Volume 68 — Florida Reports

<p>1. The organic declaration that “all men are equal before the law” may be regarded as a guarantee that all persons shall have equal consideration and protection of the law for the maintenance and security of the rights to which they are legally entitled.</p> <p>2. The exercise of the police power of the State necessarily involves appropriate discriminations; and the fundamental law only requires that such discriminations shall not be arbitrarily unjust or oppressive as they affect the rights of persons.</p> <p>3. The Legislature may regulate some occupations and not regulate others, when private rights secured by the Constitution are not thereby invaded and the regulations that are provided operate with substantial fairness upon practically all persons similarly situated, so that the governmental authority be not arbitrarily exercised to injure the substantial rights of or to oppress any person.</p> <p>4. Legislative authority to regulate intrastate occupations is 'continuous and is subject to unlimited division when organic provisions are not violated.</p> <p>5. Classifications of persons in legislative regulations may be on any practical substantial basis that has relation to the subject regulated and that is not purely arbitrary and essentially unjust in its operation upon the rights of persons.</p> <p>6. If the organic declaration that “all men are equal before the law” is given the force of a guarantee of equal protection of the laws, it is not violated when a legislative regulation within the police power of the State is made applicable to all persons as a class who are similarly situated and conditioned with reference to the regulation and the classification is not purely arbitrary.</p> <p>7. Chapter 6192, Acts of 1911, does not impose unusual or unreasonable restrictions upon the lawful occupation of practicing dentistry or dental surgery or prescribe arbitrarily unreasonable conditions upon the right 'to engage in such occupation so as to invade private rights secured by the constitution.</p> <p>8. An indictment which charges that the accused “had not at the time he performed dental work obtained and had recorded a certificate from the Florida State Board of Dental Examiners, or any of its members, as required by the laws of this State, contrary to the Statute,” is not fatally defective because it is not alleged that the accused, did not have a temporary certificate from a single member of the board.</p> <p>9. Grounds of a motion for a new trial are not self-supporting.</p> <p>10. The Legislature declares the public policy of the State in enacting a statute affecting such public policy.</p>

<p>1. ' A judgment for costs alone, though entered for the defendant after a verdict in his favor, will not support a writ of error, since such a judgment does not adjudicate the merits of the cause or dispose of the action, and is consequently not a final judgment.</p> <p>2. Where a writ of error purports to be taken to a final judgment, and no final judgment appears in the transcript of the record proper, the court should not proceed to consider the errors assigned, but should dismiss the writ of error, whether a motion be made for that purpose or not.</p>

<p>1. A verdict in ejectment which simply finds that the plaintiffs are entitled to a fee simple estate to the lands . described therein, does not find the right of possession in the plaintiffs, nor does it authorize the entry in behalf of plaintiffs of a judgment for recovery of possession of the land.</p> <p>2. A judgment in ejectment for the plaintiff is fatally defective which does not state the quantity of the estate and give a description of the land recovered as required by the statute.</p>

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

<p>1. Where the proof interposed as' a defense in an action is regu- . lated by statute, the statutory requirements should be substantially followed in making the essential- proofs.</p> <p>2. Where a statute authorizes, the use as evidence-of a certificate of an analysis of fertilizer when it is “verified by the affidavit of the State Chemist,” a certificate of analysis verified by the. affidavit of an assistant State Chemist is not a compliance with the statute.</p>

<p>Appealed from Circuit Court for Palm Beach County; James W. Perkins, Judge.</p>

<p>Writ of error to Circuit Court for Holmes county; D. J. Jones, Judge.</p>

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

<p>1. An unmarried man who is “the head of a family residing iji this State” to whom homestead exemptions have accrued, may alienate his “homestead, so exempted by deed or mortgage duly executed by himself;” if he “be without children,” he may dispose of his “homestead by will in a manner provided by law.”</p> <p>2. A married man may alienate his “homestead so exempted by deed or mortgage duly executed by himself” and Ms wife; but a married man who leaves a widow or a child surviving him cannot lawfully make a testamentary disposition of his homestead.</p> <p>3. While “the exemptions” impressed by law upon “a homestead,” “shall inure to the widow and heirs of the party entitled to such exemptions,” the homestead property may be alienated by deed or mortgage,, and may be disposed of by last will and testament, if there be no widow or child of “the holder” of the homestead.</p> <p>4. The status of a homestead which the Constitution impresses upon property under certain circumstances, does not change the nature of the estate in the property “owned by the head of a family residing in this State,” but merely exempts such property from certain liabilities to which it would otherwise be subject, and limits the owner’s inherent, power of alienation, by making such property “exempt from forced sale under process of any court,” and by making the real estate “inalienable without the joint consent of husband and wife, when that relation exists.”'</p> <p>5. The homestead exemptions impressed upon property “owned by the head of a family residing in this State,” “inure to the widow and heirs of the party entitled to such exemption,” along with the respective rights in the property which are east by law upon the widow and heirs of the head of the family who was at his death entitled to the exemption benefits.</p> <p>6. To constitute a “head of a family” there must be at least two persons who live together in the relation of one family, and one of them must be “the head” of that “family.” When the natural relation of husband and wife or parent and child, or that of being m'loeo parentis, does not exist, the relation should be one in which an established and continuing personal authority, responsibility and obligation actually rests upon one as “the head of a family” for the welfare of the others who in law should or in fact do recognize and observe a family relation to the one as “the head of a family.”</p> <p>7. That which the law forbids to be done directly cannot lawfully be done by indirection.</p> <p>8. . If an attempted eonveyeance of homestead real estate is in legal and practical effect and operation a will, it may not be effective when the owner of the homestead leaves a wife or child.</p> <p>9. Though the allegations of a bill of complaint be abstract and general and largely in the nature of asserted conclusions, yet if under the allegations a case entitling the complainant to relief as prayed can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.</p>

