, where there is nothing in the evidence tending to show the defendant knew the goods were stolen, and no evidence that reasonably should have put him ujoon inquiry, a verdict of guilty is unauthorized by law.</p>

<p>1. While the legal effect of evidence or the lack of evidence in its relation to a verdict rendered in a trial, may by appropriate proceedings be reviewed by an appellate court; ■ yet conflicts, in competent testimony, the weight of legal evidence and the credibility of competent witnesses are primarily for the determination of the jury; and where there is some substantial competent evidence of all the facts legally essential to support the verdict, and'there is nothing in the record to indicate that the jury were not governed’by the evidence, a refusal of the trial court to grant a new trial on the ground of the insufficiency of the evidence, to sustain the verdict will not be disturbed by the appellate court.</p> <p>2. Where there is substantial evidence that the accused assaulted another with a knife and cut him in a number of places on his person under such circumstances that if death had resulted therefrom, it’ would have constituted murder at least in the second degree, a verdict of assault with intent to commit murder in the second degree will not be- disturbed, no .errors- of law or procedure being shown.</p>

<p>Writ of error to Circuit Court, St. Lucie County; J. W. Perkins, Judge.</p>

<p>Writ of error to Circuit Court, Polk County; F. A. Whitney, Judge.</p>

<p>A bill of particulars is not a part of the declaration; and the allowance or refusal of a detailed bill of particulars rests in the discretion of the trial court and will not be reversed in the absence of a showing of abuse of discretion.</p>

<p>' In a suit to enjoin and to recover for an infringement of a trade„ mark, where the infringement is sufficiently alleged and is admitted by a decree pro confesso, a decree against two particular persons, who participated in the infringement, enjoining 'further infringement and awarding as damages ' the amount of the profits shown to have been made by the infringement, will not be reversed, no material error of law or procedure being made to appear.</p>

<p>Where the only point presented to an appellate court for determination is as to the sufficiency of the evidence to support the verdict, and such court finds that there is ample testimony for that purpose and there is nothing whatever to show that the. jurors were not governed by the evidence in arriving at their verdict the judgment must be affirmed.</p>

<p>Appealed from Circuit Court, Duval County; R. M. Call, Judge</p>

<p>An information charging that a man and woman “did then and there live and continue to cohabit with one another as husband and wife, and he, the said T., did then and there have a lawful wife living,” is fatally defective in that, for aught that appears to the contrary the woman named therein was the lawful wife of T. The mation to quash the information should have been granted.</p>

<p>1. At common law the tenant and occupier of premises is bound, as between himself and the public, to keep the premises in such condition that they will be reasonably safe for persons who go lawfully upon the premises, by express or implied invitation ; and such tenant or occupier is prima facie liable for damages caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by the tenant or occupier. This is the law even though the lessor covenanted to keep the premises in repair.</p> <p>2. The liability of the lessee in damages for injuries to others caused by unsafe premises is grounded upon his duty in being the occupant to keep the premises in reasonably safe condition for those who go thereon by express or implied invitation.</p> <p>• 3. The common law rule of liability of lessees who have control or occupancy of premises, for injuries caused by the defective or dangerous condition of the premises where such defective or dangerous condition reasonably snould have been known to and remedied by the occupying tenant, is in force in this State.</p> <p>4. A verdict for the defendant should never be directed by the court, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. If there is evidence tending to prove the issue, and sufficient to show liability, it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon by the court as matter of law.</p> <p>5. The damages recoverable in actions for personal injuries are fcir all the legal and natural consequences proximately resulting from the negligence alleged; though the particular form or nature of the results were not contemplated or foreseen.</p> <p>6. Assumption of risk and contributory negligence when available are affirmative defenses</p>

<p>1. A defendant having incorporated in one pleading an answer and a cross-bill, the cause set down upon bill and answer, and a decree rendered thereon for the complainant, the cross-bill being ignored, the court may refuse to strike a Us pendens thereafter filed upon the cross-bill.</p> <p>. 2. When the original complainant asks affirmative relief upon the erroneous conception 'that the cross-bill is not properly before the court, such action on his part may be treated as an appearance.</p>

