Volume 69 — Florida Reports

<p>Where the note does not provide for attorney fees, and the express covenants of the mortgage, given to secure the payment of the note, provide for attorney fees only when collection is “by foreclosure,” a statement in the defeasance clause of the mortgage that the lien will be void upon payment of the note with interest and attorney fees incurred in collecting “by foreclosure or otherwise,” does not require the payment of attorney fees when the collection is not “by foreclosure,” though the collection is made by an attorney.</p>

<p>1. Where the evidence would not legally sustain a verdict for the plaintiff, and the verdict and judgment for the defendant are proper, errors, if any, committed by the trial court in the progress of the cause, that could' not reasonably have injuriously affected the substantial rights of the plaintiffs, will not justify a reversal of the judgment.</p> <p>2. Where the evidence required a verdict for the defendant, and no material or prejudicial errors of law ór procedure appear, the plaintiff’s motion for a new trial was properly denied.</p>

<p>Appeal from Circuit Court for Leon County; D. J. Jones, Judge. ■</p>

<p>In an action for goods sold and delivered, where the evidence as to the amount of the goods ordered is conflicting, and it clearly appears that when received the goods were placed on the vendee’s shelves by mistake and without authority, and that when the amount of the shipment was discovered, all the goods were promptly returned because they were in excess of the order, there being no acceptance of the goods or any act of the vendee inconsistent with the ownership of the vendor, a verdict for the defendant vendee will not be disturbed, no harmful errors of law or procedure appearing.</p>

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

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

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

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

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

A. Simmons, Judge. STATEMENT. On the 12th day of March, 1913, Jacksonville Development Company, a Corporation, as Complainant, filed its bill in chancery against Mary B. Vance and her husband, S'.

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

<p>Where the original mortgagor is not made a party in a suit to enforce a mortgage lien, and there is no allegation that the original mortgagor had title to the property, and the assumption of the mortgage debt by the purchaser from the mortgagor is not alleged, a personal decree against such purchaser for thd debt is not warranted.</p>

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

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

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

<p>Appeal from Circuit Court for St. Johns County; Geó. Couper Gibbs, Judge.</p>

<p>1. While an execution at law cannot be levied upon equitable property of the debtor, yet such equitable property may; in equity be subjected to the debtor’s judgment debts.</p> <p>2. A discharge of a debtor in bankruptcy is from personal liability.</p> <p>8. Bankruptcy proceedings do not discharge or abrogate vested equitable liens of judgment creditors, acquired more than four months before bankruptcy proceedings, upon property which the debtor had and fraudulently kept from his creditors in the bankruptcy proceedings.</p> <p>4. The bankruptcy law is not designed to aid in a fraud, or to prevent equitable relief to creditors against fraudulent acts of a debtor; and where the creditors seeking such equitable relief by reason of previously acquired equitable liens, do not purposely ignore or violate the terms or the spirit of the bankruptcy law, and no unlawful preference among creditors is sought by those asking such equitable relief, it may be afforded in appropriate proceedings.</p> <p>5. The right given a trustee in bankruptcy under the 1910' amendment of the bankruptcy law is not exclusive of the creditor.</p> <p>6. A court of equity may decree an equitable lien upon property of a bankrupt even though the fund should be administered by the bankruptcy court.</p>

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

<p>1. Where the trial court has refused to grant a new trial in a case, the appellate court will not reverse the judgment or grant a new trial 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 substantial rights of the complaining party.</p> <p>2. A judgment will not be reversed or a new trial granted by the appelate court on the ground that the verdict is not sustained by the evidence where the trial court has refused a new trial on that ground, unless it appears that upon the whole evidence the verdict is clearly wrong, or not in accord with the law and the evidence, or that the jury were not governed by the evidence in making their finding.</p> <p>8. The trial court has authority to permit plaintiff to withdraw a motion for a now trial.</p>

<p>1. The fact that no record of the establishment of a school sub-district is in the office of the County Superintendent of Public Instruction, is not material in proceedings to validate bonds issued by the school sub-district or special tax school district under the law, when the establishment in fact of such school district, and its definite boundaries appear.</p> <p>2. Under Chapter 6542 Acts of 1913, the authority therein given is properly conferred upon the “County Board of Public Instruction” as recognized by the constitution.</p> <p>3. Under the provisions of Chapter 6542 Acts of 1913, the bonds to be issued thereunder by a special tax school district may be validated in the manner provided for in Chapter 6237 Laws of Florida.</p>

<p>Even though the terms of a contract for the sale of patent rights may be regarded as reasonable and proper /for the protection of the purchaser and not violative of public policy, yet if no breach warranting an injunction and accounting is shown, such equitable relief is properly denied.</p>

A. Simmons, Judge. STATEMENT. Appeal from the Court for Duval County, Fourth Judicial Circuit. Samuel S. Goldsberry filed his bill to foreclose a mortgage in the Circuit Court for Duval County against Charles D. Mills and Etta F. Mills, his wife, and the American Securities Company, a corporation organized under the laws of Florida.