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

<p>Original Proceedings in Habeas Corpus.</p>

<p>Write of error to Circuit Court for Volusia County; James W. Perkins, Judge.</p>

<p>1. Tbe title of Chapter 6422 Acts of 1913, is not so defective or misleading as to render the Act unconstitutional.</p> <p>2. The authorized acts of the Comptroller and Attorney General under Chapter 6422 Laws of 1913 are administrative and not judicial.</p> <p>3. Chapter G422 Acts of 1913 contemplates an adequate hearing and does not deprive a local corporation of its property rights without due process of law, nor does it arbitrarily discriminate against a local corporation so as to deny to.it the equal protection of the laws.</p>

<p>An instruction that requires the explanation given by a party found in possession of goods recently stolen, as to how he acquired such possession, to be satisfactory, as well as reasonable, before such explanation shall shift the burden on the State of proving the falsity thereof, is erroneous. The correct rule is, that where a party is found in possession of goods recently stolen and directly gives a' reasonable and credible account of how he came into such possession-, or such an account as will raise a reasonable doubt in the minds of the jury, who are the sole judges of its reasonableness, probability and credibility, then it becomes the duty of the State to prove that.such account is false, otherwise there should be an acquittal.</p>

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

<p>Writ of error to Criminal Court of Record for Duval County; Jas. M. Peeler, Judge.</p>

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

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

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

<p>1. In treating an assignment of error based on the overruling of the motion for a new trial, an appellate court will consider only such grounds of the motion as are argued before it.</p> <p>2. When there. was evidence legally sufficient to support the verdict, the appellate court will not reverse a ruling of the trial court refusing a new trial on the ground of insufficient evidence, even though there be conflict in the evidence, un- ■ less the preponderance is such that the jury must have been improperly influenced to render the verdict. -</p> <p>3. Applications for new trial upon the ground of newly discovered evidence are looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions : (1) Tlie evidence must have been discovered since the former"trial; (2) the party must have used diligence to procure it on the former trial-; (3) it must be material" to the issue; (4) it must go to the merits of the cause, and not merely .to impeach the character of a witness;. (5) it must not be merely cumulative; (6) it must be-such as ought to produce on another trial an opposite result on the merits. The party applying" must make"' his vigilance" apparent, for if it is left even undoubtful that be knew of tbe evidence, or ' that be might, but for negligence, bave known of and produced it, be will not succeed in bis application.</p>

<p>Criminal Law — Confessions to Officers.</p> <p>Where the evidence clearly and fully shows that a defendant, while in custody and under arrest under charge of commission of the crime, after being fully warned by the officers having him in charge that whatever he might say might or would be used against him at his trial, freely and voluntarily makes inculpatory statements to such officers, and that such officers did not put him in any fear, or hold out to him any promises or hope of benefit or reward for such confessions, such confessions are admissible in evidence, and may be testified to by the officers to whom, or in whose hearing, they were made.</p>

<p>Writ of error to Cricuit Court for Holmes County; D. J. Jones, Judge. .</p>

<p>1. Testimony is not to be excluded merely because it is or may be incorrect', or may or may not be prejudicial.</p> <p>2. Technical errors, if any, in the admission of evidence or in the charges given or refused in a case will not cause a reversal of the judgment when it is apparent that no harm could have resulted thereform.</p>

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

<p>1. A decree is final in the sense of the rule, which finally ad- ' pudicates upon all the merits of the controversy, and leaves nothing further to be done, but the execution of it.</p> <p>2., When the decree decides the right to the property in contest and directs it to be delivered up by the defendant to the ' complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded.as a final one to that extent, although the bill is retained for the purpose of adjusting, by further decree, the accounts between the parties or some of them.</p> <p>3. When a final decree has been rendered in a cause, an appeal from an order rendered subsequently to such decree does not .bring the final decree before the court for reviewal, and only such assignments of error will be considered as relate to and are based upon such subsequent order, and when such assignments cannot be intelligently passed upon without reviewing the final decree, the subsequent order appealed from will be affirmed.</p>

<p>1. When evidence lias already been introduced in a prosecution for murder to the effect that the defendant had killed the deceased, who was a negro, by stabbing or cutting him in the neck, a threat made by the defendant, some two or three hours before such killing to kill some negro whom he accused of having stolen his money, is properly admitted in evidence.</p> <p>2. An exclamation or statement made by a deceased person, within two or three minutes after he had been cut, to the effect that the defendant had cut him, and that he knew that he was dying, and as a mater of fact the deceased did die within about five minutes after making such statement, is admissible in evidence either as a dying declaration or as part of the res gestae.</p> <p>3. In a prosecution for murder, no error is committed in exclude, ing the proffered testimony- of a witness as to the physical condition of the premises where the homicide occurred, on a' night subsequent to the tragedy, especially when the conditions have not been shown to be similar upon the two nights.</p> <p>4. Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible where the conditions attending the alleged occurrence and the experiment are not shown to be similar. The similarity of circumstances and conditions go to the admissibility of the evidence and must be determined by the court.</p> <p>5. Where one of the assignments of error is predicated upon the overruling of the motion for a new trial, an appellate court will consider only such grounds thereof as are argued, and, where such motion is submitted without argument, such assignment presents nothing for consideration.</p>

