Volume 73 — Florida Reports

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

<p>1. Section 1950 of the General Statutes of Florida, 1906, providing for the removal of clouds from the title to real estate by bills in equity was intended to enlarge the jurisdiction of Courts of Chancery.</p> <p>2. When from the language used in several paragraphs of a bill it appears that the complainant is in the exclusive possession of the lands from the title to which the cloud is sought to be removed, the bill will on demurrer be deemed to be sufficient so far as the allegation of possession by the complainant is concerned.</p> <p>3. The court will not take judicial knowledge that Joseph H. Drake and Joseph H. Burke are one and the same person.</p> <p>4. A bill in equity to remove a cloud from complainant’s title to lands, which by its allegations shows that the deed constituting the cloud rests upon no right, title or interest in the lands possessed by the grantor in such deed, is not demurrable for that reason alone.</p>

<p>1. Section 3148, General Statutes of 1906, defines the liabilities of railroad companies in certain cases, and in so far as such statute in effect creates a presumption of negligence from “damage done to persons” “by the running of the locomotives or cars or other machinery of” “a railroad company,” such provision is a matter of substance affecting the liability of railroad companies, and being in conflict with the provisions of the Federal Employer’s Liability Act, it is superseded by the Federal Act which is paramount and exclusive in cases to which the latter is applicable.</p> <p>2. Under the Federal Employer’s Liability Act, the burden is upon the plaintiff to prove negligence of the defendant that proximately caused the injurjr alleged; and while the circumstances of the injury, under the doctrine of res ipsa loquitur, may warrant an inference or presumption of negligence, such inference or presumption merely requires the defendant to produce evidence in explanation or rebuttal; and the inference or presumption is to be weighed against the evidence in explanation or rebuttal, observing the rule that the burden of proof is upon the plaintiff; and if the probative force of the circumstances and facts in evidence do not preponderate in favor of the presumption and against the defendant’s proofs, the plaintiff fails to make out his case.</p> <p>3. Even where contributory negligence and assumed risk are rightly pleaded but are not proven, the plaintiff may not recover where the evidence shows without contradiction that the defendant was not negligent as alleged.</p>

<p>1. In an action of ejectment evidence of an equitable estoppel is admissible under the general issue.</p> <p>2. Evidence tending to prove an equitable estoppel against the plaintiff in ejectment or tending to prove an equitable title in defendant’s grantor claiming under the plaintiff, should not be excluded upon the ground that such evidence is immaterial and irrelevant, although such evidence may not be sufficient of itself for such purpose.</p> <p>3. Mere lapse of time during which plaintiff in ejectment fails to assert title to land owned by him does not of itself work an estoppel against him.</p>

<p>1. As “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,” is forbidden “within the United States” by the Federal Constitution, a crime to be punished by imprisonment cannot lawfully be predicated upon the breach of a promise to perform labor or service.</p> <p>2. Chapter 6528 Acts of 1913 in effect provides punishment for failure or refusal, without just cause, to perform labor or service under a contract, thereby violating the Federal law which is the supreme law of the land within its sphere of operation.</p>

<p>Where an appeal from an interlocutory order denying an injunction will be fruitless the appeal from such interlocutory order may be dismissed.</p>

<p>1. The matter of reinstating a case which has been dismissed for failure of plaintiff in error or appellant to file his brief within the time required by the rules of this court, is addressed to the sound discretion of the court, and in exercising such discretion, it will be influenced to some extent by the nature of the case and the remedy sought by the appeal.</p> <p>2. Where mandamus is sought solely to require an official act to be performed before a certain time, and by reason of delays on the part of plaintiff in error, the act if ordered by this court, could not be performed on or before such time, and the cause has been dismissed by this court for failure of plaintiff in error to file his brief, an application to have the cause reinstated will be denied.</p>

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

<p>1. An allegation in an indictment that the accused with a knife “did strike, cut, stab and wound, giving to L., then and there with the knife aforesaid and upon the body of the said L., one mortal wound,” considered alone or with other allegations, is not a charge that the accused wounded himself but that he wounded L.</p> <p>2. Where it is alleged in an indictment for murder in the first degree filed May 20, 1916, that a mortal wound was inflicted on March 10, 1916, and that “of which mortal wound the said” decedent “died,” and the trial and conviction is had in July, 1916, and a motion in arrest of judgment is made and denied in October, 1916, a contention in such motion in arrest that the indictment is fatally defective because it does not allege the date of the decedent’s death, is untenable.</p>

