Volume 67 — Florida Reports

<p>Writ of Error to Circuit Court for Dade County; Jas. W. Perkins, Judge.</p>

<p>Writ of Error to Circuit Court for Columbia County; M. F. Horne, Judge.</p>

<p>Appealed from Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>1. A case should not be taken from the jury unless the conclusion follows from the evidence as matter of law that no recovery can be lawfully hhd upon any view taken of facts that the evidence tends to establish.</p> <p>2. Where it is alleged that a defendant railroad company “failed and neglected to equip one of its cars with an automatic coupler which would couple automatically by impact, without the necessity of men going in between the cars to be coupled,” and that plaintiff was injured “while holding or attempting to hold the coupling appliances of said car in position with his hands to effect said coupling,” and the evidence shows the coupling could not be made automatically by impact, because the buff on the car being low interfered with the coupling, there is no fatal variance between the allegations and the proofs.</p> <p>3. A power of attorney not coupled with an interest in the subject matter though under seal, may be revoked by parol; and such revocation is binding on the agent and on third persons who have, notice of it, or have such knowledge as would reasonably put them upon enquiry that would disclose revocation.</p> <p>4. When a power of attorney is given, and the instrument vests in the agent no interest in the subject on which the power is to operate, but an interest of the agent therein is to accrue by the exercise of the power, the interest and the power are not united so as to make the power coupled with the interest.</p> <p>5. Authority to compromise a 'claim does not of itself convey an interest in the claim.</p> <p>6. Where notice of a revocation of a power of attorney may be inferred, evidence of an effective parol revocation of the power is admissible.</p>

<p>X. Where an alleged Building and Loan Association made a loan to the appellants, but there was no competitive bidding for the amount loaned as required by the Statute (Paragraph 2749, Gen. Stats, of 1906), and where the amounts covenanted to be paid weekly by appellants as dues on the loan, and premium and interest thereon, in the aggregate exceeded ten per cent per annum on the amount borrowed, the transaction does not come within the proviso of Section 3105 General Statutes of 1906, and is usurious.'</p> <p>2. The fact that an alleged Building and Loan Association has become insolvent and is in the hands of a receiver does not prevent the application of the usury statute of this State, in a suit by the receiver to foreclose a mortgage given to the association to secure the payment of a weekly sum of money as dues, interest and premium, which in the aggregate exceed ten per cent per annum.</p>

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

<p>Where mere negligence is alleged, and the plea avers a valid release “from all liability * * caused by the negligence of said defendant as alleged in said declaration,” a contract exempting the defendant from liability, “excepting such injury, loss or damage as may be directly occasioned by the gross' negligence of the” defendant, is not fatally variant from the averments of the plea.</p>

<p>In an action at law upon two promissory notes brought by the assignee of the payee against the maker of the notes in which a demurrer was sustained to the pleas of the defendant, it is immaterial whether such instruments were negotiable under the negotiable instruments law or not, when the pleas fail to show any meritorious defense against the payee in such instruments irrespective of negotiability, and the demurrer to such pleas was properly sustained.</p>

<p>Appealed from Court of Record for Escambia County; Kirke Monroe, Judge.</p>

<p>Appealed from Circuit Court for Duval County; George Couper Gibbs, Judge.</p>

<p>J. 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>2. In directing a verdict, the court is governed practically by the same rules that are applicable in demurrers to evidence.</p> <p>3. A parly in moving for a directed verdict; admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.</p> <p>4. Where on the evidence adduced there is room for a difference of opinion between reasonable men as to the existence of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the ease to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not primarily the views of the judge.</p> <p>5. The duty devolving upon the court in reference to directing a verdict on the evidence may become, in many cases, one of delicacy, and it should be cautiously exercised.</p> <p>6. Electricity is an invisible force highly dangerous in its use, and those who employ others where electricity or other dangerous agencies are used, should exercise such care for the safety of the employees as is commensurate with the dangers involved and the competency of the employees.</p> <p>7. Where there is substantial evidence upon which a finding and judgment may lawfully be for one party, a judgment entered on a directed verdict for the other party may be reversed.</p>

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

<p>Appealed from Circuit Court for Duval County; George Couper Gibbs, Judge.</p>

<p>Appealed from Circuit Court for Duval County; G. C. Gibbs, Judge.</p>

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

<p>Writ of Error to Circuit Court for Alachua County; J. T. Wills, Judge.</p>

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

<p>Landlord and Tenant — Damages Where Lessor Fails to Deliver Possession to Lessee — Remote and Speculative Profits in Prospective Business not Allowed— Offers for Property, Either to Rent or to Buy is not Proof of its Value and Should not be Introduced as Evidence.</p> <p>1. The general rule Is that the lessee can recover from the lessor for breach of a contract to deliver possession of the leased premises the difference, if any, between the rent contracted to be paid and the actual rental value of the premises. Prospective profits from the business that the lessee expected to conduct in said premises are too remote and speculative, dependent upon too many contingencies to be permissible as an admeasurement of damages in such cases.</p> <p>2. In proving the value of property, it is improper to admit testimony of an alleged offer of a particular price for the property, as tending to show its value. This is a kind of proof that could be so easily manufactured that its admission would be too dangerous to be tolerated. Neither a party who has made an offer for the land, nor the owner should be permitted to testify to the same for the purpose of proving value.</p>

<p>Where the seller of a fine looking mule refused to guarantee the soundness of the latter, but was well aware that it was afflicted with a hidden defect, not discoverable by ordinary observation, and where he untruthfully stated to the buyer that he did not know anything about the mule, and intentionally concealed the defect in the animal, the buyer when he discovered he had been imposed upon had a right to rescind the trade and recover his own property, traded for the diseased mule.</p>