<p>Where an indictment was based on Section 3224 General Statutes of 1906, charging an assault with intent to- rob, which by evident mistake alleged that the victim of the assault was not armed' with a dangerous weapon, instead of alleging that the defendant was not armed with a dangerous weapon, the assault with intent ifcp rob being otherwise properly alleged, a motion in,arrest of judgment, after conviction, was properly overruled.</p>

<p>1. It is harmless error to strike a special plea when the evidence in support of the special plea is admitted under the general issue.</p> <p>2. The judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon the admission or -rejection of evidence or for errors in giving or refusing charges, or for errors in any other matter of procedure or practice, unless it shall appear to the court from a consideration of the entire cause- that such errors injuriously affect the substantial rights of the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the finding or that upon the whole evidence the verdict is clearly wrong or that the jury were not governed by the evidence in making their finding.</p>

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

<p>1. Where some of the charges given by the trial .court do not entirely accord with the evidence, but other full and proper charges were given, the judgment will not be reversed when no substantial rights could reasonably have been injuriously affected thereby.</p> <p>2. The evidence sustains the verdict and no errors of law appear in the record.</p>

<p>1. In an action against a municipal corporation for negligent injuries, tbe gist of tbe action is tbe negligence for which the corporation is liable; and it is essential to allege in the declaration ultimate facts showing the relation out of which arose the duty of the corporation to exercise appropriate care with reference to the rights of the plaintiff, and also the negligent act or omission or commission for which the corporation is responsible, that proximately caused the injury complained of, the specific ultimate fact that actually caused the injury being duly alleged so that a definite issue may be presented for trial.</p> <p>2. Where a county is authorized by law to grade and improve its streets as the public good requires, and there is no statute or valid contract providing for consequential damages incurred, a declaration claiming damages for injury to property caused by grading and improving the streets, is demurrable when the declaration contains no allegation of a diversion of the street from proper street purposes or of a physical invasion of or trespass upon the property, or of malice, negligence or unskillfulness in the use or improvement of the street for street purposes to the injury of the plaintiff.</p>

<p>Where a declaration has been held to be sufficient in law by the appellate court on an adversary hearing, it is error for the lower court to order the pleading to be reformed over the protest of the plaintiff.</p>

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

<p>Appeal from Circuit Court for Orange County; James W. Perkins, Judge.</p>

<p>Writ of error to Circuit Court for Putnam County; James T. Wills, Judge.</p>

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

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

<p>ON RE-HEARING.</p> <p>1. Where a party to a cause pending in the Supreme Court aesires to orally argue the same, he should file a memorandum for such oral argument with the Clerk of such Court at the time he flies his brief in the cause, in accordance with the provisions of Suprenie Court Rule 21, adopted the 2nd "day of March, 1905, prefixed to 51 Fla. and 37 South. Rep.</p> <p>2. Supreme Court Rule 28, adopted the 2nd day , of March, 1905, prefixed to 51 Fla. and 37 South. Rep., provides that criminal cases, and certain other cases specified therein, may- be advanced for final hearing by the court, upon its own motion or upon motion of one of the parties. Where the Supreme Court has taken up for consideration and disposition a criminal case, in accordance with such provision, a party who has failed to file any memorandum for oral argument in such cause at the time of filing his brief, in accordance with the „ provision of Supreme Court Rule 21, is not entitled as a matter of right to orally argue the caused thereby delaying the disposition of the same.</p> <p>3. A petition for a rehearing which suggests nothing that has not been fully considered by the court in making its decision should be denied.</p>

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

<p>1. It is manifestly improper for one who is a material witness for tbe State in a prosecution for murder, to have charge a§ bailiff of the jury empaneled to try the case, or to be with or have any communications with such jury. Especially is this true when such party continues to remain with such jury after he has been removed as such bailiff by the court, at the instance of the defendant om trial.</p> <p>2. An impartial jury, selected and kept free from all outside or improper influences, is necessary to ,a fair and impartial trial.</p> <p>3. In a prosecution for crime which has resulted in a conviction, where it is made to appear that the jury was not kept free from outside or improper influences, and there is a sharp conflict in the evidence upon material points, the judgment may be reversed.</p>

<p>1. Under the statute regulating the assessment of railroad property, the authorized practice of adding the values of lots and terminal facilities to the track values, becomes one of “the principles established.for State taxation,” to which the Constitution requires all municipal taxation to conform.</p> <p>2. The values of the railroad property as listed and reported to the city by the Comptroller may be changed to correspond with other assessment values in the city, but “the principles established for State taxation” should be observed as commanded by the constitution.</p> <p>3. The City of Gainesville is empowered by statute to “make its own assessments upon the property within the limits of the city, as provided by the Constitution of the State of Florida.” This provision gives authority to fix valuations provided they have a fair relation to “a just valuation of all property” subject to the tax,-and accord with “a uniform and equal rate of taxation” as required by the Constitution.</p>