<p>Appealed from Circuit Court, Marion County; W. S. Bullock, Judge.</p>

<p>1. Where it is sought to annul a marriage contract on the ground of duress, it must be shown by clear, satisfactory and convincing evidence that the duress dominated throughout the transaction so as to disable the one influenced from acting as a free agent at the time of the marriage.</p> <p>2. In a suit to annul a marriage contract for duress by threats, where the evidence shows the marriage contract was entered ■ into by appointment in the absence of any threats, and of any one disposed to make or to execute threats, a decree dismissing the complaint will be affirmed.</p>

<p>Appealed from Circuit Court, Hillsborough County; F. M. Robles, Judge.</p>

<p>Writ of error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.</p>

<p>1. An application for a continuance of a cause is addressed to tlie sound discretion of the trial court, and all facts necessary to show an abuse of discretion to the injury of a defendant must he presented, the presumption being in favor of the correctness of the ruling.</p> <p>2. An affidavit for a continuance of a criminal case should be scannefi with more care than in a civil case; and a continuance applied for on the ground of the absence of a witness should allege that the witness was absent without the consent of the defendant either directly or indirectly given.</p> <p>3. There is no rule of law or procedure that where an indictment is found at one term, the trial cannot properly be had at that term. Whether a continuance should be had depends on the facts and circumstances of the case.</p>

<p>1. The courts will not by mandamus require a newly formed county to pay to the parent county its proportionate part of the indebtedness, irrespective of its maturity.</p> <p>2. In a proceeding to compel a newly formed county to assume its share of the joint indebtedness, the amount of the indebtedness should be alleged directly, and not by way of representation.</p> <p>3. After the division' of a county, the parent county cannot adjudicate the indebtedness, of the original county, so as to prevent inquiry thereinto by the newly formed county.</p> <p>4. The complications in the adjustment of the indebtedness by a newly formed county and the assumption of liability therefor, suggest a resort to a court of equity as the more convenient forum.</p>

<p>1. Where courts act under special statutory authority in particular proceedings not known to the common law, the statutory provisions must be substantially followed in all material proceedings, otherwise the action taken is not authorized and is ineffectual.</p> <p>2. An interpretation of the language of a statute that leads to absurd consequences should not be adopted when, considered as a whole, the statute is fairly subject to another construction that will aid in accomplishing the manifest intent and the purposes designed.</p> <p>3. The provision of Chapter 6237, Acts of 1911, in providing a-special statutory proceeding for the validation of county and municipal bonds that “prior to the hearing of said cause, the Clerk of the Circuit Court of the County in which it is to be heard shall also publish in a newspaper, at least twice before the hearing, a notice to the public that on the day specified the order providing for the hearing of said cause the same will be heard and designate the place of hearing,” is by the context and purpose of the law shown to mean that the publication of the required notice to the public shall be made in the county where the bonds are to be issued.</p> <p>4. Where an adjudication validating municipal bonds in a special statutory proceeding, unknown to the common law, is not had upon the notice required by the statute, such adjudication may be ineffectual, and if so, may be disregarded in an equity suit to enjoin the issue of the bonds.</p> <p>5. A statutory requirement that notice of a special election to authorize the issue of municipal bonds shall be published “once a week for a period of thirty days” is not complied with where the first publication is on March 26tb, and the last publication is on April 16th, following; and such a publication is a valid ground for enjoining the issue of the bonds, where the statutes makes the publication of the notice “once a week for a period of thirty days” a prerequisite to the issue of the bonds.</p>

<p>Writ of error to Circuit Court., Orange County; J. W. Perkins, Judge.</p>

<p>Writ of error to Circuit Court, Pinellas County; P. M. Robles, Judge.</p>

<p>in an action solely' between endorser and his immediate endorsee of a negotiable instrument, a want or failure of consideration may constitute a good defense.</p>

<p>Writ of error to Circuit Court, Duval County; R. M. Call, Judge.</p>

<p>. 1. Where in an action at law to recover for services as a saw filer, the defendant pleaded that plaintiff was employed by the defendant upon his representation that he was a skillful saw filer; that he was immediately placed in full charge of defendant’s saw-filing department and entrusted with the filing of four band saws of the value of ninety dollars each; that plaintiff was not a skillful saw filer, and through want of skill, and through carelessness, he so filed said saws that they were wholly ruined and worthless to the defendant, and that through the fault of plaintiff, defendant lost the value of said saws, to-wit, the sum of $360.00, and defendant is willing to set-off, and offers to set-off so much of said amount as equals plaintiff’s claim — such plea is one of recoupment rather than set-off.</p> <p>2. In recoupment the damages claimed by defendant must flow from the same contract as that relied on by the plaintiff, or must grow out of the same transaction as that on which plaintiff’s cause of action is founded, and the defandant may recoup only to the extent of plaintiff’s claim; but in set-off he may recover any excess in his favor.</p>