<p>1. Expense incurred in obtaining an abstract of the title to mortgaged property from the date of the mortgage to the beginning of a foreclosure proceeding to enforce the lien of the mortgage is a proper item of expense to be allowed the mortgagee or his assigns in such proceeding where the mortgage provides for the payment of attorneys fees and all expenses the mortgagee may reasonably incur or pay because of the failure of the mortgagor or his assigns to comply with the agreements and covenants contained in the mortgage.</p> <p>2. In appellate proceedings the burden is upon the appellant to make the error apparent, the presumption being in favor of the Chancellor’s decree.</p>

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

<p>1. In an action at law where one of the counts of the declaration is based upon a special contract, where the testimony clearly establishes the fact that such contract was never carried out or completed, but that the same was abandoned by agreement between the plaintiff and the defendants and another contract made, there can be no recovery under such count.</p> <p>2. In an action at law where the plaintiff seeks to recover for services rendered as an architect, in the absence of any evidence as to the value of such services, the plaintiff is not entitled to recover.</p>

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

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

<p>A judgment upon a second verdict for the plaintiff will not be reversed where the evidence is sufficient in law to sustain the verdict, and technical errors, if any, in the proceedings do not appear to have been harmful to the defendant, even though ,:he second verdict exceeds the first in amount, where the award is not so palpably excessive as to justify interference by an appellate court.</p>

<p>1. A failure to comply strictly with those provisions of tax laws which are intended for the guidance of officers in the conduct of business devolved upon them, designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested'cannot be injuriously affected, will not usually render the proceedings void; but where the requisites prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and a disregard of them might and generally would injuriously affect his rights, they cannot be disregarded, and failure to comply with them will render the proceeding invalid.</p> <p>2. The provision of the statute requiring a publication in a newspaper, “said newspaper to be selected * * * in February,” is not mandatory as to the time of the selection, but the duty continues till properly performed.</p> <p>3. The provision of Chapter 5596, Acts of 1907, that notice of tax sales shall be published “once each week for five consecutive weeks,” does not in view of the terms, purpose and policy of the statute and the practical conditions to be met, require a publication covering a period of thirty-five days before the s.ale day. This statute requires a construction different from Chapter 4129, Acts of 1893, construed in Myakka v. Edwards, decided at this term (68 Fla,., 372-382).</p>

<p>An amendment stating that a complaint sues technically in a representative capacity and not individually in the same cause of action does not make a new suit or cause of action particularly when the complainant is the sole party in interest and the suit is brought for her sole benefit.</p>

<p>1. Mandamus will issue only where a clear right to the writ is shown.</p> <p>2. The orders of the Railroad Commissioners directing the establishment of stations by railroad companies and Common Carriers in the State will be -accorded the force and weight required by the statute, but if it appears that such orders were made indisputably contrary to the evidence or without any evidence the character of prima facie reasonableness will be destroyed thereby and the order will be deemed to be arbitrary and therefore made without the consideration the statute requires to be given such matters by the Railroad Commissioners.</p> <p>3. Whether a legislative exercise of the police powers including the regulation of railroads is reasonable is a judicial question and even though the law gives to administrative action the effect of prima facie reasonableness the courts may inquire into the reasonableness of the action and if it clearly appears that the administrative action complained of is an abuse of discretion and is not in fact reasonable such ^ action will not be enforced.</p> <p>4. Unreasonable regulations are not within the authority conferred by law upon the Railroad Commissioners and when it appears by the pleadings or the evidence in a case that an order or regulation is unreasonable or unjust with reference to all the substantial interests affected by it or violative of constitutional provisions for the protection of private property rights such regulations will not be enforced by the courts.</p> <p>5. The duty of a railroad corporation to provide fit and suitable roadbeds and tracks and rolling stock may be distinguished from the duty to provide station and depot agencies along its line of road. The one is an essentially higher and more important duty than the other. In the latter case the fact that the performance of the duty will be unremuneraany evidence the character of prvtna facie reasonableness of the order requiring it to be performed.</p> <p>6. Where in an application by the Railroad Commissioners for a writ of mandamus to compel a railroad corporation to establish and maintain an agency station at a certain point on the line of its railroad, it appears in the return of the respondent which was demurred to by the relators, that the railroad is operated at a loss, that its stockholders receive no dividends, that there is no sinking fund, that its income is not sufficient to pay the interest which it is obligated to pay on its bonds, that the present value of the railroad properties is greater than its bonded indebtedness and par value of its capital stock, and that to establish the agency would . entail further financial loss on the company, and that the amplest accommodation for the business the road receives exists at the point where the order directs the station to be established and maintained, the order of the Railroad Commissioners will be deemed to be unreasonable and the demurrer to the return will be overruled.</p> <p>7. Where in an application by the Railroad Commissioners for a writ of mandamus to compel a railroad corporation to establish and maintain an agency station at a certain point on its line of railroad, it appears in the return of the respondent which was demurred to by the relators that no testimony was taken by the Railroad Commissioners to show any necessity for the establishment of such agency, that no witnesses were examined, that there was no evidence before the Commissioners of any delay on the part of the respondent in handling, receiving or delivering freight at the said point, and that the order was made without evidence as to the necessity for establishing such an agency, it will be deemed that such an order was not made in due course of law and is subjert to be set aside.</p>