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

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

<p>Writ of error to Court of Record for Escambia County; E. D. Beggs, Judge.</p>

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

<p>Writ oí error to Circuit Court for Duval County; H. B. Phillips, Eeferee.</p>

<p>On Behearing.</p> <p>1. The statute relative to amendment of pleadings should be liberally construed to facilitate the administration of justice; but it should not be so applied in any case as to nullify the operation of the statute of limitations in that case.</p> <p>2. One statute should not be applied to nullify the operation of another statute when such is not the intention of the lawmaking power. The Legislature could not have intended that the statute permitting amendments of pleadings should be used in any case to nullify the operation of the statute of limitations in that case.</p>

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

<p>Au express power given an executor to sell and convey any and all of tbe testator’s estate, real and personal, may authorize the sale by the executor of lands that are expressly devised, where such a sale accords with the apparent intent of the testator.</p>

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

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

<p>1. Previous jury service within the year is now a disqualification and not a privilege personal to the venireman.</p> <p>2. Trifling changes in physical conditions do not render photographs inadmissible..</p> <p>3. An accused, upon voluntarily becoming a witness, may be impeached by proper proof of contradictory statements previously made, not amounting to a confession of guilt, illegally obtained.</p> <p>4. If error be predicated upon the bill of exceptions, it must appear affirmatively and not by a forced inference.</p> <p>5. flie evidence warranting a verdict for murder in the first degree, a conviction of murder in the second degree will not be disturbed.</p>

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

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

<p>ON EEHEAEING.</p> <p>Where a writ of error is entered in the Chancery Order Book, instead of being recorded in the Minute Book of the Court, as expressly required by the statute, and there is no appearance in the Supreme Court by or for the Defendant in Error, the writ of error will be dismissed.</p>

<p>ON REHEARING.</p> <p>Where the decree to enforce a mortgage lien states that “the court having computed the amount due the complainant upon the note and mortgage mentioned in said bill," and rendered a decree for the amount found to be “due from the defendants to the complainant,” it will be assumed that the chancellor had the original' note before him in making the computation, there being nothing in the transcript indicating the contrary.</p>

<p>1. In the absence of misrepresentations and fraud where a fire insurance policy covers different classes of property, each of which is separately valued and is insured for a distinct amount, the contract is severable, and a breach of the contract of insurance, that relates to and directly affects only one of the classes of the property insured, does not invalidate the policy as to the other class of property, unless it appears that such was .the intention of the parties; and an intent that, the policy shall be indivisible is not shown by the facts that the premium for all the classes of property insured is payable or paid in gross, and the policy provides that the entire policy shall be void if the contract is violated in any one of several stated particulars by the insured.</p> <p>2. Where the property covered by a policy of insurance consists of different kinds of property, such as realty and personalty, or of different items, such as separate buildings or different articles of personal property, and the different kinds or articles of property aré separately valued, or are insured for separate amounts, and the premium charged is the aggregate of tlie separate premiums to be charged whether in a joint or several policies, the contract is divisible, and a breach of warrant or. condition as to one kind or class of property will not affect the insurance on the remainder of the property.</p>

<p>1. When a defendant in a suit in equity incorporates in his answer to the bill a general demurrer, whereby he attacks the equity of the bill, it is only at the final hearing of the cause that such demurrer can be insisted upon, though it should be called to the attention of the court at that time before the merits are gone into.</p> <p>2. Under the provisions of Rulé IS, Supreme Court Rules, adopted March 2, 1905, (page 11 of such rules prefixed to 51 Fla. 37 South. Rep. viii), no objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below, at or before the final hearing of the cause. Every matter, purporting to be evidence, found copied by the clerk into the record in such cause, will be presumed to have been used in evidence in the court below, unless the record affirmatively shows the contrary.</p> <p>3. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>4. While the statutory proceeding for partition may not be used as a substitute for the action of ejectment to try the title to lands, or used merely for the purpose of establishing rights or titles, yet where the dona fide object of a suit is the partition of lands between the common owners thereof, some of whom are complainants and the others are defendants, and some of the parties to the suit are in actual or constructive possession of the lands, then all controversies between the parties as to the legal title and right of possession may and should be settled by the court, as authorized by the statute, even though some of the joint owners claim adversely under a legal title, or dispute the title or right of the others to possession. And the statute authorizing this to be done in partition proceedings is not violative of the constitutional right to a jury trial.</p> <p>5. Where in a partition suit, in order to administer full and complete justice to all the parties litigant and to settle all questions raised, it becomes necessary for the court to determine whether or not any of the land to which one of the defendants asserts the ownership and possession forms a part of the lands of which partition is sought, and it appears that such question cannot be determined in the partition suit, no error is committed by the trial court in making an order staying further proceedings in the partition suit until the interest of such defendant “may be determined in such proceedings as may be properly instituted by the parties.” Where the complainant, under such order, files a bill in equity against such defendant so asserting ownership and possession, as well as the other defendant to quiet the title to the lands of which partition is sought, and no objection is interposed by either defendant to the jurisdiction of the equity court, an appellate court is warranted in assuming that such defendants consented to such proceedings in the forum of equity and will not permit such question to be raised and enquired into for the first time in the appellate court.</p> <p>6. Where a defendant has filed an answer in a partition suit wherein he relies upon adverse possession for the requisite statutory period as a defense and at a hearing upon the pleadings and testimony taken before a special master, the finding is against tlie defendant upon such issue, and an order is made staying further proceedings in such suit until the interest of another defendant to such suit as to the ownership of certain land might be determined in such other proceedings as might be properly instituted by the parties and the complainant files a bill in equity against each of the defendants to quiet the title to the lands in the partition suit, and the defendant who had already had the issue of adverse possession decided adversely to him, files a plea to such bill in which he again relies upon adverse possession and testimony is taken and the cause comes on for hearing, no error. is committed by the trial court in proceeding to render a final decree therein without giving such defendant leave to file an answer, especially since no request was made by such defendant for leave to file an answer.</p> <p>7. No error is committed by the trial court in consolidating a suit for partition and a suit to quiet title, at the final hearing and rendering a final decree, disposing of each of them, when the parties are the same and also the subject-matter.</p> <p>8. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed unless the evidence clearly shows that it was erroneous.</p>