<p>Writ of error to Circuit Court, Suwannee County; Mallory F. Horne, Judge.</p>

<p>1. Under the title of an Act to. “regulate” the sale of intoxicating liquors, the legislature may prohibit its sale to certain classes of citizens needing special protection.</p> <p>2. In counties where the sale of intoxicating liquors is permitted under Art. XIX of the Constitution, the legislature is still free to regulate the sale, so long as it stops short of actual or practical prohibition.</p> <p>3. A dealer in intoxicating liquors has no constitutional right to privacy in the sale, nor to the privilege of rendering his place of business attractive for the loiterer, by the use of chairs and tables, nor has he such right to sell to females.</p> <p>4. Special restrictions against the sale of intoxicating liquors are not necessarily void as class legislation, because hotels having one hundred rooms or more are exempted therefrom, if the restrictions be confined to the classes of persons to whom the sale is forbidden, and to the furnishing of and approaches to the room in which the sale takes place.</p>

<p>1. A conditional vendee, who voluntarily rescinds a contract of sale, by delivering baclr possession of all the land to the conditional vender, upon failure to pay an installment when due, has no equity as against such vendor for an installment paid and contractually treated as rent, Ms possession being in nowise disturbed.</p> <p>2. A prayer for relief not based upon allegations in the statement of the bill, creates no equity.</p>

<p>A person Jiaving title to the soil under a portion of Lake Marion in Polk County, Florida, does not have a right to fish in the waters of the lake even over the portion of the land thereunder to which he has title and with the consent of adjacent owners, where such. fishing violates a statute designed to protect the fish for the benefit of the people of the State who have an interest in the preservation of the fish in the lake.</p>

<p>Writ of error to Circuit Court, Seminole County; J. W. Perkins, Judge.</p>

<p>On Petition For Rehearing.</p> <p>Where a new county is formed wholly from a portion of a county in which-the sale of liquors is forbidden by the local option law, the law continues in force to forbid the sale of liquors in the'new county until a local election is held therein; and an affidavit of complaint charging an illegal sale in the new ^county, and stating that the parent county had “heretofore voted against the sale of said liquors,” is not fatally defective because it does not allege that the prohibition law is in force in the new county where it appears from the statute forming the new county that the holding of an election therein under the local option law before the date of the alleged illegal sale, is a legal impossibility. '</p>

<p>A writ of error taken in mandamus proceedings to compel the issuance of a license to sell liquors, wines and beers, will be dismissed when the time during which the license is operative, has expired before the cause on writ of error is reached for final disposition.</p>

<p>Confessions — Intoxication Less Than Mania Does Not Exclude.</p> <p>Intoxication, less than mania, does not exclude a confession made during its continuance, but is a fact for the jury tending to discredit such confession.</p>

<p>This is a case of original jurisdiction in Habeas Corpus.</p>

<p>Appellate Practice — Including In One Assignment of Error Refusals to Give Several Requested Instructions — Charges of The Court to The Jury Must Be Predicated On The Facts In Proof.</p> <p>1. Where two or more refusals to give separate instructions requested, are grouped together en masse in a single assignment of reror, the appellate court will go no further in the consideration of such an assignment after finding that anyone of such instructions was properly refused, but must then adjudge such assignment to have failed.</p> <p>2. Charges to the jury must be predicated on facts in proof and must be applicable to such facts.</p>

<p>1. Signing as witness a bill of sale of personal property by tbe wife and subsequent recognition of tbe contract of sale is a sufficient joinder therein by the husband.</p> <p>2. When one joint tenant of a newspaper plant, a married woman, excludes the other tenant from its use and enjoyment, and wastes its assets, she cannot complain that the court declines to appoint a receiver if she will give bond to preserve the property and pay what might be due.</p>

<p>Writ of error to Circuit Court of DeSo'to County; J. T. Wills, Judge.</p>

<p>Appealed from Circuit Court of Marion County; W. S. Bullock, Judge.</p>

<p>Writ of error to Court of Record of Escambia County; Kirk Monroe, Judge.</p>

<p>Writ of error lo Circuit Court of -Hillsborough. County; F. M. Robles, Judge.</p>

