Volume 71 — Florida Reports

<p>1. The possession of one tenant in common of lands is prima facie the possession of all the tenants holding in common, and the possession of one tenant does not become adverse to his co-tenants until the latter are actually ousted; or unless the possession of the one is exclusive of and openly hostile to his co-tenants and the character of such possession is brought home to his co-tenants by actual notice of such adverse holding; or that such possession is so open and notorious in its hostility to and exclusiveness of them as to put them on notice of its adverse character.</p> <p>2. The purchaser of land at a sheriff’s sale under an execution issued upon a judgment against one, acquires only just such interest in the land as the judgment debtor had. The rule of caveat emptor applies.</p> <p>3. The sale of a tract of land under an execution based upon a judgment against one tenant in common does not of itself operate as an ouster of the other co-tenants.</p> <p>4. Where the occupation of land by a person is as co-tenant with others his occupation of the land will be presumed to have continued as such.</p> <p>5. In a' suit for partition of lands brought by tenants out of possession against a co-tenant in actual possession, where the latter resists the partition upon the ground that he has acquired title to the land as against his co-tenants by adverse possession, it is incumbent upon him in- his answer to clearly aver an open and manifest renunciation of the tenure of his co-tenants brought home to them by actual notice of the character of his possession or by such acts of ownership on his part as to charge them with notice of the hostility and exclusiveness of his possession, and that such possession has continued since the disseizin of his co-tenants for the statutory period necessary to ripen into title.</p> <p>6. The disseizin of one tenant in common occurs when he has knowledge that his co-tenant has taken possession of the common property with the intention to hold it exclusively as his own, and has done some act evincing an intention to assert an adverse and hostile claim.</p> <p>7. A suit for partition cannot be used as a substitute for the action of ejectment, nor for the sole purpose of testing the legal title to land, yet when a suit for partition is properly brought all controversies between the parties as to the legal title will be settled by the Chancellor under the statute. Secs. 1940-1946 Gen. Stats.</p> <p>8. Constructive adverse possession of land against the true owner occurs only where actual possession of at least part of the tract has been taken under color of title.</p>

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

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

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

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

<p>1. A demurrer to a declaration as a whole is properly overruled where the declaration contains common counts.</p> <p>2. Where several persons are sued as copartners under a certain name and to the declaration they interpose a plea that they are not copartners but stockholders in a corporation of that name which had been duly organized under the laws of the State, and that it had changed its name' from time to time under authority of law and that when the cause of action accrued the name of the corporation was not that under which the parties were sued; and it appears from the record in the form of a stipulation between the parties, that after the corporation was organized and letters patent issued and a certified copy of the charter filed and recorded in the office of the Clerk of the Circuit Court for the county in which the corporation was to have its principal place of business, but that the treasurer of the corporation had failed to file in the office of the Secretary of State and the office of the Clerk of the Circuit Court of the county in which the corporation was to have its principal place of business, duplicate affidavits that ten per cent of the capital stock of the corporation had been subscribed and paid, and from the evidence it appeared that when the suit was instituted the corporation bore the name under which the stockholders were sued as partners: held : That the plea was not sustained and that the persons sued were liable as members of a general partnership, under Section 2652 of the General Statutes of Florida.</p> <p>3. The provision of Section 2632 of the General Statutes of Florida requiring a corporation organized in this State, through its treasurer to make and file in the offices designated therein, duplicate affidavits that ten per cent of the capital stock has been subscribed and paid, is neither remedial nor penal, but requires the act as showing good faith in the organization of the corporation and that the incorporators intend to do business under the charter and not as individuals. A failure to file the affidavits does not create a liability against the incorporators and stockholders for the debts incurred in the name of the corporation, but such liability having attached to them as individuals it continues as such against them until liquidated or settled.</p> <p>4. Where persons have incurred such liability it is unnecessary in a declaration upon such cause of action, to allege that they organized a corporation but failed to comply with the statutory requirement as to the recording of the charter or the filing of the duplicate affidavits.</p> <p>3. Where an immaterial issue is presented, but it appears from the record that the jury passed upon the merits of the case and a right judgment was entered a new trial should not be ordered because the immaterial issue should have been found in favor of the party complaining.</p> <p>6. Wheiher incorporators and stockholders of a corporation which has failed to comply with the provisions of Section 2632 G. S. are liable for obligations arising ex delicto incurred in the corporate name, not determined in this case.</p> <p>7. The trial court commits no error in refusing charges although they announce correct principles and are applicable to the evidence, if such charges have been already given by the court in substance and are embraced in the general instructions.</p> <p>8. Requested instructions inapplicable to the evidence are correctly refused.</p> <p>9. An instruction which unqualifiedly imposes the duty upon a consignee of fruit under contract of purchase, to accept the same upon arrival at destination and sell the same for the best price obtainable notwithstanding the delayed shipment and bad condition of the fruit on arrival, is correctly refused where the evidence is conflicting as to the breach of contract on the part of the shipper, who was the seller, to whose breach of contract is attributable the delay in the transportation of the fruit and its bad condition on arrival.</p> <p>10. Charges given by the court will be considered in connection with the evidence and pleadings in the case and interpreted in reference thereto, in testing assignments of error based on the giving of such instructions.</p> <p>11. Where assignments of error are based upon a portion of the court’s instructions, the appellate court in considering the assignments will examine the entire charge for the correct interpretation of the portion objected to and if in the light of the entire charge the portions objected to are not harmful or erroneous the assignments will fail.</p> <p>12. The evidence examined and found sufficient to support the verdict.</p>