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

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

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

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

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

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

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

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

<p>1. Where one under arrest hands his shoe to the officer in charge, who places the shoe in a track near the scene of the homicide, the latter may testify that the shoe fitted the track exactly, even though he did not warn the former agains incriminating evidence.</p> <p>2. A single exception to three refused instructions will not avail, where one of the instructions is argumentative and the others covered by the general charge.</p> <p>3. The.evidence sustains the verdict.</p>

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

<p>In a prosecution for murder alleged to liave been committed from a premeditated design to effect tlie death of the decedent, where there is substantial evidence from which the jury may fairly find the requisite premeditated design as alleged, a verdict of murder in the first degree will not be disturbed, no errors of law being asserted.</p>

<p>1. An equity cause may upon application and without notice be dismissed by the chancellor in open court, for failure to file a ■ replication as required by Chancery Buie 67.</p> <p>2. Where, in a suit against a corporation, a stockholder is duly admitted as a party defendant to defend for the corporation, and presents for the corporation an answer tendering an issue going to the whole merits of the cause, and the complainant does not except thereto or file a replication as required by the rules, the entire cause may be dismissed on the motion of such stockholder defendant.</p>

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

<p>1. Where the notice of the application for. a tax deed is not mailed to the owner of the land, or to the person last paying the taxes, but to the supposed agents of such owner, and the evidence as to the agency wholly fails, the prima facies of the tax title fails.</p> <p>2. Where the holder of a tax title does not' maintain actual possession of the land for the full period, the short statute of limitations in favor of tax titles, does not apply.</p>

<p>Where a sale of land is made subsequent to a duly executed and recorded lease of the lands and others for turpentine purposes, and in such lease it is expressly stipulated that of the lands covered by the lease, 2,000 acres shall be released annually, the purchasers of the land cannot require the lessee to release annually 2,000 acres of the lands that are included in the conveyance to them when the terms of the prior lease have reference to a greater acreage included in the lease.</p>

<p>X. Where it appears in a suit to enforce the lien of a mortgage that the interests of a minor are involved, the court should protect the interests of such minor whether his claim or defense be properly pleaded or not, and for this purpose the court should look to the record in all its parts and of its own motion give to such minor the benefit of all objections and exceptions that may appear, or require the representattive of such minor to make such exceptions or file such pleadings as may be necessary to fully protect such rights and interests as the minor may appear to have.</p> <p>2. Where it is made to appear to the court, although informally, that one of the parties defendant in a cause pending in court is a minor, the court should appoint a guardian ad litem of such minor and direct him to file such pleadings as may be necessary to protect and guard such minor’s interests in the suit.</p>

<p>Appeal from the Circuit Court for Citrus County; W. S. Bullock, Judge.</p> <p>Cockrell, J., dissents.</p>

<p>An order of County Commissioners for a special levy to build a court house or jail is fatally defective, unless the majority of the board determine that such building is necessary. Necessity alone justifies the extraordinary levy.</p>

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

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

<p>Where a donation is made to a Town Council of one-third the cost of a road extension, provided the town will have the road paved, and there is nothing to indicate that the donor intended a division of his gift among the abutting property owners who under the law pay two-thirds and the town one-third of the cost of the paving, the donation is held to be to the town as an entity.</p>

<p>1. In an action againt a municipal corporation for negligent injuries, tbe gist of tbe action is the 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 of 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. On an assignment of error based upon the overruling of a demurrer to the declaration, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, and no other grounds will be considered, unless there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.</p> <p>3. Where in an action for damages the declaration when fairly considered as an entirety states facts from which it may reasonably be inferred that the negligence alleged was a proximate cause of the stated injury, a demurrer addressed to that point is properly overruled.</p> <p>4. Where a single assignment attacks the ruling of the Circuit Judge sustaining a demurrer to three separate pleas, an appellate court need go no further than to determine that the demurrer was properly sustained to one of such pleas; as the assignment must fail, unless all of such pleas are good.</p> <p>5. Where the negligence of a municipality has contributed as the proximate cause of the injury complained of, such municipality cannot avoid liability by claiming that such injury was caused by an act of God. It is sufficient if the negligence of the municipality is an efficient cause, without which the injury would not have resulted, and that such other cause is not attributable to the person injured.</p> <p>6. In an action against a municipality to recover damages alleged to have been occasioned by the falling of a tower owned by such municipality, which had been permitted to become and remain in a decayed and unsafe condition, no error is committed in refusing to permit a witness for the defendant to give his opinion as to whether or not the wind was sufficient in force to have blown such tower down, if the tower had been sound, especially when such witness had not qualified either as an expert or skilled witness.</p> <p>7. Evidence is properly excluded that has no relevancy to any issue in the cause.</p> <p>8. Instructions should be confined to the issues made by the pleadings, and are properly refused when they do not state correct propositions of law as applicable to the facts of the case.</p> <p>9. When a jury has rendered its decision through its verdict, it should be regarded as settling all controverted questions of fact submitted for determination, unless it clearly appears that the jurors in arriving at such verdict must have been improperly influenced by considerations outside the evidence.</p> <p>10. In passing upon an assignment based upon the ruling of the trial court in denying a motion for a new trial, which questions the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it . may think the jury ought to have done, or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict from the evidence adduced. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.</p>