<p>Criminal Law — Ante Mortem Statements — When Admissible — Predicate Must Be Laid for Impeachment of Witness By Proof of Contradictory Statements — Oral Rehearsal of Defendants Evidence at Coroners Inquest.</p> <p>1. To render dying declarations admissible, the trial judge must be fully satisfied that the deceased declarant, at the time of their utterance, believed that his death was imminent and inevitable, and that he entertained no hope of recovery. This absence of all hope of recovery, and appreciation by the deceased of his speedy and inevitable death, is a preliminary foundation that must always be laid to make such declaration admissible. It is a mixed question of law and fact for the presiding Judge to decide before permitting the introduction of the declaration itself. It is not necessary that such preliminary foundation should be proven by express utterances of the deceased, but it may be gathered from any circumstance or from all the circumstances of the case.</p> <p>2. Before testimony is admissible to impeach a witness by showing that he had made statements on another occasion that were contradictory of his present testimony a proper predicate must be laid for such impeaching testimony by calling the attention of the witness to be impeached to the alleged contradictory statements, and to the occasion when it is alleged they were made, and by affording him an opportunity to explain, confess or deny such supposed contradictory statements.</p> <p>3. While Section 4094 of the General Statutes of 1906 requires that testimony of witnesses at a coroner’s inauest must be' reduced to writing, and though the coroner disregards this statute and fails to take down In writing the testimony of the witness at sucli inquest, yet this does not forbid the coroner or anyone else who heard the testimony at said inquest and clearly remembers it from afterwards testifying orally as to what said testimony was in any cause to which it was pertinent and relevant.</p>

<p>Municipal Law — Ordinance Prohibiting Sale of Intoxicants 'In City Limits Is Not Void Because It Fails to Recite That Prohibition In Sucii Territory Had Been Established By An Election Held For That Purpose.</p> <p>Although the power of a city to enact an ordinance forbidding the sale of intoxicants within the city limits with penalties for its violation, is dependent upon the precedent fact that an election has been held in the comity under the local option article of the constitution and prohibition duly established in the territory covered by said ordinance by said election, yet because said ordinance does not mention or recite the fact that said election had been held and prohibition established thereby within the city limits, does not render the ordinance inoperative or void — but the ordinance is valid and stands in full force so long as said status continues of prohibition within the territory covered -by it as established by the vote of the electors at an election held to decide the question of prohibition or no prohibition in said territory.' Should the status of prohibition so established be at any future time dis-estalilished in said territory by another elec- ■ tiori called and held to re-test the question, then the ordinance in question would be automatically suspended in its ! operation so long as said new status of non-prohibition ” existed in the territory covered thereby. The affidavit charging a¡,violation of such an ordinance must in every casé allege an election held pursuant to law and prohibition duly established thereby within such territory, and this allegation must be established by proof.</p>

<p>Writ of error to Circuit Court of Suwannee County; Mallory F. Horne, Judge.</p>

<p>Appealed from Circuit Court of Suwannee County; Mallory F. Horne,-Judge.</p>

<p>Writ of error to Criminal Court of Record of Walton County; D. S. Gillis, Judge.</p>

<p>1. The courts do not declare statutes to be invalid because they may be regarded as unreasonable in their terms or in their operation, unless such unreasonableness in effect violates some provision or principle of the Federal or the State constitution.</p> <p>2. In passing upon the constitutionality of a statute the courts consider only the power of the legislature to enact the statute, not the wisdom of or the necessity for the enactment.</p> <p>3. An Act of the legislature prescribing police regulations, when attacked on constitutional grounds, should not be declared to be inoperative unless it clearly and inevitably violates some provision or principle of organic law.</p> <p>4 Where a common law cause of action is alleged against the operator of an automobile on a public highway, a failure to allege that the automobile was registered under the statute is not fatal.</p> <p>5. Where charges are not erroneous or harmful when considered with reference to the pleadings and the evidence, technical imperfections in the charges may not constitute reversible error.</p> <p>6. Where there are good counts sustained by the evidence, the presence of possibly defective counts in a declaration is not material, when there is nothing to indicate that the verdict may probably have been found under a defective count.</p> <p>7. The amount of the verdict must be grossly excessive to call for interference by the appellate court.</p>