<p>Writ of error to. Criminal Court of Record for Volusia County; T. P. Warlow, Judge.</p>

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

<p>1. Under statutory direction that terms of a Circuit Court shall begin on certain Mondays in the several Counties, the term in one county does not ipso facto end the Saturday at midnight preceding the Monday fixed for the beginning of the term in another county.</p> <p>2. It is not unlawful to impose a sentence or to perform a judicial function after midnight on Saturday and before sunrise of Sunday.</p> <p>3. Courts have a large discretion in fixing the time for hearing pending motions.</p> <p>4. The evidence justified the verdict.</p>

<p>1. The will of a head of a family who died in 1886, residing in this State on eighteen acres of land which he attempted to devise by his will, was void under the Constitution of 1868.</p> <p>2. It is incumbent upon a complainant to allege in his bill every fact clearly and definitely that is necessary to enable him to relief, and if he omits essential facts therefrom, or states such facts as show he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing.</p> <p>3. Where a deceased head of a family residing on eighteen acres of land in this State in 1886, when he died, attempted to devise his homestead to his widow, who continued to reside on it for three years, and where the widow conveyed the land to one of the two sons of the deceased husband on July 18th, 1908, who on November 24th, 190S, mortgaged the land to innocent parties without notice of facts which showed the land to have been the homestead of the deceased, a bill for partition of the said homestead land, filed by the other son of said deceased, against the mortgagees and Ms brother, for the partition of said eighteen acres of land as the alleged homestead of his father, twenty-seven years after the death of his father, -there being no previous notice to the mortgagees of such alleged homestead claim, is without equity, as the complainant is barred by his laches in asserting his alleged rights in said land.</p>

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

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

<p>Appeal from Circuit Court for Dade County; J. Em-met Wolfe, Judge.</p>

<p>1. A plea in abatement that the plaintiff foreign corporation had not complied with Chapter 5717, Acts of 1907, by filing its Charter, etc., is subject to demurrer when it does not in effect aver that the foreign corporation plaintiff was not doing business in this State when the pleaded statute was enacted.</p> <p>2. A judgment by default operates to deprive a defendant of substantial rights in contesting the liability alleged against him by the plaintiff’s declaration; and such consequences are lawful only when the defaults are duly authorized.</p> <p>3. In our law the authority to enter default judgments is regulated by statute, though rules of court may prescribe further regulation to make the statutory provisions effective; but such rules should not be inconsistent with the statutes on the subject.</p> <p>4. The statutes authorize the entry of default judgments in law actions “if the defendant shall fail to appear, * * * or shall fail to plead or demur, at the time heretofore provided” thus showing the word “plead” has reference to the plea. required by a previous section.</p> <p>5. Buies of court relative to entry of default should be construed with reference to the statutory provisions authorizing judg- ' ments by default. Thus construed the Circuit Court Rules on the subject do not authorize the entry of a default without notice for failure to file, within the terms fixed by the rules, a rejoinder to a replication that requires an answer, there being no order of the court with reference to filing the rejoinder.</p> <p>6. The court is not authorized to enter a default without notice for failure to file within the time fixed by Circuit Court Rule 20, a rejoinder to a replication that requires an answer, there being no order of the court with reference to filing the rejoinder.</p> <p>7. Tinder Chapter 5960, Acts of 1909, when attorney fees are recoverable in actions on notes, the reasonableness of the fees should be adjudged by the court.</p>

<p>Where interpleader is properly brought and the claims of all parties are fully presented by the pleadings and evidence, the court should adjudicate the entire matter involved in the cause.</p>