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

<p>Appeal from Court of Record for Escambia County; Kirke Monroe, Judge.</p> <p>Cockrell, J., dissenting.</p>

<p>Writ of Error to Criminal Court of Record for Hills-borough County; Lee J. Gibson, Judge.</p>

<p>1. The statute and rule do not authorize the clerk to make a decree pro confesso and file it among the papers in the cause. But the authority is “to enter an order (as of course) in the order book that the bill be taken pro confesso.”</p> <p>2. A decree pro confesso made in any manner substantially variant from the statutory authority is ineffectual..</p> <p>3. A description of lands on an assessment roll, so faulty as not to warn the owner of the charge upon the land, or to advise possible purchasers what land is to be sold, will invalidate the assessment.</p> <p>4. Where the statute provides that in municipal assessments ' of real property it “shall be listed and assessed according to lots and blocks of the several tracts or plats of land within the cits'-” and the description on the tax roll is “as recorded in Book X, page 328, Monroe County Records, Pt. Sub-division Lot 1, Square 3, Wall Street,” suck entry is not a compliance with the statute, and of itself describes no land, and when such attempted description is not made certain by a consideration of the entire tax roll, the assessment is fatally defective.</p>

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

<p>Writ of error to Circuit Court, Clay County; Geo. Coup-er Gibbs, Judge.</p>

<p>Writ of Error to Criminal Court of Record for Orange County; T. Picton Warlow, Judge.</p>

<p>Writ of Error to Circuit Court for Holmes County; D. J. Jones, Judge.</p> <p>Taylor, C. J., and Ellis, J., dissent.</p>

<p>1. Under an indictment charging three men for the murder of A, the evidence being ■ circumstantial, A’s wife may testify that a man came to their home at night, representing himself as a deputy sheriff and that two other deputy sheriffs , were, with him, thereby inducing her husband to go with him.</p> <p>2. A single assignment of error addressed to the refusal of several separate instructions will fall if one of the instructions was properly refused.</p> <p>3. When several defendants are jointly indicted, an instruction is properly refused that calls for the acquittal of all, if a juror entertains a doubt as to one only.</p> <p>4. If evidence of an alibi be offered as to one only of several defendants, an instruction giving all the benefit of an alibi is properly refused.</p> <p>5. The evidence sustains the verdict.</p>

Johns County; Geo. Couper Gibbs, Judge. STATEMENT. The appellees filed their bill in equity in the Circuit Court of St. Johns County against the appellants alleging and praying therein as follows: “Your orators, Mary B. Conner, Caroline C. Chapman, Sallie E. Conner, Julia C. Conner, Mary E. Conner, Nannie C. Young, Arthur R. Young, Caroline Conner and Henry W. Conner, all of the City of Charleston, State of South Carolina, bring this their Bill of complaint against Harry M.…

<p>Allegata and Próbata 'Must Agree.</p> <p>In order for a party to recover in any action, ,his probata must correspond with and sustain his allegata, and. when he alleges that he was employed on the promise of a per -centagé commission to find'a purchaser, for stock in which the defendant promissor was interested, and that he did -find a* purchaser for a particular fifty shares of stock in which the defendant was interested, such allegation is not sustained by proof showing that he found a purchasér for fifty shares of stock owned wholly by other parties, and in which the defendant did not own any interest whatsoever.</p>

<p>1. In a prosecution for tbe crime of being a common liquor dealer, wbere a State witness had testified that she, in company with an officer, on a certain night, had gone to a certain house where they found the defendant and other negroes and also one hundred bottles of whiskey in a barrel, quarts, pints and half pints, and that the witness took two of such bottles away with her, one of which she produced and stated that it had been in her possession ever since she carried it away with her and kept by her unopened and locked up, no error was committed in admitting in evidence such bottle, marked “Cream of Kentucky Whiskey,” with the Government Seal on it, over the objection of the defendant that it had not been shown that such bottle* contained whiskey or intoxicating liquor.</p> <p>2. The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in such a matter, either in receiving or rejecting evidence, will not be interfered with by an appellate court, unless an abuse of such discretion is clearly made to appear.</p> <p>3. The mere fact that proffered evidence is not full and complete within itself but forms only one link in the chain, so that it would have to be supplemented by other evidence in order to avail the party offering it, may not render such evidence incompetent or inadmissible.</p> <p>4. The record of a prior conviction of the defendant in the County Judge’s Court for the illegal sale of liquors, which shows that the defendant pleaded guilty to such charge, is properly admitted in evidence against the defendant in a prosecution for the crime of being a common liquor dealer.</p> <p>5. In a prosecution for the crime of being a common liquor dealer, no error is committed in refusing to permit a witness for the defendant to testify as to whether or not he had seen the defendant in the community subsequent to his conviction in the County Judge’s Court for the illegal sale of liquors.</p> <p>6. In a prosecution for the crime of being a common liquor dealer, it is error to give the following charge to the jury: “The court charges you that under the laws of the State of Florida a sale of intoxicating liquors, wines or beer contrary to the Laws of the State of Florida, may be proved by circumstantial as well as direct evidence and that the law of the State of Florida provides that when intoxicating liquors, wines or beer is found in any building, booth, tent or place in unreasonable quantities, that is quantities that would not be considered in reasonable amount for private use, that the finding of such intoxicating liquors, wines or beers in such unreasonable amount and quantity is prima facie evidence of the selling of liquors contrary t'o the law,” as the same is not in accordance with Section 3561 of the General Statutes of the State of Florida, upon which statute such charge was obviously based, and, where the evidence is conflicting upon material points, the giving thereof constitutes reversible error.</p>