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

<p>Original Proceeding in Contempt.</p>

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

<p>1. Where a promissory note is executed in a county by a resident of that county, action thereon should be brought in that county, though the note was made payable in another county.</p> <p>2. Where a plea of privilege as to the venue is sustained, the judgment should be that the action abate not that the defendant go hence without day.</p>

<p>Where suit is brought in the county where the cause of action accrued, and service is made on the defendant in the county where he resides and not in the county where the action is brought, the defendant may plead his privilege to be sued in the county of his residence.</p>

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

<p>Equity Practice—Demurrer Admits Material Allegations of Bill to bp True.</p> <p>When the allegations of a bill for injunction justify the grant of the writ, and such bill is demurred to generally, such demurrer admits the material allegations of the bill to be true; and where a motion-to dissolve such injunction is predicated upon such demurrer, denial of such motion is proper; and such demurrer is properly overruled.</p>

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

<p>1. Mortuary tables are admissiblé where there is evidence of a permanent injury.</p> <p>2. Where the evidence sustains a verdict of liability in accordance with the allegations in an action for damages, and errors if any in giving or refusing charges are harmless, and no material error appears in the proceedings, the judgment will be" affirmed.</p>

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

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

Writ of Error to Circuit Court for Jackson County; C. L. Wilson, Judge.

<p>In an action at law brought by H. as surviving partner, &c., against Leon County for the recovery of the contract price for the building of a bridge, wherein the following minutes of a meeting of the Board of County Commissioners of Leon County were introduced in evidence by the plaintiff, which wére admitted to be correct:</p> <p>“County Clerk’s Office,</p> <p>“Tallahassee, Fla. May 7th, 1907.</p> <p>“The Board met pursuant to adjournment, there being present E. C. Smith, Chairman, R. G. Johnson, J. W. Collins, W. D. Stoutamire and W. A. Register.</p> <p>“Hon. A. L. Wilson, member of the Board of County Commissioners of Gadsden County, met with this Board to consider the building of a bridge across the Ocklockonee River at McCall’s Landing.</p> <p>“The following bids were received for, building a bridge across the, Ocklockonee River at McCall’s Landing, to-wit: E. G. Richards, $1,850.00; C. W. Blount, $1,900; H. L. McElvy & H. L. Hopkins, $2448.00;' H. L. Hopkins, $4.90 per foot, length 612 feet, $2,998.00.</p> <p>“Contract to build bridge across the Ocklockonee River at what is known as McCall’s Landing was awarded to H. L. McElvy &: H. L. Hopkins, and for which this Board becomes responsible and promises to pay as Leon County’s part in the construction of said bridge $1,224.00 when said bridge is completed, inspected and accepted by the Boards of County Commissioners of Leon and Gadsden Counties. This Board promises to pay $1,224.00 and no more for its part of the cost in the construction of.said bridge.</p> <p>“Approved June 4, 1907. , E. C. Smith, Chairman."</p> <p>Held, that such minutes show upon their face that a valid contract had been made and entered into by such county with H. to construct such'bridge for the sum of $2,448.00, of which amount such county became responsible for and promised to pay as its part in the construction thereof the sum of $1,224.00 when such bridge was completed, inspected and accepted by the Boards - of County Commissioners of Leon and Gadsden Counties, and, when the evidence adduced establishes the construction of such bridge .in accordance with the-provisions of the contract, the .plaintiff is entitled to recover from Leon County the amount for -which such county became liable by such contract.</p> <p>Writ of Error to Circuit Court for Leon County; E. C. Love, Judge.</p>

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

<p>Writ of Error to Circuit Court for Duval County; ■ George Couper Gibbs, Judge.</p>