<p>Writ of error to Circuit Court, Dacle County; H. Pierre Branning-, Judge.</p>

<p>When the return of the sheriff on the summons is sufficient and an appearance for the defendant is attempted to be made by an attorney not authorized to practice in the courts of the State, a default duly entered may not be vacated in the discretion of the trial court.</p>

<p>Where punitive damages are not authorized by the case made, it is error to charge the jury upon the theory that punitive damages may be involved in the finding.</p>

<p>Where there is no evidence upon which to predicate punitive damages, it is error to charge the jury upon that subject.</p>

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

<p>Section 2677 General Statutes of 1906 permitting execution against stockholders will not be held, unconstitutional in behalf of one who moves to quash and declines to proceed to protect his rights under section 1624, for illegality of execution.</p>

<p>One who undertakes to cross a railroad track ahead of an approaching train which he knows to be near, is chargeable with the exercise of such caution and prudence as is demanded under the circumstances, and if in disregard of such warnings and admonitions as the circumstances force upon him he takes the risk of crossing and is injured by the passing train, his conduct will be regarded as the sole proximate cause of his injury.</p>

<p>Where material and harmful error clearly appears in a survey on which a judgment in ejectment is based, the judgment will be reversed.</p>

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

<p>1. Where an order of the Railroad Commissioners requires the construction of a depot of stated dimensions at a stated place in a municipality, the structure to he of wood, and an ordinance of the municipality forbids the erection of other than brick, stone or other fire proof material, which ordinance is brought to the attention of the Railroad Commissioners as a reason for not complying with the order, such order will not be enforced by mandamus, where the effect of the ordinance on the order has not been considered by the Commissioners in determining the reasonableness of the order.</p> <p>2. While the duty of furnishing reasonably adequate depot facilities may be enforced, the nature and extent of facilities required to be furnished should be determined after a due consideration of all pertinent facts including the expense to the carrier and the relative benefits to the public to be served.</p>

<p>In an action for damages against a railroad company for injuries sustained by the running of a train, where the plaintiff and defendant were both at fault when the injuries occurred, and the damages were not diminished in proportion to the fault attributable to the plaintiff as required by the statute, a new trial should be awarded.</p>

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

<p>On an appeal from an interlocutory order appointing a receiver of all the assets of a corporation, where it is made to appear to the court that the basis for the appointment of such receiver was to enforce the payment óf a judgment , which the appellee had recovered against such corporation and that such judgment had' been reversed by this court, leaving no basis for the -appointment of a reciever, the interlocutory order appealed from will be reversed for that reason.</p>

<p>When the verdict is not warranted by any count of the declaration a judgment rendered on the verdict will be reversed.</p>

<p>Where an equity cause has been reversed with leave to produce further evidence on a point and the evidence taken is sufficient ' to sustain the decree, it will he affirmed.</p>

<p>Where the evidence does not clearly show liability and the verdict is excessive, a new trial should be granted.</p>

<p>1. A clause, in a contract for the construction of a manufacturing plant to be occupied by the owner, providing for the payment by the contractor to the owner of a specified sum of money for each day the manufacturing plant should remain unoccupied after a certain day agreed upon between the parties for the completion of the plant, held to be one for liquidated damages and not a penalty where it appears from the circumstances surrounding the formation of the contract, the situation of the parties at the time, the certainty that some damages would accrue to the owner by reason of a failure to comply with the contract on the contractors’ part, but uncertainty as to amount; the difficulty of ascertaining the damage that might accrue and the language of the contract, that it was the intention of the parties to stipulate for damages.</p> <p>2. It is competent for the parties to a building contract to stipulate for the payment of liquidated damages on the failure of the contractor to complete the contract on a day named, where the amount agreed upon from all the circumstances does not appear to have been so unreasonable as to suggest an intention of the parties to provide for a penalty.</p>