<p>1. Misprisions in an indictment in writing “bulltes” for “bullets” and- “premediatted” for “premeditated” are not fatal under Gen. Stats. Section 3962, the words being correctly spelled in other portions of the typewritten indictment.</p> <p>2. A map correctly drawn to a scale representing the scene of a homicide is not rendered inadmissible because of the use of arrows to indicate the supposed direction and distance walked by the accused, there being no material difference in the testimony on this point. ■</p> <p>3. The use of an inapt word by the court in sustaining an objection to a question is held not harmful.</p> <p>ON PETITION FOR REHEARING.</p> <p>The use of a map drawn by an eye-witness to illustrate his testimony,and which accords with all the evidence does not constitute error.</p>

<p>1. Where a temporary injunction has been granted by- a Court Commissioner, without notice to the defendant, and the same is dissolved by the court, after argument by the respective counsel, and an appeal is taken from such interlocutory order, it is incumbent upon the appellant to make it clearly appear to the appellate court that there has been an abuse of judicial discretion, every presumption being in favor of the correctness of the ruling of the court below.</p> <p>2. Where application is made to dissolve a temporary injunction upon bill, answer and affidavits filed by the respective parties, the chancellor must be governed by the weight of the evidence, and unless it clearly appears that the ruling upon such motion is against the weight of the evidence it will not be reversed on appeal.</p> <p>S. Where the answer avers matters that grow out of and are connected with the transactions alleged in the bill of complaint, they may be sufficiently responsive to .make the dissolution of an injunction depend upon the weight of the evidence under the statute.</p>

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

<p>1. The purchaser cannot in general legally claim title as against the provisions of his purchase money note stating the title . to the property remains in the seller, unless he shows payment or other matter sufficient to extinguish the title of the purchaser or to transfer title to himself.</p> <p>2. In an action 'of replevin, a plea of not guilty puts in issue, not only the right of the plaintiff to the possession of the property replevied, but also the wrongful taking and detention thereof. Under such plea the defendant can give any evidence of a special matter which amounts to a defense to the plaintiff’s cause of action to show that the plaintiff is not entitled to the possession of the property replevied.</p> <p>3. Ope who executes a retain title note for the purchase price of property is in an action of replevin bound by the terms and legal consequences of the note.</p> <p>4. In an action of replevin a judgment for the plaintiff for the recovery of several mules or their value should state the value of 'each mule separately.</p>

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

<p>1. The evidence does not sustain an averment that the order of the Railroad Commissioners sought to be enforced, by mandamus was made arbitrarily and without any evidence to support it.</p> <p>2. It is incumbent upon the carrier to clearly show by convincing evidence that the service required in the entire traffic to which an order of the Railroad Commission applies would under the order be rendered without just compensation, by showing the cost of respondent’s entire intra-state service, to which the order applies, the receipts therefrom, the value of the property properly apportioned to and devoted to such intra-state traffic, and the practical effect of applying the order.</p> <p>3. Where a respondent railroad company avers the illegality of an order of the Railroad Commission forbidding special charges for the transportation of passengers over river bridges and does not present evidence on which the court may adjudicate the legality of the order, the prima facie legal character of the order stands, making it enforceable by mandamus.</p>

<p>1. Where a railroad company has had ample opportunity to be heard on amendments to a rule, it cannot justly complain that the notice given of the hearing did not strictly comply with the statute.</p> <p>2. In conferring upon the Railroad Commissioners authority to make reasonable and just rates to be charged by railroad common carriers for intra-state transportation, instead of merely conferring upon the commissioners’ authority to supervise and regulate such rates as may initially be fixed by the carrier, the Legislature does not invade the constitutional right of “acquiring, possessing and protecting property," nor deprive any one of “property without-due process of law.”</p> <p>3. In making rates the commissioners do not assume the management and control of the property or business of the common carrier, but by making lawful rates they supervise and regulate the rendering of the public service “for the correction of abuses and to prevent unjust discrimination and excessive charges” as contemplated by the State Constitution.</p> <p>4. Where under the statute a rule duly promulgated by the Rail road Commission is prima facie reasonable and just, the burden is upon the carrier to clearly show by convincing evidence that the rule is invalid as applied to it.</p> <p>5. Rule 19 of the Railroad Commission Rules is a general regulation fixing the relation and apportionment of existing, rates for intra-state freight transportation over two. or more distinct railroads. The general application of such rule to the respondent’s intra-state business is not shown to unlawfully invade the respondent’s property rights. If the application of the rule proves unlawful in whole or in part, a remedy by appropriate procedure exists. It is not shown that such rule will result in unlawful discriminations with reference to or as affected by Federal regulations of interstate commerce.</p>