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

<p>1. Where a bill of interpleader is filed, the better practice is first to determine whether such bill will lie. If it will not, it is useless to go further. If it will, then upon bringing the property in dispute into court, the complainant is discharged from further liability, with his costs, and the court orders that the defendants interplead and litigate the matter in dispute between themselves, which in effect becomes a new and independent proceeding, as between a complainant and a defendant.</p> <p>2. Where a bill of interpleader has been filed, if the issues between defendants are ripe for decision, the court may at a single hearing dispose of the whole controversy, including as well the issues between the complainant and defendants as the issues between defendants themselves, and make a final decree settling the rights of all parties at once; and where sufficient appears on the pleadings to enable the court to adjudge between defendants it will proceed at once. If, however, upon the discharge of the complainant the case is not ripe for hearing between the claimants, the court should order an action or an issue formed between defendants as to their respective rights to the fund, and may order a reference to a master to ascertain and settle their rights, and upon the trial of this issue a final decree as between defendants 'is rendered</p> <p>3. Where the right of a complainant to file a bill of interpleader is not questioned but would seem to have been recognized and acquiesced in by the defendants, and the property in question is deposited in court, an order should have been made, dismissing and discharging the complainant from all further liability, with its costs. Where the defendants then proceed to litigate the matters in dispute between themselves, it is not the proper practice for the losing defendant in appealing from the adverse decree to him to make the complainant appellee, since the complainant has no further interest in the litigation, but the losing defendant should make the winning defendant the appellee.</p> <p>4. Where a bill of interpleader has been filed and the court has properly acquired jurisdiction of the cause as between the defendants, it is not bound to award the fund or other thing in dispute wholly to him who has the legal title, but fnay so shape its decree as to do complete equity between the parties.</p> <p>5. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and it is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in' truth exist.</p>

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

<p>In an action on promissory notes, where a plea avers the delivery of the notes, but does not aver that the plaintiff holder knew of an asserted agreement between the original parties affecting the validity of the notes or that the notes are so incomplete or irregular, on their face as to affect their validity or to put the holder on notice of an agreement affecting the validity of the notes, such plea is subject to demurrer.</p>

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

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

<p>1. Section 1 of Article XI of the Constitution of Florida, 1885, which provides that the property of a married woman owned by her before marriage, or lawfully acquired afterward, shall be her separate property, and shall not be liable for the debts of her husband without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women, does not preclude a married woman from subjecting her separate property to the payment of'her husband’s pre-existing debt by joining with him in the execution of a mortgage in the form of a deed absolute, provided the same is executed in accordance with the law respecting conveyances by married women.</p> <p>2. When a married woman, under the provisions of Section 1, Article XI of the Constitution of Florida, 1883, consents that her separate property shall be liable for the debts of her husband, such consent may be in the form of a deed absolute to he^r separate property which by evidence aliunde may be .shown to be a mortgage, and need not expressly recite her corisent to the subjection of her property to such purpose, nor need such consent be supported by any other consideration than the debt of her husband.</p> <p>3. A married woman who joins with her husband in the execution of a mortgage upon her separate property to secure a debt of her husband, and such mortgage is in the form of a deed absolute which recites a specific amount as consideration, and she afterwards institutes a suit against her husband and the mortgagee for the purpose of having the instrument declared to be a mortgage, and for an accounting to ascertain the amount of indebtedness to secure which the mortgage was given, she will be bound by the decree in such suit adjudicating the character of the instrument and the amount due, which it was given to secure. '</p> <p>4. A pre-existing debt of the husband is a sufficient consideration to support a mortgage to his creditor executed by the debtor and his wife upon the latter’s separate property to secure the debt, and such consideration is a good consideration within the meaning of Section 2514 of the General Statutes of Florida, and in the absence of fraud and injury to a subsequent grantee such mortgage is a valid obligation, and will not be declared void at the instance of a subsequent purchaser with constructive notice of its existence.</p>