<p>Writ of Error to Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>1. Orders duly made by the railroad commissioners within their statutory authority to regulate the maintenance and operation of railroads as common carriers, may be enforced in appropriate proceedings, when they are not shown to be illegal or unreasonable. Such orders when duly made under authority conferred are by statute made prima facie reasonable and just; and the burden is upon the respondent to clearly show that they are unreasonable in their terms or in their practical operation.</p> <p>2. In mandamus proceedings to enforce an order of the railroad commissioners duly made within the authority conferred requiring a railroad company to furnish designated facilities for the accommodation of passengers and shippers at a station on its line of railroad, the main question to be determined is not whether the relators erred in their finding on the facts upon which they acted in making the order involved here, but whether the relators as railroad commissioners in making the order exceeded their authority or abused their official discretion to the substantial injury of the respondents’ constitutional property rights.</p> <p>3. When acting within the authority conferred upon them, a wide discretion is accorded to the railroad commissioners, and their valid orders, rules and regulations should be made effective as contemplated by the constitution and statutes. The statutes expressly provides that the authorized rules and regulations of the railroad commissioners “shall be deemed and held prima facie reasonable and justand when action is taken by the commissioners in the exercise of their undoubted authority, their administrative discretion will not be controlled by the courts and their regulations will be made effective in appropriate proceedings where an abuse of discretion is not clearly shown in unreasonable and arbitrary action taken.</p> <p>4. In determining whether a rate, rule, regulation or order of the Railroad Commission upon a subject within its authority is so unreasonable and arbitrary as to be illegal and unenforceable, the court, in deference to the governmental functions conferred by law upon the commissioners, will not only require the prima facies of reasonableness impressed by the statute upon the rate, rule, regulation or order to be overcome by admission or proofs, but will require the admissions or proofs of facts tending to show unreasonableness to be clear and convincing, every reasonable doubt being yielded in favor of the rate, rule, regulation or order.</p> <p>5. To afford reasonably adequate facilities at its own stations is an absolute duty of the carrier; and the burden of furnishing such facilities does not invade the respondent’s property rights, when the requirements are not in fact unreasonable and arbitrary.</p>

<p>Writ of Error to Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>Writ of Error to Circuit Court for Santa Rosa County; D. J. Jones, Judge.</p>

<p>1. That the location of its parallel tracks was constructed under municipal direction is not a defense against injury to a passenger on a street car by a passing car, when the narrow clearance between the cars is due to the act of the street car company in putting on much wider cars after the tracks were located.</p> <p>2. The possibility that the elbow of a passenger in a street car, with his arms resting naturally on the sill of an open window, may have slightly protruded will not prevent recovery when the sudden jerking of the car threw the arm out against a passing ear.</p> <p>3. The testimony of a witness should not as matter of law be entirely rejected, because he stated that the sudden movement of the ear threw him “forward.”</p> <p>4. The court should not submit to the jury a count in a declaration which the evidence does not tend to support.</p>

<p>1. Exceptions to an answer for impertinence should be overruled if they are too broad or are to defensive matter not wholly irrelevant to the bill as framed.</p> <p>2. When the complainant’s title depends upon a Sheriff’s deed, payment of the judgment prior to' the levy of the execution is relevant defensive matter.</p> <p>3. A Sheriff’s deed may be attacked by showing that the statutory steps of notice have been ignored.</p> <p>4. The surroundings, facts and circumstances may aid in the construction of an ambiguous deed.</p>

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

<p>1. An information charging that the defendant did wantonly and maliciously shoot at and into a certain dwelling house, to-wit: the dwelling house of one E. which was then and there being used and occupied, is sufficient under the statute defining the offense of wantonly and maliciously shooting into a dwelling which is being used or occupied.</p> <p>2. The evidence sustains the verdict.</p> <p>3. Where an erronous sentence is imposed the judgment may be reversed for a proper sentence.</p>

<p>1. A misrepresentation made by a vendor of real estate, as to a material fact, knowing at the time that it was untrue, upon which statement the purchaser relies, is actionable.</p> <p>2. Where there is ample evidence of misrepresentation of existing material facts and resulting injury as sufficiently alleged, a decree of cancellation of a contract for the sale of lands will be affirmed.</p>

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

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

<p>1. In a bill for divorce upon tbe ground of desertion, it is sufficient to allege the statutory language, coupled with the statement that the husband without cause left the wife penniless and continued away from her for the statutory period, without in anywise contributing to her support.</p> <p>2. When the husband without cause abandons the wife, and makes no offer to resume the marital relation, she will not be denied a divorce because she makes no effort to bring him back.</p>

<p>1. In an action of replevin, where the defendant enters a special appearance “for the purpose of moving to quash the return to the writ of replevin” and files his motion to that effect, which is denied, and the defendant then proceeds to defend the action on the merits, he will be considered to have waived any defect which may exist in the service of the writ.</p> <p>2. A defendant in an action at law, who has appeared specially for the purpose of contesting the validity of the service of the summons upon him and such matter has been determined adversely to him, in order to preserve his status as not having been properly served with the summons, so as to give the court jurisdiction over his person, must refrain from taking any subsequent steps to defend the action upon the merits, in the event he proceeds to a trial upon the merits, he can not thereafter in an appellate court be permitted to raise such question of jurisdiction, but will be held to have entered a general appearance.</p> <p>3. A writ .of error to what purports to be a final judgment of a Circuit Court operates as a general appearance in the case of the party taking such writ.</p> <p>■4. It is tlie duty of a party resorting to an appellate court to make tlie errors complained of clearly to appear, if they in truth exist, every presumption being in favor of the correctness of the respective rulings of the trial court.</p> <p>S5. If a defendant in an action of replevin conceives that the declaration filed therein is defective in failing to specify the county in which the property which forms the subject-matter of the controversy is detained, he should test the sufficiency of the declaration by demurring thereto.</p> <p>6. Venue laid in the margin, not repeated in the body of the declaration, is sufficient, though the action be local.</p> <p>7. An assignment based upon the denial of the motion for a new trial cannot be considered by an appellate court, in the absence of an exception to such ruling.</p>