<p>1. A railroad company has a right to load or unload its ears where its facilities or appliances for such work are, and may not be required to establish other facilities for such purpose to accommodate each patron.</p> <p>2. A carrier which renders an. additional service to shippers or consignees in carrying freight from or to warehouses or points on private or industrial side-tracks for shipment or delivery is entitled for such service to reasonable compensation.</p> <p>3. Rule 15 of the rules governing the transportation of freight formulated and prescribed by the Railroad Commissioners prohibiting, among other things, any charge whatever by a “railroad having the line haul, for placing for unloading an empty car at any warehouse or other point on its own line or side-track, or for switching the loaded car to or from the same either for delivery or transportation” is valid upon its face, and a carrier which resists its enforcement has the burden of proving that the rule operates to deny the carrier a reasonable compensation for a special or additional service.</p> <p>4. The service of delivering freight to consignees in carloads on private or industrial sidings is a service which may not in the present state of the law be required of railroads, nor is it a service which is forbidden. If the service is of benefit to the patron of the road and involves some service and expense to the railroad, and forms no part of the transportation or haul, but is in addition thereto, the railroad is entitled to charge for the service, aud such charge may not be confined to the actual cost of it.</p>

<p>Tallahassee, Fla., April 22nd, 1915.</p> <p>Park Trammell,</p> <p>Governor of Florida,</p> <p>Tallahassee, April 21, 1915.</p> <p>To the Honorable Justices of the Supreme Court of Florida:</p> <p>Gentlemen—</p> <p>Park Trammell,</p> <p>Governor.”</p> <p>Very respectfully yours,</p> <p>R. F. Taylor,</p> <p> CtMef Justice; </p> <p>T. M. Shackleford,</p> <p>R. S. Cockrell,</p> <p>J. B. Whitfield,</p> <p>W. H. Ellis,</p> <p> Justices. </p>

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

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

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

<p>Where it does not appear that the court had jurisdiction of some of the defendants, and where a decree pro confesso is entered against the other defendants after they had answered and it does not appear that the proceedings were not ex parte, a final decree against all the defendants may be reversed on appeal.</p>

<p>1. Where the language of an indictment for murder in the first degree is clear enough to enable the jury to easily understand it, and is not so vague as to mislead the accused and embarrass her in the preparation of her defense or expose her to substantial danger of another prosecution for the same offense, the indictment, if, not otherwise defective, should not be quashed.</p> <p>2. An indictment for murder in the first degree Is not defective for failure to allege that the defendant administered to the deceased “a mortal wound” or “mortal injury” or “mortal sickness” where the language of the indictment sets up a plain, direct and certain state of facts constituting the crime from which the connection between the facts alleged as the cause of death and the death itself appears.</p> <p>3. Where the language of an indictment is sufficiently certain to enable an innocent person to prepare for trial and furnishes the accused with reasonable information of what he is called upon to answer by setting forth the constituent elements of the crime charged, it cannot be maintained that the accused is not apprised of the nature and cause of the accu-' sation against him.</p> <p>4. A member of the bar privately employed by citizens interested in the suppression of crime, may with the consent of the State Attorney and the court be permitted to participate in the prosecution of a criminal cause in the Circuit Courts of this State, as assistant to the State Attorney.</p> <p>5. Premeditation is an essential element of the crime of murder. Its existence may be inferred from the circumstances of the case. Where a woman is charged with the murder of her infant child, and the evidence tends to show that it was destroyed immediately upon its birth, evidence of the woman’s intention or desire before the birth of the child to produce an abortion is admissible as • tending to show the existence of a motive for the destruction of the infant and of a premeditated design to destroy it.</p> <p>6. A verdict will not be set aside as against the evidence where there is evidence to support it, and where it does not appear that the jury were not governed by the evidence.</p> <p>7. Where an instruction is considered in connection with other instructions upon tbe same subject, or the entire charge, and is found to be free from the defects complained of in the assignment of error, the assignment will fail.</p>

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

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

<p>. Appealed from Circuit Court for Taylor County; M. F. Horne, Judge.</p> <p>Cockrell, J., dissents.</p>