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

<p>X. Due process of law requires that a person shall he duly charged with the commission of an offense and that he be given an opportunity to defend, before he is convicted of the offense, as well as that the offense shall be one duly prescribed and defined by law and that the trial shall be by appropriate procedure in a competent tribunal.</p> <p>2. Where a person who was not charged with the commission of a criminal offense and not arraigned or tried, is convicted of such offense, he may on habeas corpus be discharged from custody under such conviction.</p>

W. Perkins, Judge. Statement. On the nth day of September, 1915, the DeLandLake Helen Road and Bridge District in Volusia County, Florida, by M. M. Bond and the other county commissioners of, such county, filed a petition under the provisions of Chapter 6868 of the Laws of Florida, (Acts of 1915, page 141), for the purpose of having validated a bond issue for the sum of $350,000.00 which had been voted upon and authorized at a special election held on the 13th day of July,…

<p>Writ of Error to Circuit Court, Walton County; C. L. Wilson, Judge.</p>

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

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

<p>1. On cross-examination of a defendant who voluntarily becomes a witness, a wide latitude is allowed to test the credibility of the testimony given; and it is not error to permit proper questions as to previous statements or admissions of the witness that are relevant to the issues being tried, even though the tendency of the question is unfavorable to the defendant.</p> <p>2. In a prosecution for the crime of carnal intercourse with an ' unmarried female person under the age of eighteen years, committed prior to the enactment of Chapter 6974, Laws of 1915, it is not error to charge the jury that the previous chaste character of the prosecuting witness is-not in issue.</p> <p>3. Even if technical error is committed in admitting testimony as to statements or confessions made by the accused while in custody, such error will not constitute reversible error when there is other evidence of confessions not objectionable and there.is evidence to sustain the verdict.</p> <p>4. Charges requested may properly be refused when they are incorrect or inapplicable or have been covered by other charges which have been given.</p>

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

<p>Where a bill in chancery is filed for the purpose of having a conveyance declared to be a usurious mortgage, and the Chancellor finds on the evidence adduced that the transaction was a mortgage and that the same was usurious and renders a decree accordingly, such decree will not be reversed by an appellate court when there is ample evidence to sustain such finding and it does not appear to be erroneous.</p>

<p>1. “A just valuation of all property” is not secured as is mandatorily required by the Constitution when the assessment valuation of some property is higher proportionately than the valuation put upon other property assessed for the same purpose.</p> <p>2. In the absence of express repeals or irreconcilable repugnancy the effect of a later statute upon a former one affecting the same subject, depends upon the intent of the lawmaking power; and this is true whether the two statutes are passed at the same session or at different sessions of the legislature.</p> <p>3. The intent of a statute is to be determined by a consideration of the language used, the subject-matter, the purpose designed to be accomplished and all other relevant and proper matters that may assist in ascertaining the legislative intent.</p> <p>4. A general statute covering an entire subject-matter, and manifestly designed to embrace all the regulations of the subject, may supersede a former statute covering a portion only of the subject, when such is the manifest intent, even though the two are not wholly repugnant.</p> <p>5. Where there is material repugnance in statutory regulations, or where there is anything from which an intent that a later act shall supersede a prior act may be .fairly inferred, it will be given that effect, particularly when the later act covers a broader general subject and contains a portion of the particular provisions of the former act and adds to some portions and omits other portions of such particular provisions so as to make such particular regulations contained in • the prior act conform to the purpose and policy of the later act covering a broader subject including the lesser.</p> <p>6. In enacting Chapter 5596, approved June 18, 1907, the lawmaking power clearly indicated an intent that such Chapter shall supersede the previously enacted Chapter 5605, approved May 22, 1907, which covers only a portion of the subject-matter that is fully covered by the complete regulations contained in the subsequently enacted Chapter 5596 approved June 18, 1907.</p> <p>7. The county commissioners have no general power in making tax assessments but only such special and limited power as is specifically conferred by statutes to secure equalization of tax values. When that power as specially conferred is exercised and final adjournment is taken, their special power as a Board of Equalization ceases particularly when as in this case the power is limited and particular and in no sense general as are other powers conferred upon the Commissioners with reference to general county .matters.</p>