<p>1. A lease of real estate for twenty years, containing an option by the lessee to purchase the leased premises at any time during the life of the lease — the purchase price to be fixed by five arbitrators or appraisers — two to be chosen by the lessor, two by the lessee, and the fifth by the other four — • is a legal and binding contract enforcable in equity between the parties to the lease contract and their assigns and privies, the words “at a price and upon terms to be decided, fixed and determined by a majority vote of the board of five arbitrators,” taken in connection with the context could only mean that the arbitrators were to fix the price to be paid for the property and the time and manner of payment, and the only proper parties to engage in the selection of the arbitrators were the complainant and the owner of the legal title.</p> <p>2. A contract of lease containing an option on the part of the lessee to purchase land, upon acceptance of the option becomes a binding contract between the parties, and implies that a good title shall be made.</p>

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

<p>Appealed from Circuit Court for Columbia County; M. F. Horne, Judge.</p>

<p>Writ of Error to Circuit Court for Liberty County; J. W. Malone, Judge.</p>

<p>One who brings ejectment as attorney in fact for others should, prove a valid power of attorney.</p>

<p>Time not being of the essence of a contract, and the vendee being in possession by consent of the vendor, mere delay in bringing suit to compel a conveyance of the title or in paying the balance, will not bar relief, when the vendor has not sought to limit or rescind the contract.</p>

<p>Writ of Error to Circuit Court for Clay County; Geo. Couper Gibbs, Judge.</p>

<p>Appeal from Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>Writ of Error to Circuit Court for Madison County; M. F. Horne, Judge.</p>

<p>Appealed from Circuit Court for Suwannee County; M. F. Horne, Judge.</p>

<p>1. A license to cut a limited number of trees on a small tract of land, does not impliedly transfer a right to build a tram-road through the tract.</p> <p>2. The evidence justifying a verdict for exemplary damages, a verdict for compensatory damages only will not be disturbed on complaint of the defendant.</p>

<p>1. Tbe lawmaking power of tbe legislature of a State is subject only to tbe limitations provided in tbe State and Federal Constitutions; and no duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that under any rational view that may be taken of the statute it is in positive conflict with some identified or designated provision of constitutional law.</p> <p>2. There is no express provision in the constitution of the State of Florida as to special assessments by a municipality for local improvements. Section 4 of Chapter 4089 of the Laws of Florida, Acts of 1891, page 134, known as the Charter Act of the City of Ocala, which reads as follows, does not violate organic law or deprive any citizen or property-owner of any constitutional right:</p> <p>“The said City Council shall have power by ordinance to regulate, provide for and compel the construction and repair of sidewalks and pavements; and if the owner or owners of any lot or lots shall fail to comply with the provisions of such ordinance within such time as may be prescribed therefor, -the City Council may contract for the construction and repair of such sidewalks or pavement, and the amount contracted to be paid for the same by the city shall be a lien upon such lot or 'lots along which said sidewalk or pavement is constructed or repaired, and such amount may be assessed as a special tax against the lot or lots adjoining-which such sidewalk or pavement shall be constructed or repaired, and the same may be enforced by suit at law or in equity, or the said amount may be recovered against the said owner or owners by a suit before any court of competent jurisdiction.”</p> <p>3. In a suit in equity by a municipality against an owner of real estate for the enforcement of a lien for the building of a sidewalk by such municipality along the lines of such real estate, where the allegations in the bill show that such owner had direct notice of the special assessment against his property for the building of a sidewalk, whereby such owner was afforded ample opportunity to go before the city council with a petition or complaint, if he so desired, or to resort to a court of equity for a restraining order, but did neither, and where it is alleged in such bill “that the construction of the sidewalk aforesaid was done with the knowledge and acquiescence of the defendant and without objection by the defendant or anyone in his behalf,” which allegations the defendant admits to be true by interposing a demurrer to the bill, such defendant is not in a position to take advantage of any omissions or irregularities in the ordinance providing for the construction of sidewalks, but will he held to be estopped by his conduct from so doing, where no constitutional right has been violated.</p> <p>4. Under the provisions of Section 8 of Article VIII of the Constitution of Florida, “The legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time,” the legislature may by statute confer upon a municipality the authority by ordinance to regulate, provide for and compel the construction and repair of sidewalks and to levy a special assessment upon lots along which such sidewalks are constructed, leaving the municipality free to pursue such course as it might think best in making such special assessment, So long as no principle of organic law is violated. Under such authority a municipality may in providing for such special assessment adopt what has become known as the “front foot rule.”</p> <p>5. An appellate court cannot take judicial notice of the location of the different streets and avenues in a city or town.</p> <p>6. Where there is a substantial compliance with lawful requirements in the construction of sidewalks and street improvements by a municipality and it is not made to appear that the improvements as made are unsuited to the purposes designed, or that such improvements are of no practical value, a lien under the statute on the adjacent property for such improvements may be enforced for the real value thereof •under a lawful contract.</p> <p>7. Where neither the charter act nor the ordinance provide for a special assessment for the construction of sidewalks against each lot separately, such special assessment may be , levied in gross upon several lots of the same owner.</p>