<p>Case of original jurisdiction in Supreme Court.</p>

<p>1. Where a Court of Equity hears and determines a controversy of such character that jurisdiction may be given 'by consent, and the parties without objection or question as to the mode of procedure go on to a hearing, neither should bet heard to complain afterwards as to the court’s jurisdiction.</p> <p>2. Where a bill in equity has for its principal object a partition of lands, and other questions arise as to complainant’s interests which are sought to be determined as incidental to the main relief, and such questions arose out of the gelations existing between complainant and defendant at the time when the incidents occurred giving rise to the differences between them, the court will determine the entire controversy.</p> <p>3. A bill in equity is not necessarily multifarious because there may be united in it several causes of action. If all the different causes of action united in the bill grew out of the same, transaction, and all the defendants are interested in the same rights, the bill will be maintained,</p> <p>4. The objection of multifariousness when made for the first time at the hearing, will not be sustained where the real point in the controversy can be determined as well in the one cause as if there were many separate suits, and the objection does not appear to be so grave as to interpose an obstacle to the proper administration of justice.</p> <p>5. In considering the question oí multifariousness the matter particularly involved is convenience in the administration Of justice, and if this can be accomplished by the mode of procedure adopted, an objection for multifariousness should not be allowed.</p> <p>6. Where a Court of Equity takes jurisdiction of a cause for one purpose, it will proceed with the determination of all the matters presented.</p> <p>7. Where a corporation entered into copartnership with an individual, and the copartnership transacted business and dissolved, and one of the copartners seeks a partition of lands held by the members of the ^partnership in common, the court will not consider the question of the validity of such copartnership where the interests of third parties are not involved.</p> <p>8. The Chancellor’s findings and conclusions bn the facts will not be reversed unless it clearly, appears that he erred in such conclusions.</p> <p>9. Where an answer to a bill in equity is made under oath, the averments contained in it which are responsive to the bill, and set up facts to which other testimony could be received, are to be taken as true unless disproved by evidence of greater weight than the testimony of one witness.</p> <p>10. A sworn answer is evidence in -the defendant’s favor in so far as its' statements are responsive to the allegations of the bill. Under Rule 41 of the Rules of Practice in the Courts of Equity of the United States as prescribed by the Supreme Court of the United States,-and amended in 1871, which by statute were made the Rules of Practice in Courts of Equity in this State, the complainant in order to avoid’ the effect of an answer was required, to expressly waive in the bill the oath of the defendant to the answer.</p> <p>11. The new rules of practice for the Courts of Equity in the United States as promulgated by the Supreme Court of the United States in November, 1912, make no provision for the complainant waiving in his bill an answer under oath, and as the new rules abrogated the old ones, and as there is no provision in the rules prescribed by this court on the subject as applied to the practice in. the courts of this State, a complainant cannot deprive the defendant of the benefit of his answer under oath by expressly waiving k in the bill.</p> <p>12. A sworn answer does not have, the effect of evidence in defendant’s behalf as to averments of fact set up by way of affirmative defense, nor as to averments of fact which testimony would not be admissible to prove.</p> <p>13. Section 2682 of the General Statutes of Florida, 1906, does not expressly prohibit a foreign corporation from bringing a suit in this State until it has complied with the requirements of the statute.</p> <p>14. When the defendant desires to raise the question of a foreign corporation’s right to maintain a suit in this State, the defense should be specifically made.</p>

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

<p>1. It is not the province of a demurrer, either in an action at law or suit in equity, to set out the facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleadings which, arise on the face thereof.</p> <p>2. In passing upon a demurrer 'to a bill in equity, matters dehors the bill cannot be considered, but only such matters as appear upon the face of the. bill. • ' \</p>

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

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

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

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

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

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

for Alachua County; J. T. Wills, Judge. Statement. E. L. AVatson filed his bill in chancery against J. A Bair and Frances A. Bair, which, omitting the caption, is as follows: “Your orator, E. L. Watson, of Alachua County, Florida, brings this his bill of complaint against J. A. Bair and Frances A. Bair, his wife, of Alachua and Putnam Counties, respectively, Florida, and thereupon your orator complains and says •: “That on the 4th day of December, 1913, your orator recovered…

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

<p>1. The Rules of the Circuit Courts in Equity Actions require counsel for the complainant to annex his signature to the bill of complaint, that it may be considered as an affirmation on.his part that upon the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed. Rule 27.</p> <p>2. An application for injunction based upon s bill of complaint which states no ground for equitable relief should be denied.</p> <p>3. -Proceedings by County Commissioners to establish a public ditch or drain through- certain lands, under the provisions</p> <p>* of Chapter XVI of the General Statutes of Florida, 1906, Florida Compiled Laws, 1914, which comprises Sections 950-960, and" as amended by Chapter 6457, Laws of Florida, 1913, do not deprive the owners of lands through which it is proposed to construct the ditch or drain, of their title or possession to such land.</p>

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

<p>Section 1 of Article X of the Constitution of Florida, 1885, which provides for exemption from forced sale under process, of any court, a homestead to the extent of one hundred and sixty acres of land owned by the head of a family residing in this State, does riot limit such exemption to the dwelling house of the owner and the subsidiary buildings located on the land, but extends to the entire one hundred and sixty acres, and the improvements on the real estate when the land is actually occupied and lived on by the owner and head of the family and his family.</p>

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

<p>Where there is ample evidence to sustain a decree for the cancellation of a deed of conveyance on the ground of fraud and violation of a trust, the decree will be affirmed, no errors of law.or procedure appearing.</p>