<p>1. Even a provision that conditions printed in a policy of insurance shall not be waived except by agreement endorsed on the policy may itself be waived by the company through its agents, and such waiver may be implied by law from the conduct of the agent acting within the apparent scope of his authority.</p> <p>2. A provision in a fire insurance policy that the policy, unless otherwise provided by agreement endorsed thereon shall be void if the insured shall procure other contracts of insurance on the. same property, is inserted for the benefit of the insurer and may be waived.</p> <p>3. The clause in the fire insurance policy placing a limitation upon the power of any officer, agent, or other representative of the company in the waiver of any provision or condition in the policy does not supersede the law making the principal liable for the negligent, wrongful or fraudulent act of its agent, or the law of equitable estoppel, and this clause of limitation may itself be waived by the company through its agent acting within the apparent scope of his authority.</p> <p>4. An insurance company can not make its local agent the medium through which all the benefits of a policy flow from the insured to it, and then deny that the agent has authority to represent the company when the benefits of the insured are involved.</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 tbe ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that under any rational view that may be taken of tbe statute, it is in positive conflict with some identified or designated provision of constitutional law.</p> <p>2. Section 5, Article IV of tbe Constitution relates to taxes imposed for State, county and municipal purposes, and does not apply to special assessments based upon benefits to property resulting from local improvements.</p> <p>3. There is no provision of the constitution requiring special assessments for local benefits by drainage operations, to be levied by the county commissioners; and it is within the power of the Legislature to authorize such special assessments to be made by the Board of Supervisors of an incorporated drainage district as is done by Chapter 6458 Acts of 1913.</p>

<p>Writ of error to Circuit for Suwannee County; M. F. E’orne, Judge.</p>

<p>1. Where in a trial for a felony less than capital, a jury consisting of a greater number than the statute prescribes is empanelled and sworn in chief, and a juror becomes by reason of illness incapacitated to serve, it was not error in the court to declare a mistrial and proceed de novo.</p> <p>2. Where an instruction is given by the court favorable to the accused, the latter has no ground of complaint.</p> <p>3. On a new trial obtained by the defendant upon an indictment charging murder in the first degree, where in the first trial the defendant was found guilty of murder in the second degree, the court should at the beginning of the second trial instruct the jury that they must confine their inquiries to the offense of murder in the second degree, and to such lower grades of offense as may be legally included therein.</p> <p>4. Evidence examined and found sufficient to support the ver-' diet of murder in the second degree.</p>

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

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

<p>In a suit in equity to restrain tbe sale of lands levied on under an execution, the plaintiff in execution is a necessary party defendant and the sheriff of the county is not a necessary and propably not even a proper, party defendant, and a restraining order granted in such case by a court commissioner, where only the Sheriff is made a party defendant, is properly dissolved by the Circuit Judge on motion of such defendant.</p>

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

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

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

<p>Criminal Law — Larceny—Evidence.</p> <p>1. Where the evidence shows that the defendants ran down and caught a living cow, the property of another, on her range in the woods, and killed her by cutting her throat, and stripped off her hide, and sold such hide to a dealer in the city, leavi ing her entire carcass in the woods where she was killed, i, Held: That this constituted larceny of such cow.</p> <p>2. Where a witness testifies fully as to the physical signs, tracks, etc., around and about the scene of a crime, it is not improper to permit such signs, tracks, etc., so found to be illustrated, by pantomine of the conclusions carried to the mind by such silent evidence surrounding the scene of the crime.</p> <p>3. Wíiere a witness describes fully the visible signs, tracks, &e., around and about the scene of a crime, it is not error to permit him to convert into living words the story told by the silent evidences deduced from such signs, tracks, &c.</p>

<p>1. The allegations of a declaration which are not denied by plea are admitted to be true.</p> <p>2. Requested instructions which are not applicable to thfe evidence are properly refused.</p> <p>3. An endorser, guarantor or surety upon, a promissory note is not relieved of his liability thereon by the act of the payee who merely grants to the maker an indulgence in the matter of the extension of time for the payment of the note beyond ' maturity, which does not for the time being present any legal obstacle to the enforcement by the payee of the original obligation against the maker.</p> <p>4. Where there is a conflict in the evidence on material matters a new trial will not be granted on account of such conflict where there is evidence to support the verdict.</p>

<p> To the Honorable Justices of the Supreme Court of Florida: </p> <p>Gentlemen—</p> <p>Park Trammell,</p> <p>Governor.</p> <p> Be It Enacted hy the Legislature of the State of Florida: </p> <p>Sec. 2. The Fourth Judicial Circuit of the State of Florida shall be composed of the Counties of St. Johns, Clay and Putnam.</p> <p>Sec. 3. The Eighth Judicial Circuit of the State of Florida shall be composed of the Counties of Alachua, Bradford, Levy and Baker.</p> <p>STATE OF FLORIDA, [ Ofiiice of Secretary of State. J SS.</p> <p>Given under my hand and the Great Seal of the State of Florida, at Tallahassee, the Capital, this the nineteenth day of May, A. D. 1915.</p> <p>/SEAL) H. Clay Crawford,</p> <p>Secretary of State.</p> <p>In the Supreme Court of Florida,</p> <p>Tallahassee, Florida, May 31, 1915.</p> <p> Hon. Park M. Trammell, </p> <p> Governor of Florida. </p> <p>R. F. Taylor,</p> <p>J. B. Whitfield,</p> <p>W. H. Ellis,</p> <p>Justices of the Supreme Court of Florida.</p> <p>T. M. Shackleford,</p> <p>R. S. Cockrel-’,</p> <p>Justices of the Supreme Court of Florida.</p>