<p>Appeal from Circuit Court, Escambia County; A. G. Campbell, Judge.</p>

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

<p>Original proceedings in Habeas Corpus, before Supreme Court.</p>

<p>1. The mere filing and presentation of a petition for a rehearing in a cause in chancery does not operate to lengthen the time within which an appeal may be taken from the final decree, beyond that prescribed by Section 1904 of the General Statutes of Florida.</p> <p>2. Under Rule 87 Equity Actions a final decree in chancery may be recorded immediately upon its being signed by the Chancellor and the formality of entry is completed when it is recorded in the minutes of the court. No formal enrollment of it is required.</p> <p>3. An appeal from an order denying a petition for a rehearing where no appeal was taken from the final decree within the •time prescribed by the statute for taking appeals in chancery does not bring before the court for review the final decree, and where the order denying the petition for a rehearing cannot be considered without reviewing the final decree in such a case the order will be affirmed.</p> <p>Cockrell, J., dissents.</p>

<p>1. Section 3476 of the General Statutes of Florida prescribing punishment for the crime of bribery does not in the definition of the crime denounced include all the essential elements of such crime.</p> <p>2. An information charging one with an offense under the provisions of Section 3476 of the General Statutes of Florida is fatally defective which charges that the offense was committed by offering to a juror a gift of money, and fails to allege knowledge on the part of the accused of the official character or capacity of the person to whom the bribe was offered and that the thing offered was of value.</p>

<p>1. A minor husband who is able by his labors to support his wife and child may be held criminally for withholding that support, under a statute aimed at delinquent husbands.</p> <p>2. In a prosecution against a husband for withholding support from his wife, though adultery be a defense, general reputation of the wife for chastity is inadmissible.</p> <p>3. Occurrences arising subsequent to the separation and having no connection therewith are inadmissible in evidence in behalf of a husband charged with wife desertion.</p>

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

<p>1. In an action against a common carrier whereby it is sought to recover damages for the loss of perishable goods entrusted to such carrier for shipment, alleged to have been occasioned through the negligent handling of and unreasonable delay by the carrier in transporting such goods, the declaration is not demurrable for failing to allege that the plaintiff was the owner of the goods. The consignor has the implied right to bring such action by reason of his delivery of the goods by him to the carrier and its receipt of them for carriage, especially when it is made to appear from the allegations of the declaration that the consignee was to receive and sell the goods for the plaintiff as the consignor.</p> <p>2. In actions at law where the negligence of the defendant is the basis of recovery it is not necessary for the declaration to set out the facts constituting such negligence, but an allegation of sufficient acts causing injury to the plaintiff, coupled with an allegation that such acts were negligently done, will be sufficient.</p> <p>3. In an action by a shipper to recover for loss of goods under Interstate Commerce Act Feb. 4, 1887, c. 104, sec. 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29, 1906, c. 3591, sec. 7, par 11, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), requiring any interstate carrier to issue a bill of lading, and making it and any other carrier to which it may be delivered liable “to the lawful holder thereof” for any loss, the holding of the bill of lading is not a prerequisite to such right of action; but the statute extends its remedy directly against the carrier to whom goods are delivered for shipment in behalf of such shipper, or one who has succeeded to his rights. The declaration is not subject to demurrer for failing to allege that a receipt or bill of lading was issued for the goods and that the plaintiff was the lawful holder of such bill of lading.</p>