<p>1. A bill in equity should not he dismissed sua sponte upon dissolving an injunction, if equity is shown for any substantial practical relief.</p> <p>2. A vendors lien is a right which the law by implication accords to the grantor of 'land, who has conveyed the title and reserved no express lien and has taken no security for the purchase money other than the personal obligation of the grantee, to subject the land in equity to the payment of the unpaid purchase money.</p> <p>3. Where by direction of the purchaser of land the title thereto is conveyed to another ,the vendor’s lien for the purchase money by implication of law attaches to and follows the land in the hands of the grantee, without any special agreement for its retention, and binds the lands as if it were conveyed to the person who undertakes to pay the purchase money.</p> <p>4. A vendor of land having an implied lien thereon for unpaid purchase money, may in equity require the application of unpaid purchase money due to the original vendee from a sul sequent purchaser from him where there are no countervailing equities.</p>

<p>Writ of error to Circuit Court of Duval County; Geo. Couper Gibbs, Judge.</p>

<p>A mortgage executed by tbe conditional vendee in possession of personal property before tbe expiration of tbe statutory-period of two years, confers no rights as against tbe conditional vendor, not possessed by tbe mortgagor.</p>

<p>Where land was conveyed to both husband and wife an estate by entirety was created at common law and upon the death of one spouse the entire estate went to the other. The common law has been expressly declared by statute to be of force in this State, except where it has been modified by competent governmental authority, and as there has been no such modification of this principle, an estate by entirety must be held ' to still exist.</p>

<p>Appealed from Circuit Court of Calhoun County; D. J. Jones, Judge.</p>

<p>1. While a writ of error is a common law writ, its issuance and ' return are controlled, by definite statutory enactments.</p> <p>2. Where a writ of error is knowingly “dated back” to the filing of the praecipe and the writ is made returnable “more than ninety days from the date of the writ,” in violation of the statute, this court will not after the dismissal of the writ and after the expiration of the time within which a writ of error may be issued, amend the date of the writ so as to make it effectual under the statute.</p>

<p>Appealed from Circuit Court of Hamilton County; Mallory F. Horne, Judge.</p>

<p>1. An executor has no implied power to sell lands of the testator when the legal title thereto passes to specific devisees other than the executor, and the will does not direct or show an intent for the payment of debts or’legacies with the proceeds of sales of the lands, or direct the executor to divide the estate among beneficiaries, and the power to sell land -is not in reality necessary in order to carry out any of the provisions of the will, and the will gives to the executor no directions whatever, and, considered as an entirety, discloses no intent to confer upon the executor power to sell lands of the testator.</p> <p>2. The receipt by a beneficiary of proceeds of an unauthorized sale of lands by an executor may not estop such beneficiary from claiming rights in the lands, the title to which was given by the testator’s will.</p>

<p>Writ of error to Circuit Court of Volusia County; J. W. Perkins, Judge.</p>

<p>1. Where a trustee of real estate takes no title that' may descend to his heirs or to his administrator, a deed covering the land made by the administrator and heirs of the trustee conveys no title.</p> <p>2 A grantee in a deed conveying no title, will not be heard to complain that possible rights in the grantor therein have been invaded.</p> <p>3. In a suit for partition where the only valid claim of the defendants is through E.', who has only the same rights in the property that the complainant J. has, both E. and J. being .children of the deceased ‘owned of the property by slave marriages, the defendants as the successors in title to E. cannot complain of an adjudication that E. had equal rights with J., when the defendants averred that neither E. nor J. took as heirs of the father, nor are any vested rights of the defendants invaded by according to J. equal rights with them in the property, since the defendants have only the rights of E., and J. and E. take equal shares under the same statutes allowing them to inherit from their father.</p> <p>4. One claiming title under a child of a slave marriage as against another child of a slave marriage, cannot complain that this court at one time held that a certain statute did not confer inheritable blood upon such offspring and subsequently held that a later statute conferring such rights was retro-active except where vested rights were invaded, where the title of both must stand or fall together.</p> <p>5. When the title of two daughters of a slave marriage depend entirely upon a statute and a decision of this court, the grantee of one of them will not be heard to complain that the same statute and decision may be void as interfering with rights vested under former decisions.</p> <p>O. The testimony examined in this case and found to sustain the contention of the appellees that Jane Mungen was the child of a slave marriage and cohabitation, and that she had inheritable blood under Chapter 4749 Acts of 1899.</p> <p>7. The testimony examined and found not to sustain the contention of the appellants that appellees are barred from sustaining this suit by the alleged laches of the appellees in bringing it.</p>