<p>1. In an actiou against a railroad company for damages impersonal injuries sustained in the running of a train, under an allegation that the “passenger train was by and through the negligence and carelessness of the defendant in the running of said train, derailed and wrecked, whereby plaintiff was” injured, any competent testimony is admissible that is relevant to the alleged “negligence and carelessness of the defendant in the running of said train,” whereby the train was “derailed and wrecked,” including the condition and speed of the train, and the condition of the roadbed and track at the time and place of the alleged injury.</p> <p>2. Where liability is shown the burden is upon the plaintiff to prove by a preponderance of the weight of legal and competent evidence, the nature and extent of the injuries sustained, of the character substantially as alleged.</p> <p>3. In an action for negligent injury, under an allegation that the plaintiff was injured in her person and “was thereby rendered incapable of performing her duties of school teaching, which she has pursued with great success * and for which she had been specially trained and educated” and that “by reason of such injuries * she did necessarily lay out divers sums of money in and about endeavoring to have herself cured of her said injuries,” the plaintiff could by competent evidence show personal injuries, loss of earning capacity as a school teacher, and “sums of money” paid “in endeavoring to have herself cured of her said injuries.”</p> <p>4. A motion for new trial upon the ground that the evidence is insufficient to prove the facts in issue, is at common law to be determined by the trial court, and its ruling thereon is not, reviewable by the appellate court at least where there is any legal evidence to* sustain all the essential elements of the finding; and an order granting a new trial, not being a final judgment, is not at common law subject to direct review by writ of error.</p> <p>5. Any principle of tbe common law may be changed by statute when the constitution is not thereby violated.</p> <p>6. Pursuant to the Statute, sections 1693 and 1694 General Statutes, it is the duty of the appellate court, in appropriate proceedings duly taken, not only to review questions of law, but to determine whether the evidence is sufficient to sustain the findings of fact in a cause; and if material error appears in such findings that probably causes substantial injustice, it is the duty of the court to correct the error in appropriate proceedings.</p> <p>7. The granting or denial of a motion for new trial in a litigated cause necessarily involves judicial power and discretion, the essence of which, as distinguished from mere procedure, is by the constitution vested in the courts, not in the legislature.</p> <p>8. The legislature may lawfully prescribe rules of procedure which the courts will observe; but the legislature has no power under the constitution to regulate the judicial discretion that is vested in the courts.</p> <p>9. Appellate courts exercise judicial power and discretion in passing upon the correctness of proceedings in trial courts; but such power and discretion is to be exercised for purposes of review to correct material errors that appear to do substantial injury or injustice to the complaining party, and not, except in correcting material errors, to regulate the exercise of reasonable discretion by the trial court, whose judicial acts are presumed to accord with law and with the substantial justice of the cause.</p> <p>10. There are so many matters occurring in the course and progress of a judicial trial that, in the opinion of the. judge who tried the case, may affect the merits and justice of the cause to the substantial injury of one of the parties, that of necessity a large discretion should be accorded to the trial court in granting a new trial, to the end that the administration of justice may be facilitated; and the appellate court will not reverse an order granting a new trial, unless it clearly appears that a judicial discretion has been abused in its exercise, resulting in injustice or that the law has been violated.</p> <p>11. The exercise of the power to suggest a remittitur is not compulsory, and the trial court may grant a new trial where in his opinion the ends of justice require it.</p> <p>12. ■ On a writ of error taken under the Statute to an order granting a new trial in a civil action at law the only questions to be considered are those involved in the order granting a new trial.</p> <p>13. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it.</p> <p>14. Where a trial court erroneously grants a new trial in an action at law the order may be reversed on writ of error duly taken and prosecuted under the statute; but in such cases it must clearly and affirmatively appear by the transcript of the record that in granting a new trial the trial court abused a sound judicial discretion or violated some provision or settled principle of law thereby manifestly doing substantial injustice and injury to the party who obtained the verdict.</p> <p>15. Where the trial court grants a new trial containing several grounds without stating any ground upon which the ruling ' -was based, the order will be affirmed if any ground of the motion is sufficient to authorize the granting of the new trial. And it must be assumed that the court based the order on the grounds that warrants it.</p> <p>16. Where a new trial is granted, and there is such a conflict in ■ the evidence that this court cannot say the trial judge abused his.discretion in granting such new trial, his ruling will not be disturbed:</p> <p>17. Where the evidence on a material issue in a cause is conflicting, and it does not so preponderate in favor of the verdict as to show an abuse of discretion or the violation of any provision or settled principle of law in granting a new trial, the action of the trial court will not be disturbed on writ of error.</p>