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

<p>1. A motion to quash an alternative writ of mandamus, like a demurrer to a declaration, admits as true all such matters of fact as are sufficiently pleaded.</p> <p>2. The description contained in an order of the Railroad Commissioners, of a tract of land upon which a Terminal Company and certain railroad corporations were required to erect a terminal passenger station, does not show the existence of a public street running through the tract by the use of the following words: bounded “on the north by a line running parallel with and two hundred feet north of the north line of Adams Street extended west from Myrtle Avenue to the aforesaid west line of the same tract.”</p> <p>3. An order made by the Railroad Commission prior to the Act of 1913, Chapter 6527, for which no power or authority existed in the Commissioners to make, is not affected by the provisions of such act declaring all presumptions to be in favor of every action of the Commissioners and all doubts as to their jurisdiction and powers to be resolved in their favor, when the latter act does not confer the power attempted to be exercised either expressly or by implication. In such case no basis exists upon which a doubt as to such power may rest and the provisions of the act therefore as to the construction of such an order do not apply.</p> <p>4. Neither Section 2893 General Statutes of Florida, 1906, as it existed before the amendment by Chapter 6527 Laws of 1913, Section 2893 Compiled Laws of Florida, nor the latter act, Chapter 6527, confers upon the Railroad Commissioners any valid power to order a local Terminal Company engaged in the business of operating a Terminal Passenger Station, to erect a “new, better and larger” one on a different site for the depot accommodations of all railroads that may enter the city where it is located; nor have the Railroad Commissioners any power whatever under said statutes to order the Railroad Corporations renting and enjoying the facilities afforded by such Terminal Station to join with such Terminal Company in the erection of a new, better and larger terminal passenger station on a different site.</p> <p>5. Subdivisions 5, 7 and 8 of Section 3 of Chapter 6527 Acts of 1913 amending Section 2893 of the General Statutes of Florida, 1906, prescribe specific and definite regulations applicable to separate and distinct classes of railroad depots and terminal stations, and clearly define the power of the Railroad Commissioners in regard thereto, and neither of said statutes afford any authority whatever for the attempted exercise of the power mentioned in the above head-note.</p> <p>6. The authority delegated by the Legislature to the Railroad Commissioners by Section 2893 of the General Statutes of Florida, 1906, as amended by Chapter 6327 Laws of 1913, to compel two or more railroads entering a city or point to erect, operate and maintain a joint passenger terminal or Union Depot for their exclusive use as authorized by subdivision 8 of Section 3 of Chapter 6327, is different in theory and substance from the asserted power to compel two or more railroads entering the same town or city to erect a Terminal Passenger Station for their use and that of such other carriers as may desire to enter and pay a reasonable compensation for such facilities or the power to compel two or more railroads entering the same town or city to become joint owners of and co-partners with a Terminal Company in conducting such business and erecting such station.</p> <p>7. By the provisions of Section 2892 General Statutes of Florida, 1906, the term “Common Carrier” is made to include companies operating terminal or union depots, but such section does not change nor in any degree alter the duties and obligations of such a company or corporation to the public, nor does it confer upon such a company the power of eminent domain.</p> <p>8. As the Railroad Commissioners, who are statutory officers, can have and exercise no “jurisdiction” or “powers” except such as may be lawfully conferred upon them by the statutes of the State, an order made by the Railroad Commissioners cannot “be deemed and held to be within their jurisdiction and their powers,” unless there is some basis in a statute for the exercise of the jurisdiction and power involved in making the order.</p> <p>9. The statute provides that “all presumptions shall be in favor of every action of the” Railroad Commissioners, but a presumption in favor of action taken under an asserted delegated statutory power can arise only when some substantial basis of authority for the exercise of the power appears in a statute.</p> <p>10. Though the statute enacts that “all doubts as to the jurisdiction and powers” of the Railroad Commissioners “shall be resolved in their favor,” doubts cannot be resolved in favor of an asserted delegated statutory power when it is clear that there is no enactment that can be a basis for such asserted delegated power.</p> <p>11. Where a general statute provides comprehensive regulations of common carriers and in distinct subdivisions enacts separate and specific regulations particularly affecting definite portions of the broad general subject of the statute, each such distinct subdivision of the statute, having had the discriminating attention of the lawmakers, must be regarded as expressing the precise legislative intent as to the nature and extent of the regulations of the particular matter therein treated.</p> <p>12. Each one of the subdivisions S, 7 and 8 of section 3, Chapter 6527, Acts of 1913, amending section 2893 of the General Statutes of 1906, provides specific and definite regulations applicable to separate and distinct classes of railroad depots.</p> <p>13. The statutes do not confer upon the Railroad Commissioners any power that may fairly be regarded as authorizing the Commissioners to make an order requiring a local terminal company and the railroad companies that are its patrons jointly to change the location of the terminal company’s depot or terminal, and such order cannot be construed to include a requirement that the railroad companies shall erect a joint terminal or union depot for their joint use, a depot of wholly different class under the statute as to which there has been no hearing or consideration, therefore, the order cannot be enforced as it is framed either in whole or in any part thereof.</p>

<p>1. An indictment for forgery of a bank check is not fatally defective in calling the check set out in full an order for money.</p> <p>2. A conviction for forgery will be set aside when there is no evidence that the party accused ever had possession of the forged instrument, or that he could write at all.</p>

<p>Chapter 5651, Laws of igo7, requiring committing magistrates to take security for costs from the party applying for the warrant, or an affidavit of insolvency and of “substantial injury to person or propery by him suffered,” has no applicability to crimes of a public nature, such as the violation of the Local Option Law.</p>

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

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

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

<p>Writ of Error to Circuit Court, Dade County; J. Emmett Wolfe, Judge ad Litem.</p>