<p>1. An appeal from interlocutory decrees, some of which were entered more than six months prior to the entry of appeal, will entitle the appellant to have reviewed the propriety of the decrees entered within six months prior to the entry of appeal, but not those entered more than six months prior to the entry of appeal.</p> <p>2. A demurrer to the whole bill- should be overruled, if the bill makes any case for equitable relief.</p> <p>3. Upon an appeal from an interlocutory order, the court will . not consider whether the prayers of the bill are too broad, provided only it prays for something that is proper and germain.</p>

<p>x. In accordance with the provisions of Section 2963 of the General Statutes (of 1906, “,An accommodation party,” as defined by such section, who has signed a negotiable instrument “is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation endorser.”</p> <p>2. In accordance with the provisions of Section 16 of the U. S. Bankruptcy Act of 1908, “The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.”</p> <p>3. A pleading in an action at law may be infected with such vices as to be open to attack either by a motion to strike out or by demurrer.</p>

<p>1. Where no return for taxation is made to the Tax Assessor on or before April 1st, of each year, the lands must be assessed as “unknown,” and an asesssment made in the name of a person "who made no return and who acquired no interest , in the property until after April 1st, is not authorized by the statute.</p> <p>2. The statute gives the Assessor until the first Monday in July' to complete the clerical work on the assessment roll, but fixes April xst as the last date when the owner may require property to be assessed in his name.</p> <p>3. The duty of mailing notices of applications for tax deeds is mandatory, and the official charged with that _ duty must make diligent effort to ascertain the proper address of the party or parties to whom the notices must be sent, and mailing such notices to the wrong person, or to an improper address, is not such a compliance with the provisions of Sections 574 and 575 of t&e General Statutes of Florida as will give the holder of a tax deed issued by virtue of such notice, a valid title. ;</p> <p>4. Diligence in the discharge of their duties is required of public servants, particularly where the rights of owners of property maj' be jeopardized by their neglect, and their obligation to ■ the public is not discharged by a mere perfunctory performance of official acts.</p>

<p>Appeal from Circuit Court for Calhoun County; Cephas L. Wilson, Judge. •</p>

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

<p>Writ of Error to Circuit Court for Santa Rosa Count}'; A. G. Campbell, Judge.</p>

<p>An insurance policy made payable to the insured, “his executors, administrators and assigns,” may be bequeathed as a part of a general residuary legacy of “all my other personal property.”</p>

<p>Writ of Error to Circuit Court for Palm Beach . County; H. Pierre Branning, Judge.</p>

<p>In proceedings to estreat a bail bond there is no fatal variance between notice of a bond- conditioned “to appear at the Spring . Term, A. D. 1915,” and a bond offered in evidence conditioned to appear “on Monday the 21st day of June A. D. 1915,” it appearing that June 21st, 1913, was a day in the Spring Term of the court to which an adjournment was had on the day the bond was executed. .</p>

<p>A decree not sustained by the evidence will he reversed.</p>

<p>Petitioners discharged.</p>

<p>Where there is ample evidence to sustain a decree and no rule of law is violated, the decree will be affirmed.</p>

<p>Writ of Error to Circuit Court for Calhoun County; Cephas L. Wilson, Judge. „</p>

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

<p>•Partnership Accounting Must Be in Equity-One Partner Has . No Right to Sue His Partner at Law Upon a Partnership ■ Transaction Until the Business Is Wound up and the Accounts Finally Settled. Practice When Suit Develops to Be in Wrong Forum.</p> <p>It is the settled rule here, as elsewhere, that an action at law by one partner against his co-partner will not lie on a claim growing out of the partnership transaction, until the business is wound up and the accounts finally settled. The remedy of the complaining partner in such cases is to be sought ordinarily in an equity court by bill for an accounting and settlement of the partnership affairs. Where it develops in the trial before a jury of a case at law that it was mistakenly instituted at law when it should have been in a court of equity, the proper practice, in response to a motion for an instructed verdict for the defendant based on the ground that the plaintiff’s suit was in the wrong forum, is to discharge the jury, and to dismiss the case without prejudice to the right of the plaintiff to apply for relief to the proper equity forum.</p>

<p>Writ of Error to Circuit Court for Duval' County; George Couper Gibbs, Judge.,</p>