<p>1. When the Governor actually calls the Legislature together under Section 8, Article IV, and Section 2, Article III of the Constitution of 1885, it is immaterial what he may have thought of his action.</p> <p>2. Where the Journals of the House of Representatives show that on the final passage of a bill a large majority of the House voted for it, but six members were not accounted for as voting aye or no, it is not essential to a compliance with the constitutional provision, section 17, Article III, that the Journal should show the six members not accounted for either refused to vote, or voted in the negative, or that there were no negative votes.</p> <p>3. Chapter 6237, Law of 1911, is not unconstitutional and void because in the 3rd Section it confines the right of intervention in a proceeding brought to validate the bonds issued under the authority of the act, to citizens of Florida who may be residents in the county or municipality desiring to issue the bonds. This question under Section 8, Article VIII of the Constitution is within the control of the Legislature.</p> <p>4. Under the authority conferred upon the Mayor and City Council of Jacksonville by Sections 3 and 9 of Chapter 6415, they had authority to change the language of the bonds and coupons as to the place of payment in New York, and in lieu thereof insert the following: “The United States Mortgage and Trust Company in the City of New York.’’</p> <p>5. The fact that the bonds which are involved in this validating proceeding are made to bear interest from March 1st, 1913, does not render ineffectual the decree of validation dated 24th of June, 1913.</p> <p>6. The fact that the coupons of the bonds issued in this case are made acceptable for taxes or other dues to the City of Jacksonville, does not authorize the city to issue bills of credit or currency, nor does this provision create an unlawful discrimination between classes of individuals holding bonds and those not holding them.</p> <p>7. Where a Board of Election Commissioners whose duty it was to canvass an election, consisted of three members, and two of them met, pursuant to statutory notice, and proceeded to canvass the returns of the election and signed the certificate showing the result of the election, the two Commissioners thus acting constituted a quorum for transacting business, and their certificate was legal.</p> <p>8. It is not a fatal objection to the canvass of a vote by Election Commissioners, under Chapter 6415 Laws of 1912, that it was made from the returns in the office of the City Recorder and not from the returns filed with the Chairman of the Board of Election Commissioners, inasmuch as the said returns were in duplicate, and both of equal dignity, authority and probative force.</p> <p>9. Chapter 6237 Laws of 1911, is broad enough in its terms to apply not only to then existing laws, but also covers proceedings brought under subsequent statutes, and the title of the act fairly indicates the nature of the act, and the true effect of the same.</p> <p>10. There is no conflict.between sections 3 and 9 of Chapter 6415 Laws of 1912, because, construing the two sections together,' the gold coin mentioned in Section 9 is the kind of gold coin described in Section 3, i. e., gold coin of the United States of the present standard of weight and fineness.</p>

<p>1. The general and well-established rule is that a release or discharge of one or more joint tortfeasors, executed in satisfaction of the tort, is a discharge of them all, on the ground that the party injured can have but one satisfaction for his injury. Each is considered as sanctioning all the acts of the others, thereby making them his own, and each is liable for the whole damage as if it had been occasioned by himself alone; hence the law considers that he who pays for the injury has paid for all, and there is nothing left for which the other tortfeasors can be liable.</p> <p>2. A release, executed to one tortfeasor, in satisfaction of the tort, being taken most strongly against the releasor, as a general rule, is conclusive evidence that he has been satisfied for the wrong; and after satisfaction, although it moved from only one of the tortfeasors, no foundation remains for an action against anyone. A sufficient atonement having been made for the trespass, the whole matter is at an end. It is as though the wrong had never been done.</p> <p>3. Where, although concert is lacking, the separate and independent acts of negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or negligence alone might not have caused it. To make tortfeasors liable jointly there must be some sort of community in the wrong-doing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert if their concurring negligence occasions injury.</p> <p>4. The rule under which'parties become jointly liable as tortfeasors extends beyond acts or omissions which are designedly co-operative, and beyond any relation between the wrongdoers. If their acts of negligence, however separate or distinct in themselves, are concurrent in producing the injury, their liability is joint as well as several. Each becomes liable because of his neglect of duty, and they are jointly liable for the single injury inflicted because the acts or omissions of both have contributed to it.</p> <p>5. It is negligence on the part of an electric street railway company, in the construction and establishment of its road, to so place one of its trolley wires over the track of a steam railway company as not to afford sufficient space for the latter’s trains to easily and conveniently pass, without risk of danger and injury to its servants and employes. It is negligence on the part of a steam railway company to permit an electric street car company to so construct and maintain over the track of the steam railway company a trolley wire that it will endanger the lives of its servants and employes. In the event of an injury to an employe of the steam-railway company, while in the discharge of his duty, occasioned by his coming in contact with such wire, the electric company and the steam railway company are jointly liable as tortfeasor for such injury.</p> <p>6. The mere fact that a plaintiff might not be able to sue all the tortfeasors in the same forum or join them in the same action would not of itself change the liability of such tortfeasors or prevent them from being jointly liable.</p> <p>7. The acceptance of a sum of money from one joint tortfeasor in satisfaction of a claim for damages, and the execution of a release and discharge under seal of such joint tortfeasor from all damages by reason of the injuries inflicted, reciting that such sum of money was received “in full compromise, payment, discharge, accord and satisfaction” for or on account of such injuries, operates as a release of the other joint tortfeasor, even though it is stipulated therein that the release of such tortfeasor shall not operate so as to discharge the other, and the right to sue the other joint tortfeasor is expressly reserved. Such an instrument will be held to be a release and not a covenant not to sue.</p>

<p>Criminal Law — Appellate Practice — Judgment and Sentence in Felony — Dismissal of Writ of Error.</p> <p>1. In criminal as well as in civil causes there must be a final judgment to support a writ of error from an appellate court.</p> <p>2. Where the only semblance of a final judgment and sentence in the record of a criminal case brought to the appellate court by writ of error where three defendants were jointly indicted for and convicted of a felony, is as follows: “Notice by defendants counsel of a motion for a new trial was given. On October 23rd, 1913, motion argued and sentenced to two years in States prison on eachHeld, to be wholly insufficient as a final judgment to support a writ of error. Held further that a correct formula of the.entry of judgment and sentence in the case should have been substantially as follows:</p> <p>“Now on this day came in person the defendants J. M. and A. O. H. and J. O. McD. with their counsel into open court, and each of them being separately asked by the court whether he or they had anything to say why sentence of the law should not now be pronounced upon him, say nothing. It is therefore the judgment, order and sentence of the co_urt that you J. M. and A. G. H. and J. G. McD. and each of you, for the crime of which you have been and stand convicted, be imprisoned in the State penitentiary of the State of Florida for a period of two years from the date of your delivery to the officers thereof.”</p>