<p>1. A voluntary confession to an cifficer is not rendered inadmissible because made by one in custody who had been warned or cautioned against self incrimination.</p> <p>2. Calling an officer “friend” does not indicate that a confession was induced improperly.</p> <p>3. Evidence that the corpse of A was found with holes in the body and other portions made by shot is sufficient as to corpus delicti to admit a confession.</p> <p>4. The evidence does not show insanity.</p>

<p>I. A county is a political subdivision of the State, created for administrative purposes, is representative of the sovereignty of the State and auxiliary to it. Its functions aré of a public nature, it is political in character and constitutes the machinery by and through which many of the powers of the State are exercised.</p> <p>2. The building of roads and bridges and the maintenance of the same are none the less powers and duties of the State because it delegates the performance of -.these duties to officers of the different political subdivisions who in discharging such duties act as agents for the public at large.</p> <p>3. A county of this State being a mere governmental agency-through which many of the functions and powers of the State are exercised, partakes of the immunity of the State from liability and may not be sued in an action ex delicto by one who in ignorance of the unsafe condition of a county bridge sustains a damage to his vehicle in crossing the bridge which the county has permitted to become unsafe and unfit for use.</p>

Case of original jurisdiction in Supreme Court. Statement. An alternative writ of mandamus was on the relation of the relators granted by this court to the respondents, in which it is alleged among other things as follows: “That it is provided in Section 1 of Chapter 6881, Acts of 1915, Laws of Florida, that the owner or operator of every automobile or other motor driven vehicle operated in this State more than fifteen days, when used for hire or charter, or when charge is…

<p>Curative!, Acts — Constitutionality op Chapter 7205 Acts op 1915 — Legislature May Authorize Issue of Bonds by Municipality for Municipal Purposes Without Any Vote Therefor by the Electorate of Said Municipality.</p> <p>1. Chapter 7205 approved June 4th, 1915, is not obnoxious to the Constitution on the alleged ground that part of its subject-matter is not expressed in its title. Neither is it in violation of the constitution by divesting the appellants of any vested rghts to an alleged defense to litigation. Neither does it violate the constitution by divesting this court of jurisdiction to determine any question at issue in litigation pending before it. \</p> <p>2. The legislature has plenary powers over municipalities, and over the issue thereby of bonds for municipal purposes, and can authorize an incorporated city or town to issue bonds for a legitimate municipal purpose without any submission of the question to the electorate of such municipality.</p>

<p>Criminal Law — Withholding Means of Support by Parent from his Children — What Constitutes.</p> <p>1. Where the evidence on a trial for the wilful withholding of the means of support from the defendant’s children shows the following state of facts: The defendant left his home in a small country village and went to a distant State where he engaged in the- practice of his profession as a physician, leaving his wife and six children and a man relative of his in a comfortable and roomy home abundantly furnished, and with an abundance of clothing and bed coverings, and after an absence of about two and a half months he was brought back to this State under a warrant sued out by his wife charging him with the crime of wilfully withholding the means of support from his children. When he left he made out and -verified divers accounts that he held against various of his patrons and with a power of attorney delivered them to the male relative of his who resided at his home with his family, with instructions to collect said accounts and to devote such collections to the maintenance and support of his family during his absence. That during the two and a half months that he was away his family got the benefit of upwards of $167.00 in money, sent back by him after he left, and some of it left by him at the time he left, and in groceries and country produce from collections made of the accounts left by him. $107.45 of this amount beinsf admittedly received directly by his wife including therein $10.00 sent to her oldest daughter by the defendant. That since his return to Florida, he has taken his three oldest children, a girl of fourteen years of age and two boys, one twelve years and the other nine years of age, and has put them at a boarding school where he maintains them; and besides since his return he has been and is still paying $30.00 per month to'his wife for her support and that of his three remaining- youngest children. Under these circumstances: Held, That a case has not been made out of a wilful withholding from the defendant’s children of the means of procuring the necessities of life. The law does not require luxuries to be supplied by the parent, but the means of support that he must wilfully withhold to make him amenable to punishment under this criminal statute, contemplate only the necessities of life such as he has the ability to supply.</p>