<p>Appeal from Circuit Court for Alachua County; Jas. T. Wills, Judge.</p> <p>■Taylor, J., took no part herein.</p> <p> Statement. </p> <p>This is a suit in equity brought by Lucy B. Abbott as administratrix cwm testamento annexo• of the estate of Margaret E; L. Abbott, deceased, against William B. Phifer, individually, and William B. Phifer as executor of the last will and testament of Sallie J. Perry, deceased, and others for the enforcement of a mortgage lien upon certain described real estate. The bill of complaint was amended several times, by leave of court, so that finally the bill reads as follows :</p> <p>“Your oratrix, Lucy B. Abbott, as Adminstratrix cum testamento annexo of the estate of Margaret E. L. Abbott, deceased, of the County of St. Johns and State of Florida, complainant herein, brings this her Amended Bill of Complaint against William B. Phifer, individually and William B. Phifer as executor of the last will and testament of Sallie J. Perry, deceased, of Alachua County, Florida, A. B. Zetrouer of Alachua County, Florida, J. R. Zetrouer of Alachua County, Florida, E. G. Brown of Alachua County, Florida, J. W. Crosby of Marion County, Florida; Kelly McDonald Lumber Company, a corporation under the laws of the State of Florida; J. D. Pope of Marion County, Florida, and James Holder of Citrus County, Florida, partners doing business under the firm name and style as J. D. Pope and Company; and Arthur Williams of Marion County, Florida, and L. J. Knight of Marion County, Florida,' partners doing business under the firm name and style as Williams and Knight, defendants.</p> <p>“And thereupon your, oratrix complains and says, that on the fourth day of August, A. D. 1883,.Martha P. Perry was justly indebted to Margaret S. Abbott in the sum of Thirty Five Hundred Dollars ($3500) lawful money of the United States of America, and there and then in the County of Alachua, State of Florida, made and delivered unto the said Margaret S. Abbott her promissory note, in writing, bearing date the fourth day of August, A. D. 1883, whereby the said Martha P. Perry, three years after date, for value received, .promised to pay to Margaret S. Abbott or order Three Thousand Five Hundred Dollars with interest from date at the rate of ten (10) per cent per annum until paid, interest payable annually, as. will more fully appear by the said note ready to be produced in court and by the copy of the same herewith filed and marked Exhibit ‘A’ and made a part of this your oratrix’s bill of complaint. And that the said Martha P. Perry to secure the principal sum and interest mentioned in said note did, at the same time, execute under her hand and seal and deliver unto Margaret S. Abbott a mortgage deed upon and to the lands hereinafter described, which said lands the said Martha P. ferry was seized of in fee simple.</p> <p>“And thereupon your oratrix says that on the said 4th day of August, A. D. 1883, the said Martha P. Perry conveyed to the said Margaret S. Abbott, in fee simple, the following described lands, with its appurtenances, situated in the county of Alachua, State of Florida, and better described as Section Thirty-two in Township Ten (10) South of Range Twenty-one (21) East, containing-Five Hundred and Fifty-nine (559) acres of land more or less. That said mortgage deed was made subject, however, to a condition of defeasance as follows: ‘Provided always nevertheless, and this instrument is executed and delivered upon this expressed condition, that if I, the said Martha P. Perry, shall do well and truly pay or cause to be paid the full amount of the said promissory note for the sum of Three Thousand Five Hundred Dollars, together with all annual.interest thereon to accrue according to the legal tenor and effect of the said promissory note and the principal thereof at the time the same falls due then this instrument to become wholly nulled and void, otherwise to be and remain in full force and virtue.’ That said mortgage deed duly executed and acknowledged, was by the said Martha P. Perry delivered unto the said Margaret S. Abbott.on the 4th day of August, A. D. 1883, and on the 4th day of August, A. D. 1915, was filed for record and recorded same day in Mortgage Book ‘F’ at pages 657-658 -in the public records of Alachua County, Florida, by the Clerk of the Circuit Court of Alachua County, State of Florida; as appears by the said deed and its accompanying certificates of acknowledgments and record ready to be produced in court, and by certified copy thereof hereto- attached to this Bill of Complaint and marked Exhibit ‘B’ and made a part of this bill of complaint as fully as if the same had been recited in full and at leng'th in said bill of complaint.