<p>Writ of Error to Circuit Court for Escambia Coiinty; J. Emmet Wolfe, Judge.</p>

<p>1. Objections to formal matters should be made promptly, else they may be waived.</p> <p>2. A final decree in foreclosure ordering the defendant to pay a certain amount, and that in default thereof the mortgaged property be sold, is not a money decree, even though the master appointed to make the sale is directed to report to the court should there be a deficiency.</p> <p>3. The appellate court in correcting an obvious clerical misprision in a decree, may deny the costs of an appeal to an appellant who made no effort to have the error corrected in the lower court.</p>

<p>Appealed from Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>1. Where a municipality is duly authorized to exercise a particular municipal function and the manner of the exercise of the authority is not defined by statute but is left to the City Council, the courts will not undertake to control the manner of the exercise of the authority by the City Council where no applicable rule of law is violated, and the authority given is not exceeded or abused.</p> <p>2. Municipal bonds can lawfully be issued only for municipal purposes; and when a proposed issue of bonds appears to be for a “municipal purpose,” the statute does not require the proceedings taken by the municipality or by the proper electorate preliminary to the issue of the bonds, to designate the particular municipal purpose for which they are intended to be used.</p>

<p>Writ of Error to Criminal Court of Record for Dade County; IT. F. Atkinson, Judge.</p>

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

<p>Appealed from Circuit Court for Volusia County; Jas. W. Perkins, Judge.</p>

<p>Appealed from Circuit Court for Dadq*Countv; Dan i el A. Simmons, Judge.</p>

<p>1. Where a writ of error is duly taken to a final judgment entered by tbe clerk consequent upon a default entered by the clerk, any material errors in the proceedings that reasonably could do injustice to the plaintiff in error may be cause for reversing the judgment.</p> <p>2. Where service of summons ad res is had upon only one of two defendants, and the praecipe for default asks for a default “against the defendant,” it is material error for the clerk to enter a default against the “defendant,” without stating which one.</p> <p>3. Where service of summons ad res is had upon two defendants, and the praecipe for default asks for a default “against the defendant,” it is material error for the clerk to enter a default against the “defendants.”</p>

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

<p>1. In passing upon an assignment based upon a ruling sustain- ' ing a demurrer to a plea, an appellate court will restrict its investigation to tbe grounds stated in tbe demurrer, unless tbe plea is so faulty as to constitute no defense to tbe action.</p> <p>2. Whenever fraud is relied upon in any pleading, either at law or in equity, the allegations or averments should be specific and the ultimate facts constituting the particular fraud relied upon should be stated with certainty and distinctness, else such pleading, upon proper attack, will be held bad. The sufficiency of pleas setting up fraud as a defense is properly-raised by demurrer.</p> <p>3. To constitute fraud, a representation must be of a specific material fact that is untrue and known to be so, and. stated for the purpose of inducing another to act, upon which statement the other relies in acting to his injury.</p> <p>4. Averments in pleas of mere opinio js and promises and of indefinite matters are not sufficient to.show fraud.</p> <p>5. In averring false representations, ultimate material facts, not opinions or promises, directly affecting the transaction should be clearly and distinctlv stated showing the specific representations made and relied on, the falsity of the representations, and the resulting injury to the party to whom they were made from acting thereon.</p> <p>(i. Where there is in fact a default, the omission to make an entry thereof may be a merely technical and harmless error.</p>

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

<p>Writ of Error to Circuit Court for Duval County; Daniel A. Simmons, Judge.</p> <p>Shackleford, C. J., and Cockrell, J., dissent.</p>

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

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

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

<p>Appeal from Circuit Court for Levy County; J. T. Wills, Judge.</p>

<p>In an action on an account stated, it is material error to direct a verdict for the plaintiffs where no account is put in evidence and there is no evidence that the one who received or accepted or adjusted the account was authorized to do so for the defendant.</p>

<p>1. The word “company” as used in Secs. 3152, 3153 Gen. Stats, includes “corporations.”</p> <p>2. The guaranties of due process of law and of equal protection of the laws contained in the Fourteenth Amendment are expressly applicable to the States, and protect corporations as well as individual persons.</p> <p>3. A corporation is not a citizen within the protection of the “privileges and immunities” provisions of the Federal Constitution.</p> <p>4. The provisions of the organic law that no person shall b< deprived of life, liberty or property without due process of law, nor denied the equal protection of the laws, are not intended to hamper the States in the discretionary exercise of any of their appropriate sovereign governmental powers, unless substantial private rights are arbitrarily invaded by illegal or palpably unjust, hostile and oppressive exactions, burdens, discriminations or deprivations.</p> <p>5. Where a statute may be so construed as to render it unconstitutional, a construction in accord with organic law should be adopted when it can fairly be done; and when by a just and reasonable construction of a statute with reference to-the object designed, its operation and effect will not violate the constitution, a party attacking the statute on the ground that it may be so construed as to invade private rights secured by the constitution, must show that in the case he presents, the effect of applying the statute is to deprive him of a constitutional right.</p> <p>6. The application of a statute in a particular case may violate organic law, but the statute as framed may not be unconstitutional when properly applied.</p> <p>7. All property rights are held and enjoyed subject to the fair exercise of the State’s police power to establish regulations that are reasonably necessary to secure the general welfare of the State.</p> <p>S. The wisdom and necessity, as well as the policy, of a statute are authoritatively determined by the legislature.</p> <p>Í). Courts may enquire only into the power-of the legislature to lawfully enact a particular statute; and all doubts as to its constitutionality are resolved in favor of the statute.</p> <p>10. The common law rule making it unlawful and a trespass for live stock belonging to one person to go upon the unenclosed premises of another, has been changed in this State by legislative action.</p> <p>11. A statute should not be declared to be unconstitutional and ineffectual unless its terms or its operation make that result necessary in giving supremacy to the constitution.</p> <p>12. If there is any sphere within which a statute may operate without violating organic law it should within that sphere be made effective in appropriate proceedings taken for that purpose, for statutes are binding upon the courts as the law of the land when not in conflict with the constitution.</p> <p>13. A statute prescribing regulations does not offend any provision of organic law merely because it may not in legal effect cover the entire field that is subject to similar or other legislative regulations.</p> <p>14. Courts have no power to annul a legislative enactment on the ground that it is unreasonable in its terms or in its operation, when the statute does not because of arbitrary unreasonableness conflict with the superior force of the constitution as the higher law.</p> <p>15. The legislature has a wide discretion in classifying the subjects of police regulation; and a legislative classification will not be annulled by the courts unless it is wholly without a reasonable or practicable basis.</p> <p>10. Unless a legislative regulation is applicable to some persons and not to others under essentially similar conditions so as to make the classification an arbitrary exercise of the powers of Government that in material substance and effect unjustly discriminates between persons similarly conditioned with reference to the subject regulated, there is no denial of the equal protection of the laws.</p> <p>17. As applied to any company or individual who, being the possessor and occupant of lands, negligently leaves open and unenclosed holes or pits of the stated dimensions that have been made on the lands, in which cattle perish, sections 3152 and 3153 are not unconstitutional and inoperative in authorizing the recovery of double damages.</p>