<p>Writ of error to Circuit Court of DeSoto County; E. A. Whitney, Judge.</p>

<p>A continuing duty rests upon the inspectors and clerks of an election to make proper returns of the result of the election held; and a similar continuing duty rests upon the county canvassing board to canvass the returns made to it by inspectors and clerks of election, and to declare the result of the election. Such duties may be enforced by mandamus.</p>

<p>1. Municipalities can lawfully exercise only such taxing, police and other powers as are conferred by express or implied provisions of statutes within the limitations imposed by organic-law.</p> <p>2. Every act of a municipality through its officers should be within the powers legally conferred, should be based upon a proper classification of subjects, should be reasonable, and should not violate any provision or principle of law.</p> <p>3. There is no express limitation upon the power of the Legislature to provide for levying a tax on licenses, whether it be levied directly by and for the State or thorugh a municipality for its purposes; but such power should not be so exercised as to deprive any person of property without due process of . law, or so as to deny to any person the equal protection of the laws, or so as to encroach upon the dominant authority of Congress to regulate interstate and foreign commerce, or ..so as to impose a tax or burden upon interstate commerce or upon the means employed by the government of the United States to execute its constitutional powers.</p> <p>4. Where there are -valid local or special laws relating to the powers and government of particular municipalities that are in conflict with the general statutory law, such local or special laws prevail.</p> <p>5. Notwithstanding the language of the general license revenue law, Chapter 5597, that “no further license tax shall be imposed by any county or municipality” upon telegraph companies, the powers conferred by the special charter act and the provision of the same act that “nothing in this act shall be construed as in any way abridging or limiting the powers which have been granted or may be granted to any municipal corporation by special act or by charter act for the purpose of requiring the payment of license taxes,” considered in connection with the terms and purpose of the organic law that the powers of any municipality may be controlled by local or special laws, confer upon the city the power to impose a valid license tax upon telegraph companies engaged in the city in doing intrastate business. If the ordinance of the city imposing thé license tax in question does not encroach upon the paramount authority of Congress to regulate interstate or foreign commerce, and does not impose a burden or tax upon interstate commerce or upon an agency of the United States in performing a service for the government, which are the only organic objections here made to the ordinance, it should be enforced.</p> <p>O. The permissive grant from the United States to Telegraph Companies to use the military and post roads for the poles and wire of such companies, “does not prevent the State from taxing the real or personal property belonging to the companies in the.State, or from imposing a license tax upon the right to do a local business within the State.</p> <p>7. The ordinance of the City of Miami imposing a municipal license tax of $100.00 on telegraxih companies relates solely to intrastate business done in the city; and does not apply to and cannot be lawfully enforced so as to apply to or regulate or impose a burden upon foreign or interstate messages or messages whether foreign, interstate or intrastate sent by or for the United States government. Thus construed the ordinance does not conflict with Federal law.</p>

<p>Appealed from Circuit Court of Hernando County; W. S. Bullock, Judge.</p>

<p>1. Authority given municipalities to impose taxes and special assessments for municipal improvements should be strictly construed especially when it adversely affects the rights of property holders to be fully advised of the burdens to be put upon them; and any material departure from the express authority is fatal to the special assessment.</p> <p>2. The provision in Section 4 Chapter 5806, Laws of 1907, that in providing payment for local street improvements the city council of Gainesville shall “by resolution fix the special assessment per front foot upon the abutting property * * * at an amount not exceeding either the actual cost of the work or the estimated special assessment stated in the ordinance providing for the work,” means that the assessment shall not exceed the actual cost of the work and shall not exceed the estimated assessment previously stated in the ordinance providing for the work to be done.</p>