</p> <p>“Your oratrix further represents that -on the 5th day of January, A. D. 1886, the said Martha P. Perry did make, execute, sign and seal and deliver unto her daughter Sallie J. Perry a certain quit claim deed unto said Section Thirty-two (32) Township Ten (10) South of Range Twenty-one (21) east and other lands, which said quit claim deed was filed for record January 6th, 1886, and recorded in the Public Record Alachua County, Florida, on January 8th, A. D. 1886, by Clerk of Circuit Court for said Alachua County, Florida. Which said deed was duly and.- legally executed and acknowledged.</p> <p>“That the said Martha P. Perry, in the month of April, A. D. 1886, died leaving no- will but left her daughter said Sallie J. Perry as her sole heir, who immediately went into- possession of all of the lands and personal property left by her mother, said'Martha P. Perry, deceased.</p> <p>“Your oratrix further represents that Margaret S. Abbott, named in the note and mortgage, heretofore described and copies of which are attached to- this bill of complaint as Exhibits ‘A! and ‘B’ respectively, was one and the same person as Margaret E. L. Abbott, and that on July 21st, A. D. 1900, the said Margaret E. L. Abbott died leaving a will wherein and whereby Lucy B. Abbott, your oratrix herein, was named and is the sole heir, legatee of said Margaret E. L. Abbott, as more fully appears by copy of said Will hereto attached marked Exhibit ‘C, and that the said Lucy B. Abbott immediately upon the death of said Margaret E. L. Abbott went into the posession of all of the property left by her mother the said Margaret E. L. Abbott deceased, and became the owner of the note and mortgage described in this bill.</p> <p>“That at the time of the death of the said Margaret E. L. Abbott the estate of said Margaret E. L. Abbott was not indebted and .that said estate has not since and is not now indebted.</p> <p>“Your oratrix further shows and represents that in and by the Will of the said Margaret E. L. Abbott, a copy of which said Will is hereto attached and prayed to be made a part hereof, one John Starke was named as the executor,' that said John Starke has never qualified as executor under and by virtue of the Will of said Margaret E. L. Abbott, that the said John Starke is now deceased, and that no. other person or persons have managed or controlled any of the estate of said Margaret E. L. Abbott except your oratrix Lucy B. Abbott, the sole heir and legatee named therein; that recently, to-wit,. on the 1st day of July, A. D. 1914, the Will of the said Margaret E. L. Abbott was duly proven and probated and your oratrix, upon proper application was appointed administratrix cum testamento annexo to- administer upon the estate and effects of the said Margaret E. L. Abbott.</p> <p>“That the said Martha P. Perry in her life time paid at different times to' Margaret S. Abbott divers sums of money on said note and mortgage. That the following sums of money were paid to Margaret S. Abbott as interest on said note: One hundred seventy-five and no/ioo dollars from August 4th, 1883, to- February 4th, 1884; Interest was paid until Augxist 4th, 1884; One hundred seventy-five and 110/100 Dollars was paid as interest to February 4th, 1885 ;' Three hundred fifty and 110/100 dollars was paid as interest to' February 4th, 1886’; that on January nth, 1888, Sallie J. Perry paid as interest One hundred and 110/100 dollars, and on March 19th, 1888, another One hundred and no/ioo dollars, and on May 29th, 1889, Ninety-two and 12/100 dollars as interest ; in January, 1890, Sallie J. Perry paid as interest Ninety-seven and 08/100 dollars; on or about January 1st, 1890, Sallie J. Perry gave a note for Five hundred and no/ioo dollars being payable on January 1st, 1891, a copy of said note being attached to complainant’s Amended Bill of Complaint as complainant’s Exhibit ‘D’; that said note has never been paid to Margaret S. Abbott (being- the same person as Margaret E. L. Abbott) nor to Lucy B. Abbott as her sole heir, or to Lucy B. Abbott as Administratrix of the estate of Margaret E. L. Abbott; that on January 21st, A. D. 1890, Sallie J. Perry paid Two thousand and no/ioo dollars to be credited on the principal of the original note and mortgage herein sued on; that on January 26th, A. D. 1891, Sallie J. Perry paid One hundred and no/ioo dollars on account of interest on original note and mortgage;, in February, 1891, Sallie J. Perry sent Margaret E. L. Abbott check for Two hundred seventy-eight and no/xoo dollars which said Margaret E. L. Abbott applied on the principal of Five hundred and no/ioo dollars -note given by Sallie J. Perry in 1890; that on March 28th, 1892, Sallie J. Perry paid to- Margaret S. Abbott the sum of One hundred fifty and no/ioo dollars to be applied on interest on original note and-mortgage, and also made a one hundred dollar payment of’interest to said Margaret S. Abbott in September, A. D. 1893; that Sallie J. Perry on February 2nd, 1895, paid Lucy B. Abbott for Margaret S. Abbott one hundred and no/100 dollars as interest on said note and mortgage; that Sallie J. Perry paid Fifty and 110/100 Dollars October 9th, A. D. 1895, on account of interest on note and mortgage.