<p>The evidence as to ownership of property pledged examined and found insufficient to support a conviction of obtaining money under false pretenses.</p>

<p>1. The Supreme Court of Florida had the authority in 1873, when such rule was adopted, under the statute as it then stood, to adopt Equity Rule No. 89, which reads as follows: “In suits in equity for the foreclosure of mortgages, a decree may be rendered for any balance that may be found due to the plaintiff over and above th'e proceeds of the sale or sales, and’ execution may issue for the collection of the same as is ■ . prescribed in the rule regulating the equity practice where the decree is solely for the payment of money.”</p> <p>2. Equity Rule No. SO does not authorize the entry of a deficiency decree against the endorsers of a note, but only against the mortgagor.</p> <p>3. In the absence of any statute or rule so authorizing, a deficiency decree cannot be entered in a suit for the enforcement of a mortgage lien against the endorsers of the note.</p>

<p>In a habeas corpus proceeding brought by petitioner and his wife to obtain possession from the father of a female child about seven years old, where it appears that the father has never in a legal way relinquished his parental rights on the child, and that he is a fit person to have the custody of her, the fact that petitioner and his wife have raised the child from its infancy, and are deeply attached to her, will not suffice to deprive the father of his common law right to custody of his child, nor relieve him from his parental obligations to her.</p>

<p>1. An allegation that an accused “being duly summoned to work on the L. and T. public road failed to work as required by statute, contrary to statute,” does not entirely fail to allege an offense under Chapter 6537 Acts of 1913, so as to make a conviction thereunder wholly without authority of law.</p> <p>2. A criminal charge is not fatally defective because it does not allege defensive matters that are not a part of the definition of the offense charged.</p> <p>3. While the title of an act is by the constitution required to briefly express the subject of the enactment, it need not state matters properly connected with such subject that are embraced in the body of the law; and the language used in expressing tbe subject of tbe enactment is within the legislative discretion.</p> <p>4. If the language of the title considered with reference to the legislative intent as shown by the purpose and object of the act, may by any fair intendment cover the subject of the act, the courts will not because of an asserted defective title refuse to give effect to any matter contained in the body of the enactment that is germain to or properly connected with the subject of the law, where the title is not so worded as to mislead an ordinary mind as to the real purpose and scope of the particular enactment.</p> <p>5. A wide latitude must of necessity be accorded the legislature in its enactments of law; and it must be a plain case of violating the requirements of the organic law as to titles of acts before the courts will nullify statutes or portions thereof as not being within the purpose and scope of the subject as expressed in the title and of “matter properly connected therewith.”</p> <p>G. If the title of an act fairly gives notice of the subject of the act so as to reasonably lead to an inquiry into the body thereof, it is all that is necessary. The title need not be an index to the contents of the act.</p> <p>7. The provisions of Sections 10, 11 and 12 of Chapter 6537 are within the subject expressed in the title of the act and are matters properly connected therewith.</p> <p>8. While section 19 of the Declaration of Eights of the State Constitution and the 13th and 14th Amendments to the Federal Constitution may be effective without further legislation on the subjects covered by the organic provisions, such sections are not intended to interfere with the enactment and enforcement of State laws where substantial private rights are not arbitrarily invaded.</p> <p>9. The organic provisions relating to “involuntary servitude” are not applicable where a person has been convicted of a crime.</p> <p>10. In criminal prosecutions the organic guaranties of due process of law are satisfied where sufficient notice of the accusation and an adequate opportunity to defend are afforded in a proper tribunal on a charge made uner a valid statute.</p> <p>11. Sections 10, 11 and 12 of Chapter 6537 do not invade the organic rights of due process and equal protection of the laws, nor unlawfully impose involuntary servitude.</p>

<p>Appealed from Circuit Court for Columbia County; M. F. Horne, Judge.</p>

<p>Under an information charging the robbery from the person of a ten dollar bill, a. five dollar bill, a one dollar bill and a silver dollar, all of the value of seventeen dollars, it is not sufficient to prove merely that “seventeen dollars” was taken, proof should be made of at least one of the alleged items making up the total.</p>