<p>1. A corporation or company engaged in the operation of a sawmill, and as an incident to such business operates a steam railroad about six or seven miles long, commonly known as a log road, is not “a railroad company” within the terms and meaning of Sections 3148, 3149 and 3150 of the General Statutes of 1906.</p> <p>2. The common law is in force in this State, except where it has been modified by competent governmental authority.</p> <p>3. In actions for the recovery of damages to a person or his property, alleged to have been occasioned by the negligence of the defendant, the common law principle which prevents a recovery if the plaintiff’s own negligence contributed proximately to his injuries has not been modified or changed, except as modified by Sections 3148, 3149, 315° of the General Statutes of 1906, and Chapter 6521 of the Acts of 1913.</p> <p>4. At the common law where the master himself has performed his duty, he is not liable to one of his servants for personal injuries received by such servant in the course of his employment, through the negligence of a fellow-servant or co-employe of such servant, when engaged in the same undertaking or common work or enterprise, unless such fellow-servant or co-employe sustains a representative relation, such as vice-principal, to the master. This common law principle is in force in this State, except as modified by Sections 3148, 3149, 3150 of the General Statutes of 1906, and Chapter .6521 of the Acts of 1913.</p> <p>5. In actions for negligent injuries it may be necessary to allege only the relations between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.</p> <p>6. A declaration should contain sufficient allegations of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged.</p> <p>7. In an action whereby it is sought to recover damages for personal injuries alleged to have been occasioned by the negligence of a railroad company or corporation, a count in the declaration alleging “that the said track and rails were wet, and the said locomotive engine and tender leaked in such a way the water therefrom fell upon the rails of said track, and the sand box on said locomotive engine was in such a defective condition that sand would not fall therefrom upon the rails of said track by reason whereof the said locomotive engine upon which plaintiff was riding could not be stopped and collided with the said derailed locomotive engine,” is not demurrable for failing to allege the acts or omissions of ¡the defendíant which caused the plaintiff’s injuries. »</p> <p>8. Except as modified by statute, an engineer and a track repairer, though in different departments of the railroad company, are fellow-servants engaged in the same common work or enterprise, and where such track repairer, while riding-on the engine in charge of such engineer to the place where such track repairer has to work, received injuries by reason of the negligence of such engineer in operating the engine, there can be no recovery by the track repairer against the railroad company, the engineer not sustaining- a representative relation, such as vice-principal, to the defendant company.</p> <p>9. The allegata and probata must meet and correspond, the issues being made by the pleadings to which the proofs must be confined. There can be no recovery upon a cause of action, however meritorious it may be, that is in substance • variant from that which is pleaded by the plaintiff.</p>

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

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

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

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

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

<p>1. The State constitution does not grant particular legislative powers, but contains specific limitations of the general lawmaking power of the legislature.</p> <p>2. The duties of a State Attorney are statutes; and while . under the constitution there must be “a State Attorney in each Judicial Circuit,” the constitution does not expressly or impliedly require the duties “prescribed by law” for such officer to be confined to the Judicial Circuit in which he is appointed.</p> <p>3. Testimony of a witness that she was present when a statement was made is not hearsay.</p> <p>4. The age of a child may be testified to as a matter of family history.</p> <p>5. It is not error to refuse a requested charge that is in substance sufficiently covered by a charge given.</p> <p>6. A charge on the law applicable to facts of a case is not a charge on the facts.</p> <p>7. Where charges are endorsed by the judge as refused because covered by other charges given, it is not error to permit them to be taken by the jury to the jury room with the charges given, where no harm reasonably could have resulted therefrom.</p> <p>8. Where there is ample evidence to sustain the verdict, and there is nothing to indicate that the jury were not governed by the evidence, and no material or harmful errors of law or procedure appear, the judgment will be affirmed.</p>

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

<p>Writ of Error to Circuit Court, Santa Rosa County; J. Emmett Wolfe, Judge.</p> <p>Taylor and Whitfield, JJ., dissenting.</p>

<p>1. Under Section 2237 General Statutes of Florida, 1906, Compiled Laws of 1914, the landlord's lien provided for in the Second subdivision of the section is not superior to a lien acquired by another prior to the bringing of the property upon the leased premises or prior to the commencement of the tenancy under the lease.</p> <p>2. A written lease of lots which provided that the time should begin to run from a date in the past, executed between the owner of the lots and a tenant subsequently to the bringing upon the lots of personal property which was immediately mortgaged to secure a balance due for its purchase price, will not be given a retroactive effect in order to defeat the superiority of the mortgage lien over that of the landlord.</p>

<p>1. J. M. and E. L. were half sisters, daughters of J. L. by slave marriages. J. L. died in 1894 leaving surviving him his widow whom he had married in 1866, and the two daughters J. M. and E. L. by slave marriages. The widow survived her husband a short while, and died prior to 1899 without children or other known heirs. The appellants claim title to the real property under one of the half sisters who were held to have inherited the real property of their ancestor J. L. under the Act of 1899 entitled “An Act to Legalize the Marriages and Offspring of Persons of African Descent,” and were tenants in common of such property. Held, that appellants could not be heard to insist that the real property was^inherited by the widow and at her death escheated to the State to defeat a bill for partition brought by the half sister of their grantor.</p> <p>2. Mere silent possession of land by one tenant in common is not sufficient to' divest the right of his cotenant. Open, notorious, continuous, adverse possession by one tenant in common for a period of seven years will ripen into title by adverse possession as against his cotenant only when the character of such possession has been brought home to his cotenant and thereafter continued for such a period of seven years.</p>