<p>1. One count of an indictment may by apt expressions -refer to a previous count for specifications of time and place when the data referred to are not repugnant to the count in which the reference is made and the reference cannot reasonably be harmful to the accused.</p> <p>2. In an indictment for murder an allegation that the accused did “unlawfully and from a premeditated design to effect the death of the said J., shot off and discharged at and upon the said J., thereby and by thus striking the said J. with lead,” etc., sufficiently alleges the efficient cause of the death to have been done unlawfully and from a premeditated design to effect death.</p> <p>3. The provision of Section 3178, General Statutes of 1906, that whoever aids in the commission of a felony, or is accessory • thereto, before the fact, by counseling, hiring or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon, in effect makes an accessory before the fact a principal.</p> <p>4. In view of Section 3178, General Statutes of 1906, a verdict finding both defendants guilty of murder in the second degree where one is charged as principal and the other as ac- • cessory before the fact of murder in the first degree, is not material or harmful error.</p> <p>5. Where the hill of exceptions shows the cause was submitted to the jury after the defendants had testified, and there is nothing to indicate the contrary, it will be assumed that the defendants were present when the ease was submitted to the jury.</p> <p>U. Evidence that a homicide was committed “about the last of February,” is sufficient when, taken with other testimony, it is apparent that the current year was meant.</p> <p>7. Where no reference is made to any particular witness, if the use of the word “should” instead of “may” or other permissive expression in a charge that “in considering the testimony you should consider the standpoint from which a witness testifies, his or her interest,” etc., can be prejudicial in any case, it could not reasonably have been harmful in this case.</p>

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

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

<p>Appeal from the Circuit Court of Palm Beach County; Jas. W. Perkins, Judge.</p>

<p>When an appeal with supersedeas, from an order overruling a demurrer going to the entire equity of a bill, is pending in the Supreme Court, the appellant should not be required by the Circuit Court to plead to an amended bill thereafter filed in the same cause.</p>

<p>Tbe evidence examined and found insufficient to support the verdict.</p>

<p>1. A plea to an action for fertilizers is bad if based upon a statute penalizing unlabelled fertilizers by seizure, and not making the failure to label defensive matter.</p> <p>2. Courts will not be held in error for refusing a right of action not pleaded.</p> <p>3. An analysis by the State Chemist may be made prima facie evidence, of the ingredients of a bag of fertilizer, even though the legislation fail to provide that samples be taken from various parts of the bag, the identity of the sample being safeguarded.</p> <p>4. Evidence as to the analysis of unsold fertilizer may be refused upon an issue as to the analysis of fertilizer that was sold.</p>

<p>1. One whose primary entry of public lands in the U. S. Land Office is cancelled before commutation or the full five years elapse, does not “hold under an apparently good, legal, or equitable title derived from the United States Government,” within the meaning of the Betterment Procedure Statute.</p> <p>2. The receipt of a Receiver of a U. S. Land Office made by statute prima facie evidence that title had passed means the receipt or certificate given at the final entry, and not the receipt for the registration fee required at the original entry.</p>

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

<p>Writ of error to Circuit Court for Saint Lucie County; Jas. W. Perkins, Judge.</p>

<p>A chancellor will not be held in error for decreeing partition of lands among the heirs of a common ancestor who it is conceded had title, the adverse claim of one of the heirs being that she furnished the consideration for the title that was made to her mother, when the ancestor has been dead many years and the evidence adduced to establish a resulting trust is not convincing beyond a reasonable doubt.</p>

<p>ON REHEARING.</p> <p>Where a conveyance is of the west half of a lot actually containing ten acres, but the description' and area specifically given in 'the conveyance covers only -21-2 acres, and the possession given and the occupancy had under the conveyance for many years is only of one-half of the west half of the lot embracing 21-2 acres, and the other parties during the entire time -claimed and had possession of the other 21-2 acres contained in the west'half of the lot, the claimants under the first mentioned conveyance will be confined in partition proceedings to the 21-2 acres occupied under such conveyance.</p>

<p>An order striking from a bill of complaint matters that have some proper relation to the subject matter of the litigation is erroneous.</p>

<p>Writ of Error to Circuit Court for Suwannee County; F. L. Rees, Referee.</p>

<p>The obligation of a surety company’s bond that a bank “shall well and truly keep aud preserve the funds of the city now deposited or which may hereafter be deposited with it as such depository of city funds, and shall” faithfully account for and pay over all moneys which may be deposited with it” during a stated period, covers all moneys deposited during the contemplated period and continues as to such deposits, though the time had expired during which deposits could be made under the protection of the bond.</p>

<p>The payment of interest upon a mortgage executed by a decedent may in effect dispense with, or assume a presentation of the . mortgage claim within, the statutory period, when suit- i.s brought against the heirs and personal representatives of the decedent to enforce the mortgage lien.</p>

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

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

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

<p>ON REHEARING.</p> <p>1. A Court of Equity has power to proceed in rem in a suit to quiet title or remove a cloud on title to lands in this State, upon the proper publication of an order against a non-resident defendant.</p> <p>2. Jurisdiction must be affirmatively shown by the record where the parties defendant are shown to be non-residents and constructive service is depended on for jurisdiction.</p> <p>3. The jurisdiction of the court may be attacked collaterally when it is dependent upon constructive service.</p> <p>4. The orders for publication required, by Chapter 4129, Laws of 1893, to be published once a week for four consecutive weeks if the defendant be stated to be a resident of the United States, are required to be published once a week for four weeks of seven days each, or at least twenty-eight days from the date of the first publication to the day fixed in the order for the defendant to appear.</p>

<p>A general demdrrer toa bill in equity as an entirety should not be sustained if any relief may properly be granted in accordance with the allegations and prayers. ' ■ ’ -</p>