<p>1. A deed of land made by a husband directly to his wife for an alleged past, and inadequate consideration, when the husband is greatly indebted, is void as to a creditor of husband.</p> <p>2. When a sale of a tract of land has been made under an execution issued upon a judgment against the owner, who had not lived on the land for more than three yéars, and who took no steps to have the land exempted as a homestead until more than a year after the sale under the execution and a sheriff’s deed has been executed to the judgment creditor in pursuance of the sale, in an action of ejectment i brought by the judgment creditor for the recovery of the possession of the land, the judgment debtor may not claim a homestead in the land sold under the creditor’s execution.</p>

<p>1. An office is vacant where there is no encumbent of it who is authorized to perform the functions of the office.</p> <p>2. Under the Constitution of this State the authority of an encumbent of an office is not affected by his physical or mental inability to perform the functions of the office.</p> <p>3. Under the Constitution of this State long continued illness of a Circuit Judge rendering him unable to devote his personal attention to the duties of his office; does not create a vacancy in the office so as to authorize an executive appointment thereto.</p>

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

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

<p>Death by Wrongful Act of Illegitimate Minor Child— Mother Alone Has Right to Sue and Recover Damage For.</p> <p>Under our statutes the mother of i vn illegitimate minor child, and the mother alone, has the fight to sue for and recover damages for the death of such child by the wrongful act, negligence, carelessness or default of another.</p>

<p>1. Oral testimony as to a matter not inconsistent with a written contract on the subject may be admissible.</p> <p>2. Where a finding has substantial support in conflicting evidence, and no material and prejudicial errors of law or procedure appear, the finding will not be disturbed by the appellate co’wt.</p>

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

<p>1. When the sufficiency of an alternative writ of mandamus has been attacked by demurrer and such demurrer, at the hearing thereon, has been overruled, such ruling is in effect that, if the allegations in the writ are true, the relators are entitled to the relief sought.</p> <p>2. Where it plainly appears from the return to the writ in a mandamus proceeding that the respondent had afforded to it ample opportunity of raising the defensive matters set up therein by which such respondent seeks to justify the course it has pursued before the Railroad Commissioners and that such defenses as a matter of fact were so raised and decided adversely to the respondent, as the statute makes orders of the Railroad Commissioners prima facie reasonable and just, a respondent corporation which still failed and refused to comply with the orders in question must be held in pursuing such course to have acted at its peril. Unless the return clearly shows that such orders were arbitrary,, unreasonable and unjust, a demurrer interposed thereto will be sustained.</p> <p>3. The right of third persons not parties to the action to inter-plead in proceedings in mandamus rests wholly upon statute, no such rights existing at common law, and, in the absence of a statute so authorizing, such third persons cannot be permitted to intervene.</p>

<p>1. The provision of Article XXX of the Constitution that a local option “election shall be conducted in the manner prescribed by law for holding general elections,” does not necessarily require that the county canvassing board in a local option election shall be the same as in a general election; and the legislature did not clearly and palpably exceed its power in providing that the precinct returns in local option elections shall be canvassed by the county commissioners.</p> <p>2. It does not clearly appear beyond a reasonable doubt that because of the provisions of Article XIX of the Constitution, the legislature had no power to designate the county commissioners to be the county canvassing board in local option elections.</p> <p>3. The provision of section 1209 Gen. Stats, that “at least thirty days’ notice” of a local option election shall be published “in one newspaper in each and every town” in the county where such election is held, does not require that the publication shall be once each week during the thirty days preceding the election.</p>

<p>Appealed from Circuit Court for Alachua County; J. T. Wills, Judge.</p>

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

<p>Appealed from Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>Where under the allegations of a bill of complaint in equity for reformation of a written instrument or other proper relief may be shown by appropriate evidence, interlocutory orders overruling a demurrer and granting and refusing to dissolve an ancillary injunction may not be reversed on appeal.</p>

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

Under the Constitution of this State a Circuit Judge is not subject to suspension or removal from office by the Governor. STATE OF FLORIDA, EXECUTIVE CHAMBER, Tallahassee, May 18th, 1914.

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

<p>Writ of Error to Circuit Court for Washington County; I). J. Jones, Judge.</p>

<p>1. The legislative intent is the essence and. vital force of a statutory enactment.</p> <p>2. The object of Chapters 6469 and 6470, Acts of 1913, is to prevent corruption, fraud and deception of all kinds in primary elections, and the statutes shall be enforced to accomplish the legislative purpose.</p> <p>3. If a person in good faith actually and ip. fact first announces or becomes a candidate for a county office at a time which is less than 25 days prior to the date of the primary election, he must, under Section 26 of Chapter 6469 qualify within the prescribed time and is required to file all the statements and to do all things prescribed for such a candidate to do after he in fact becomes a candidate; but he is not required to file statements of expenses at a time when he was not in fact a candidate.</p>

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

<p>Appealed from Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>1. The usage or custom that may have the force and effect of law or of an implied contract or of a constructive delivery of goods, must be clearly and definitely proven; and where the evidence is uncertain and also contradictory, the usage or custom is not established.</p> <p>2. In this action to recover the value of barrels of rosin placed at steamboat landing on a river where there was no warehouse or agent, or wharf and carried away by an unusual freshet, brought upon the ground that the steamboat company, disregarding its constant and habitual custom and usage, negligently failed to stop and take the rosin on the first trip of the boat past the landing, the evidence is held not to show a breach of an implied contract or of a legal duty or actionable negligence so as to make the defendant liable as alleged in not taking the barrels of rosin as freight on the first trip of the boat past the river bank where the rosin was placed by the plaintiff at an unsafe point without giving notice to the defendant.</p> <p>Shackleford, C. J., and Cockrell, J., dissent.</p>