<p>1. A person who insists on riding in a passenger ear of a railroad company who has no ticket and has not paid or offered to pay the regular price of transportation after being given a reasonable opportunity to do so, is a trespasser, and may under the statute be ejected by the conductor and servants of the company at any usual stopping place, or near any dwelling as they may elect, using no more force than is reasonably proper and necessary in so doing.</p> <p>2. The only duty a railroad owes a trespasser upon its cars is not to use excessive or unnecessary force or violence in removing him or ejecting him without regard to his safety; or in other words to refrain from intentional, wilful or wanton injury to him.</p> <p>3. A railroad company is not liable for a tortious act of its servant perpetrated on a trespasser, unless the servant is acting within the scope of his authority or employment, or by special authority..</p> <p>4. Where the relation of passenger and carrier exists a stringent rule of liability for the tortious acts of the latter’s agents prevails. A passenger is entitled to protection against violence, abuse or an assault and battery upon his person by the agents of the carrier though such acts may be unauthorized by the carrier and prompted by vindictiveness on the part of the agent or servant.</p> <p>5. By virtue of Section 2SS0 General Statutes of 1906, a railroad conductor has .no authority to sell a transportation ticket of any kind, and a ticket agent can not confer such authority upon the conductor.</p>

<p>Appealed from Circuit Court of DeSoto County; F. A. Whitney, Judge.</p>

<p>Corporations — Power op President to Employ Agents to Sell Corporate Property, Burden op Proop as to tiie Powers op the President.</p> <p>1. Prima facie the president of a private corporation has the authority to employ an agent to effect a sale of its lands, and if the corporation, in a suit against it by such agent to recover his commissions for effecting such sale under said employment, desires to show that its president had no authority to employ him for that purpose it is defensive matter within its peculiar knowledge that it must prove if it desires advantage therefrom.</p> <p>2. If a real estate broker who has earned his entire commission on the sale of lands, afterwards, voluntarily and without consideration, agrees to accept his commissions in installments as and when deferred payments of purchase price were made by the purchasers, provided such installments of commissions were promptly paid at the times when the deferred payments of the purchase money were made, he is absolved from such voluntary agreement to accept his commissions in installments upon the default of the vendors to pay him an installment of such commission promptly when a deferred payment of the purchase money is made, and particularly is he absolved from such voluntary postponement of his commissions, if the vendor absolutely denies all obligation to pay him any commission whatsoever, and flatly refuses to pay him any such commission — and he may then sue for and recover his whole commissions earned, regardless of any agreement between the vendor and purchaser as to deferred payment of the purchase price.</p> <p>3. If on the whole record a case has been fully and fairly tried and on the pleadings and proofs has resulted in a verdict and judgment that meets fully the demands of justice between the parties, technical errors in instructions given, and in refusals to give instructions requested, will be disregarded, if the result of the trial could not have been materially affected had such technical errors not been committed.</p>

<p>Appealed from the Circuit Court, Dade County; L. W. Bethel, Judge.</p>

<p>1. Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject matter thereof, and is responsible only for ordinary negligence. The bailee is not liable if the subject-matter of the bailment has been injured by some internal decay, by accident, or by some other means wholly without his default, and in the absence of some special stipulation an injury to or loss of the property falls on the bailor.</p> <p>2. A bailee for hire, where the use of the thing bailed is the essence of the contract, impliedly undertakes to keep the thing in repair, and must bear such expenses as are incident thereto, unless the necessity for them arises from some defect in the thing against which the bailor has expressly or impliedly warranted it. Extraordinary expenses are charged upon the bailor, and the bailee may compel reimbursement for them.</p> <p>3. Where the hired chattel is destroyed without fault of the bailee before the expiration of the period during which he was to have the use of it, he is, in the absence of express stipulation to the contrary, liable only pro tanto for the payment of the hite; but he may agree to terms that will compel him to pay the hire under any circumstances whatever.</p> <p>i. In general, the rule is that, independently of special agreement, express or implied, the bailor is not bound to make such repairs as are rendered necessary by ordinary wear,and tear, but he is ordinarily bound to provide that the article hired should be in good condition to last during the time for which it is hired, and beyond that he is liable only for extraordinary expenses arising from unexpected causes.</p> <p>5. The bailor, by the bailment, impliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired.</p>

<p>Appealed from tlie Circuit Court of Alachua County; James T. Wills, Judge.</p>

<p>1. An allegation that A’s “appearance was not entered by any one lawfully authorized to enter same” is a negative pregnant and repugnant to good pleading.</p> <p>2. The death of a party pending the process of advertising the property for sale under a final decree, does not avoid the order of confirmation, no suggestion of the death having been made.</p>

<p>This is a case of original jurisdiction.</p>

<p>In equity, as, at law, every presumption is in favor of the correctness of the ruling of the .trial judge, and a decree based largely or solely upon questions of fact will not be reversed, unless the evidence clearly shows that it was erroneous. Especially is this true where the testimony was taken before the trial judge.</p>