<p>1. The fact that a sheriff is a witness for the State in a criminal prosecution does not disqualify him, because of prejudice against the defendant, from executing an order of the court to summon from among the bystanders a sufficient number of qualified jurors to complete the panel for the trial of the cause. The presumption exists that under such circumstances' the sheriff legally discharged his duty, and that he did not discriminate against the defendant by selecting men to serve as jurors who were prejudiced against the defendant.</p> <p>2. Recitals of fact in a motion are not evidence on appeal of the truth of such facts, when the motion is denied by the trial court.</p> <p>3. Where in the trial of one charged with crime the sheriff of the county is a material witness for the State, and the court directs the sheriff to summon from among the bystanders persons qualified as jurors to complete the panel for the trial of the cause, and th^ defendant moves the court to issue a special venire for jurors whose names shall be drawn from the jury box to complete the panel for the trial of the case, upon the ground that the sheriff would not select from the bystanders fair and impartial jurors to try the cause, and the motion was denied by the court, and the sheriff executed said order by summoning persons from the bystanders who served as- jurors, and the record does not disclose that the persons summoned by the sheriff from the bystanders and who served as jurors were disqualified as jurors to serve in said cause; nor that the sheriff unlawfully discriminated against the defendant in summoning the bystanders to serve as jurors, Held, that no error was made to appear.</p> <p>4. Where the court improperly interposes an observation as to the propriety of a question propounded by counsel to a witness on cross-examination, but the counsel subsequently to the court’s remark pursues the subject of the cross-examination without objection, the error if any, is harmless.</p> <p>5. It is no defense on the part of one charged with crime to show merely that another person possessed the means or opportunity to commit the offense.</p>

<p>Criminal Law — Premeditated Design as Affected by Intoxication — Manslaughter.</p> <p>Í. A charge is proper that instructs the jury in effect, that premeditated design to effect the death of the person slain is an essential element to be proved beyond a reasonable doubt in the crime of murder in the first degree, and that if they find from the evidence that the defendant was too much intoxicated at the time of the killing to form or entertain such premeditated design, or if the jury entertained a reasonable doubt on that point, but found from the evidence that he would be guilty of murder in the first degree were it not for the absence of proof of such premeditated design beyond a reasonable doubt, then they should not convict him of murder in the first degree, but should find him guilty of murder in the second degree.</p> <p>2. The only real substantial distinction in our statute between murder in the first degree and second degree is that in the first degree the killing must be done with a premeditated design to effect death, and in the second degree such premeditated design need not appear.</p> <p>8. Manslaughter is not a degree of murder, but within the purview of our statute requiring the jury to ascertain and express in and by their verdict the degree of unlawful homicide of which from the proofs they find the defendant to be guilty, it is a degree or grade of unlawful homicide.</p>

<p>State of Florida, Executive Chamber,</p> <p>Tallahassee, May 31, 1915.</p> <p> To the Honorable Justices of the Supreme Court of Florida. </p> <p>Gentlemen—</p> <p>Park Trammell, Governor of Florida.</p> <p>Be It Unacted by the Legislature of the State of Florida:</p> <p>Section 2. The Fourth Judicial Circuit of the State of Florida shall be composed of the Counties of St. Johns. Clay and Putnam.</p> <p>State op Florida 1 l SS. Office Secretary of State J</p> <p>Given under my hand and the Great Seal of the State of Florida, at Tallahassee, the Capital, this the thirty-first day of May, A. D. 1915.</p> <p>(SEAL) , H. Clay Crawford, Secretary of State.</p> <p>Tallahassee, Florida, June 2nd, 1915.</p> <p> Parle Trammell, </p> <p> Governor of Florida: </p> <p>R. F. Taylor,</p> <p>T. M. Shackleford,</p> <p>R. S. Cockrell,</p> <p>W. H. Ellis,</p> <p>' Justices of the Supreme Court of Florida.</p>

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

<p>1. Tlie failure of the court to charge upon circumstantial evidence is not error, especially when the State relies upon direct evidence.</p> <p>2. Premeditation sufficient appears in the evidence.</p> <p>3. Errors, not assigned, may not be complained of.</p>

<p>1. An application for a continuance of a cause is addressed to the sound discretion of the court, and the action of the trial court thereon will not be reversed unless there has been a palpable abuse of that discretion to the injury of the accused.</p> <p>2. Evidence examined and found sufficient to support the verdict.</p>

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

<p>1. An indictment for obtaining property by false pretenses should allege specifically and clearly the ownership of the property alleged to have been obtained, to be in the person alleged to have been deceived by such pretenses, or in a person or corporation for whom the person deceived was acting in the transaction.</p> <p>2. In an indictment for obtaining property by false pretenses, an allegation of the ownership of the property obtained is one not affecting the form, but the substance of it, and an omission to allege such ownership is fatal to the indictment.</p>

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