<p>Writ of error to Circuit Court for Putnam County; James T. Wills, Judge.</p>

<p>Where an execution sale is made subject to liens with notice that purchasers would be required to give bond to indemnify the sheriff against claims of such lien holders, the sheriff should not be required to deliver the property to purchasers without bond, particularly when the lien holders are not parties to the proceeding against the sheriff.</p>

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

<p>Writ of error to Circuit Court for Leon County; John W. Malone, Judge.</p>

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

<p>Original proceedings in contempt.</p>

<p>1. In an action of ejectment, where the plaintiff introduces documentary evidence tracing his title to the land in'controversy through successive deeds back to a certain'railroad corporation, and also introduces documentary evidence showing that such land had been approved by the U. S. to another railroad corporation, and fails to 'connect his title with any title emanating from the corporation to which' such land was approved, he cannot recover.</p> <p>2. An appellate court will take judicial notice of its own opinions, and also of its own records, so far as they appertain to the case before it for consideration, but will not take judicial notice in deciding one case of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record in the case under consideration.</p> <p>3. The plaintiff in ejectment must recover upon the strength of his own title and not on the weakness of his adversary’s title.</p>

<p>Writ of error to Circuit Court for Jackson County; 1). J. Jones, Judge.</p>

<p>, Writ of error to Criminal' Court of Record for Orange County; T. P. War low, Judge.</p>

<p>It is not error to refuse leave to withdraw a plea of guilty voluntarily entered, upon an admission, by the accused of facts conclusively and fully making out the offense.</p>

<p>The evidence in this case examined and found sufficient to sustain the verdict.</p>

<p>Where a suit is irregularly brought in the name of a deceased person as sole complainant, and after decree pro confesso a real party is made sole complainant, no notice thereof being served on the defendants and they in no wise appear in the cause, the defendants not having had their day in court as to the amendment, a decree against the defendants -is erroneous.</p>

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

<p>Appeal from Circuit Court for Pinellas C.ounty; F. M. Robles, Judge.</p>

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

<p>A referee will not be held in error for granting a new trial upon a proper ground, even though such ground may not affect the party making the motion for new trial.</p>

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

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

<p>Upon an appeal from an order confirming a sale, errors assigned upon the final decree will not be considered.</p>

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

<p>Appeal from the Circuit Court for Seminole County; Jas. W. Perkins, Judge.</p>

<p>Appeal from the Circuit Court for Brevard County; Jas. W. Perkins, Judge,</p>

<p>1. Where the evidence in an action of forcible entry and detainer, tends to show a bona fide peaceful possession and a forcible ouster of the plaintiff, and there is no showing whatever that the defendant had been in possession, or that he claimed any right or interest in the land at or prior to the plaintiff’s peaceful entry, it is material error to direct a verdict for the defendant.</p> <p>2. In actions for forcible entry, title deeds may be put in evidence when the possession of a part of the land is shown, for the purpose of showing the boundaries or the extent of the possession claimed.</p>

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

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

<p>1. At common law, no right of action existed in anyone to recover damages for the death of a person. Any statutory right of action given to recover damages for the wrongful death of a person, must he instituted and maintained hy the persons and for the damages as stated in the statute conferring the right of action; and the action must be brought within the time fixed by the statute.</p> <p>2. Whenever a valid Federal regulation covers a subject within the sphere of the Federal law, it is paramount; and any and all conflicting State regulations ■ of such subject are ipso facto wholly excluded thoiefrom. Otherwise the Federal enactments would not be the Supreme law of the land, and the Federal authority would not be paramount within its sphere of operation.</p> <p>3. If the facts on which a cause of action must rest bring the cause within the operation of the iiaramount Federal Statute, it is quite immaterial how or when the real facts developed in the progress of the cause.</p> <p>■4. When the facts of a case, whether developed by the pleadings 'or by the evidence, bring the Federal law regulating interstate commerce into operation, such law is paramount and excludes all conflicting State regulations, even though the facts are commingled with other facts showing an intrastate operation at the same time by the same parties and by the means used by them.</p> <p>5. Where a decedent was fatally injured while he was employed in the interstate commerce as an employee of a “common carrier by railroad,” as a proximate result of the negligence of the carrier, the dominant Federal law controls and is exclusive, even though the decedent and the carrier were ■ also engaged in intrastate commerce.</p> <p>6. Procedure is not of substance or at all material where the facts on which the cause of action rests do not authorize the action as brought to be maintained.</p>

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

<p>1. Where there are assignments of error iu a criminal case which are not argued, but merely repeated and insisted upon in the brief of plaintiff in error, an appellate court is not required to do more than read the record carefully iu connection with such assignments, and if it discovers no plain or glaring error prejudicial to the plaintiff in error, under such assignments, the judgment will not be reversed because of such assigned errors.</p> <p>2. A statement voluntarily made by one prior to his arrest concerning a hand bag for the larceny of which he was subsequently tried, is admissible in evidence against him.</p> <p>3. The purpose of Section 1 of Chapter 5S97, of the Laws of Florida, Acts of 1909, page 45, is to permit the introduction in evidence of a bill of exceptions containing evidence adduced at a former trial, when certain evidence given at such former trial cannot be had. Such statute does not affect the rule that permits of the introduction of testimony as to confessions or admissions against interest, whether made in court or extra-judicial.</p> <p>4. A defendant in a criminal case is not entitled as of right to an instruction to the jury to return a verdict of not guilty.</p>