<p>AVrit of Error to Circuit Court, Pinellas County; O. K. Reaves, Judge.</p>

<p>Where on habeas corpus proceedings it appears that the petitioner is held under a sentence that is illegal, the petitioner may be remanded for a proper sentence, he having his right to bail as the law provides pending the imposition of a legal sentence.</p>

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

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

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

<p>Writ of Error to Circuit Court, Leon County; E. C. Love, Judge.</p>

<p>1. Sureties upon a bond may be bound, though the feme covert principal be not bound.</p> <p>2. A married woman may interpose a claim to her personal property levied upon as the property of her husband.</p>

<p>1. The constitution ordains that the legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, that is subject to taxation, that all property shall be taxed upon the principles established for State taxation; but cities and towns shall make their own assessments for municipal purposes, and when general statutes provide regulation by which just valuations and uniform and equal taxation may be attained, it is not essential that such regulations be incorporated in the charter of a city which has the powers conferred upon municipalities by the general laws; and under a power to tax such city may prescribe appropriate regulations to secure just valuations and a uniform and equal rate of taxation.</p> <p>2. Valuations for taxation must have a just relation to the real value of the property assessed and there must be no substantial inequality in valuations in the various kinds and items of property that is subject to the tax.</p> <p>3. The means and,methods prescribed for ascertaining the value of property for taxation purposes must be substantially observed and followed, or else the assessment will be invalid and a talcing of property without due process of law.</p> <p>4. Wlhile the law accords a range of discretion to the officer authorized to ascertain and determine valuations of property for purposes of taxation, when the officer proceeds in accordance with and substantially complies with the requirements of law designed to ascertain such values, yet if the steps required to be taken in making valuations are noi in fact and in good faith actually taken, and the valuations are shown to be essentially unjust or unequal abstractly or relatively, the assessment is invalid.</p> <p>5. Where the essential requirements of law are not observed in making valuations of property for assessment, and the valuations as made are shown by admissions or proofs to be clearly excessive, unjust and unequal, appropriate relief may be had in equity even though the proceedings authorized by law for seeking relief from administrative officers were not utilized, where the case made shows a flagrant violation of or omission to follow the mandatory requirements of the law in valuing property for taxation.</p>

<p>Appeal from Circuit Court, Gadsden County; E. C. Love, Judge.</p>

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

<p>1. Section 1425 of the General Statutes of 1906 providing for the entry of final judgment upon default requires a strict conformity to its terms on the part of the clerk of the court who in entering the final judgment acts merely in a ministerial capacity.</p> <p>2. The entry by the clerk of a final judgment upon default should recite the proofs of the claim that were produced and filed; that he ascertained from such proofs the amount found to be due, which should be followed by language signifying the entry of a judgment for the amount so assessed or ascertained.</p> <p>3. In an action of ejectment a sheriff’s deed based upon a ’judgment void upon its face is inadmissible as a muniment of title.</p>

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

<p>Writ of Error to Circuit Court, Jackson County; E. C. Love, Trial Judge.</p>

<p>Homestead exemptions “inure to the widow and heirs of the party .entitled to such • exemption” and “apply to all debts, except as specified,” and such homestead is subject to partition among those entitled thereto as other property, upon the death of the head of the family.</p>

<p>Where two parties enter into an agreement to become equally interested in the erection of a house upon land and in the sale of the property for profit, ^^p party to furnish the land and to furnish money for the instruction of the building on the land, the other party to furnish plans and specifications for and to supervise the erection of the building, both parties to endeavor to sell the property at a price to be agreed on and to “divide equally the net profits made from the sale of said property,” and the agreement does not contemplate a laborer’s lien to secure payment to the party who furnishes the plans and specifications, a demurrer to a bill of complaint brought by the party furnishing the plans and specifications to enforce a laborer’s lien for the same, should be sustained, the remedy at law being adequate.</p>

<p>Appeal from Circuit Court Pinellas County; O. K. Reeves, Judge.</p>

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

<p>Appeal from the Circuit Court, Dade County; H. Pierre Branning, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Dade.</p>

<p>A Writ of Error to a Judgment of the Circuit Court for Monroe County.</p>