<p>Appealed from the Circuit Court of Polk Conn ty; F. A. Whitney, Judge.</p>

<p>Equity Practice — Injunction Against Sale of Chattels Under Process at Law.</p> <p>1. Where a party has a bill pending for foreclosure of a mortgage on personal property, and said property is levied upon under a judgment and execution in a distress proceeding for rent, he may by proper application in the foreclosure suit, either by amendment or supplemental bill, have a receiver appointed in such foreclosure suit and a restraining order against the sheriff or any one seeking to take the property by execution. In such a case there is no necessity and no valid grounds for a distinct and separate original bill for injunction, without showing some irreparable mischief from the levy and sale, for which ordinary legal remedies would be adequate.</p> <p>2. An independent bill in equity will not ordinarily lie to prevent the sale of chattels under execution, because by a .suit at law, full compensation may ordinarily be obtained in damages.</p>

<p>Writ of error to Circuit Court of Duval County; D. A. Simmons; Judge.</p>

<p>1. In an action against a railroad company for tbe wrongful death of a passenger, a declaration containing definite allegations showing the relation of passenger and carrier between the deceased and the defendant, with allgations of the negligence of the defendant in running its train, the particular acts of negligence that caused the death being stated- so that an issue may be made thereon for trial, is sufficient.</p> <p>2. The provision of section 3147 of the General Statutes authorizing a recovery by the father for the mental pajn and suffering by the mother because of the wrongful death of their minor child, is not clearly in excess of the legislative power.</p> <p>3. Where there is some substantial evidence to support a verdict for one party, a verdict for the other party should not be directed by the court on the ground that a preponderance of the evidence is favorable to the movant.</p> <p>4. The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same.</p> <p>5. The rule established by the statute is that if no evidence is introduced upon which a jury may lawfully find a verdict for one party, a direction may be given to find for the opposite party, but the judge should never direct a verdict for one party, unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained.</p> <p>6. In all cases where there is room for difference of opinion between reasonable men as to the existence of facts from which an ultimate fact is sought to be established, or when there is room for such difference as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not the views of the judge.</p> <p>7. The duty devolving upon the court in reference to directing a verdict on the evidence may become, in many eases, one of delicacy, and should be cautiously exercised.</p> <p>8. The statute requires the appellate court to review rulings on motions for new trial when properly presented on writ of error.</p> <p>9. After a verdict is rendered which is supported by substantial legal evidence, the trial court may porperly grant a motion for new trial on the ground, of the insufficiency of the evidence, when there is just ground for belief that the jury acted through prejudice, passion, mistake or any other cause, which properly should not control them, i. e., that the jury were not governed by the evidence, or where it appears to the court that there is difficulty in reconciling the verdict with the justice of the case and the manifest weight of the evidence.</p> <p>10. Where there is- conflicting evidence on the issues made and the verdict is not manifestly against the weight of evidence, the court should not interfere and set aside the verdict of a jury.</p> <p>11. A preponderance of the evidence means the probative weight, influence, force or power of the evidence as adducd, considered separately and collectively with reference to the issue.</p> <p>12. Where the probative force and weight of the testimony and of the circumstances in evidence do not so preponderate against the verdict as to indicate that the jury were not governed by the evidence, the appellate court will not set aside the verdict on the ground of the insufficiency of the evidence.</p>

<p>A personal decree or judgment against a married woman for her husband’s debts cannot lawfully be enforced as against her separate property, real or personal, without her consent duly given as the constitution requires; and consequently where she has not specifically consented in the manner required by the constitution that her separate property should bo liable therefor, it is not error to refuse to render a deficiency decree against a married woman for her husband’s debts.</p>

<p>Writ of error to Circuit Court of Columbia County; Mallory F. Horne, Judge.</p>

<p>Where in an action for damages the plaintiff' produces no evidence to show the proper measure of damages under the pleadings, a judgment for nominal damages will be affirmed on writ of error taken by the plaintiff below.</p>

<p>Where the défendant in error confesses error in rendering a judgment for attorney’s fees without taking evidence thereon, the judgment will be reversed and the cause remanded for furthr proceedings in accordance with applicable statutes.</p>

<p>Writ of error to the Circuit Court of Hamilton County; Geo. Couper Gibbs, Judge.</p>