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

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

<p>Jurisdiction — Dependent on Amount Involved — Attorneys Fees When Part of Amount Involved.</p> <p>Where a promissory note for $400 principal, that expressly promised to pay interest at eight per cent per annum and attorneys fees for collection, was sued upon in the Circuit Court, the declaration specifically claiming such interest and attorneys fees, which, combined with the principal of such note, amounted, according to the verdict’ of the jury trying the case, to the total sum of $528 exclusive of the court costs taxed in the case: Held, That the Circuit Court rightly entertained jurisdiction in such case, the amount involved in the controversy between the parties being over $500, and this in a county where a County Court was established by law, which County Court under the Florida Constitution had exclusive jurisdiction of all suits at law in which the demand or value of the property involved shall not exceed five hundred dollars: Held, further, That attorneys fees being expressly promised in said note and specifically sued for and demanded in the declaration, became as much a part of the amount involved in the suit for the purpose of determining the jurisdiction of the court, as were the principal and interest of said note.</p>

<p>Divorce — Desertion of Husband by Wife for One Year Justifies Divorce a Yinculo.</p> <p>Where a wife files a bill against her husband for alimony and suit money, and the husband, after answering her bill, files, a cross-bill against her alleging a wilful and obstinate desertion of him by her without any just cause for more than one year continuously before the filing of his cross-bill, and upon the testimony taken the Chancellor renders a final decree dismissing the wife’s bill for alimony and granting to her husband on his cross-bill an absolute divorce a vinculo. and where upon appeal to this court we cannot adjudge that the Chancellor erred in his finding from the evidence submitted that the wife did, without just cause, wilfully desert and abandon her husband, and that such desertion continued obstinately for more than a year prior to the filing of said cross-bill, such decree will be affirmed.</p>

<p>Appeal from Circuit Court for Orange County; James W. Perkins, Judge.</p>

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

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

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

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

<p>1. A- declaration alleging in effect that the defendant master “failed to provide and maintain a safe and proper place for plaintiff employee to work, 'in that certain boards or timbers forming the floor of” the elevated structure where the plaintiff employee was directed to go in the discharge of a duty assigned to him, “were not nailed or fastened in any manner,” of which the defendant knew or should have known, and that plaintiff was injured because an unfastened board “tilted and flew up” when plaintiff stepped on it, states á cause of action.</p> <p>2. tinder allegations Showing serious personal’ injuries to the plaintiff, proper evidence as to his inability to work because of such injuries up to the time of the. trial may be admissible.</p> <p>3. It is not error to refuse to give argumentative charges, par-r tieularly where proper charges áre given. ■</p> <p>4. The authority to direct a verdict should not be so exercised as to deny to-any one the organic right tó a jury trial. If a verdict is directed for one party when under the pleadings and evidence the jury may legally find for the opposing party, the right to a jury trial secured by the Constitution may be thereby invaded.</p> <p>5. After verdict rendered the trial court may for good cause set it aside and grant a new trial in appropriate proceedings; but this judicial power and discretion to grant a new trial should not be confounded with the more limited authority to direct a verdict for one party only when a finding for the opposite party would be clearly wrong.</p> <p>6. Risks resulting from the master’s acts of negligence are not assumed by the servant; and where there is substantial evidence to sustain a verdict upon the theory that the master was negligent in directing the servant to go upon an elevated trestle where unfastened boards had to be stepped on in performing the (juty assigned, which duty was not aiding in constructing the trestle, and'that the servant was not guilty of contributory negligence, and there is nothing to indicate that the jury were not governed by the evidence, the verdict will not be disturbed by the appellate court.</p>

<p>1. A civil action for libel will lie, when there has been a false and unprivileged publication by letter or otherwise, which exposes a persomto distrust, hatred, contempt, ridicule or ob-_ loquy or which causes such person to be avoided, or which has a tendency to injure such person in his office, occupation, business or employment.</p> <p>2. Where a publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official or business relations of life, wrong and injury are presumed or implied, and such publication is actionable per se.</p> <p>3. The malicious publication in h newspaper article containing a false statement that the plaintiff “hangs around in a disreputable part of” a named city, is not privileged, and its natural and proximate consequences being to cause an injury to him in his personal, social or business relations in life, such a publication is libelous per se, making an allegation of special damages unnecessary. ’</p>

<p>Writ of error to Circuit Court for Orange County; James W. Perkins,, Judge.</p> <p>Justice Taylor took uo part in this decision.</p>

<p>1. The statutory claim proceedings permitted a stranger whose property is levied upon, are not exclusive. .</p> <p>2. Trover lies against the plaintiff in execution for an injured party whose property is seized wrongfully by the sheriff under the express direction of such plaintiff.</p> <p>3. An infant, suing by his next friend, may bring trover for the wrongful conversion of his property.</p>

<p>1. The party offering a preliminary contract in evidence,- as an aid to the construction of the subsequent contract, may not complain that it was so used.</p> <p>2. The holder of a purchase money mortgage upon lands sold to speculators, agreed to release from the mortgage such of the lands as might be unsold, at the rate of one acre for every fifty dollars paid him; such mortgagee will not be compelled to release that per centage of acreage upon the payment of an installment note by the mortgagor.</p>

<p>No. 2. Writ of Error to a Judgment of the Circuit Court for Leon County.</p>