</p> <p>“That since the last mentioned payment made by the said Sallie J. Perry on October 9th, 1895, as above stated, the said Sallie J. Perry has made no effort and has not paid to Margaret E. L. Abbott or to said Lucy B. Abbott, as sole heir-at-law of Margaret E. L. Abbott or as administratrix of the estate of said Margaret E. L. Abbott, deceased, or anyone for her, any interest on the balance of the principal of note dated August 4th, 1893, which same is secured by the mortgage herein sought to be foreclosed, or any interest on the balance of the principal of said note of January 1st, 1900, given as payment of interest on the interest .due on said original note and mortgage of. August 4th, 1883. But the said Sallie J. Perry has from time to time, in writing, by letters and notes, and-in person, promised to* pay to the said Lucy B. Abbott the said notes and mortgage, and said Sallie J. Perry has admitted by said letters that she owed the balance due on said notes and mortgage, and would sell her property or part thereof and pay the said notes and mortgage, and the 'said Lucy B. Abbott, relying on her assurances, from time to time, and thinking before said Sallie J. Perry died that she was without funds, but had land sufficient to pay said debt, as represented by the said note and mortgage, permitted her, the said ¡sallie J. Perry, to continue without payment of interest or the principal sum of said note and mortgage dated August 4th, A. D. 1883 except as hereinabove stated and also of the note for Five hundred and no/ioo dollars, except as hereinabove stated. That said Sallie J. Perry at divers times and up to and until her death on the 22nd day of February, A. D. 1911, admitted by letters in writing that she owed the said Lucy B. Abbott the balance on the notes and mortgage and the unpaid interest thereon, and did frequently say that she recognized that the debt was an honest debt and that she would pay it before she died or leave sufficient funds of hers to pay same upon her death, but she never paid said amount to Lucy B. Abbott, or anyone for her.</p> <p>“Your oratrix further shows unto your Honor that she, said Sallie J. Perry, has failed to pay said amount of note and mortgage and that Lucy B. Abbott, through her attorney E. N. Calhoun, filed a copy of said note and mortgage with said William B. Phifer as the executor of the last will and tesament of Sallie J. Perry, deceased, and with the County Judge of Alachua County, Florida, and that the said Executor, W. B. Phi-fer, and W. B. Phifer individually as the sole legatee and heir to said Sallie J. Perry, deceased, refused to pay the said note and mortgage or any part thereof,</p> <p>“That Sallie J. Perry, on the 22nd day of February, A. D. 1912, died at or near Rochelle, in the County of Alachua, State of Florida, apd left a last will and testament, proof of which said last will and testament was duly made on the 24th day of February, A. D. 1912, and recorded in the public records of Alachua County, Florida, by the County Judge of said County on the 27th day of February, A. D. 1912, and in said will said Sallie J. Perry devised and bequeathed unto William. B. Phifer, all of her property real, personal or mixed, and in said will nominated said William B. Phifer as the sole executor of said will, and that said William B. Phifer entered into immediate possession of said property.</p> <p>“That the said Martha P. Perry, Sallie J. Perry and W. B. Phifer, individually and as executor under the will of Sallie J. Perry, have not paid the said principal sum of Three thousand five hundred and no/ioo dollars, except as above set forth and there remains due and owing and unpaid to your oratrix on said principal sum One thousand five hundred and no/xoo dollars; the balance of the Five hundred and no/ioo dollars noté less the Two hundred seventy-eight and no/ioo dollars credited thereon, said balance being- Two hundred twenty-two and no/ioo dollars and there remains due and unpaid to your oratrix the sum of Two Thousand Nine Hundred and no/ioo Dollars as interest on the balance of the principal of the original note. That although said amounts have long since become due, by means whereof the said mortgaged property has become forfeited subject nevertheless to the redemption in equity by the legal representatives of said Martha P. Perry, deceased, said Sallie J. Perry, deceased, and of their heirs and assigns.</p> <p>“Your oratrix further shows unto your Honor that the said Sallie J. Perry did by warranty deed for the month of November, A. D. 1889, sell and convey to on,e A. B. Zetrouer the northwest quarter of the northwest quarter of section thirty-two, in township ten (10) south of range twenty-one (21) east, which said land is subject to the mortgage of August 4th, 1883. Said deed to said Zetrouer is of record in the public records of Alachua County, State of Florida, in deed book 50, page 255, filed and recorded 11-7-1899-11-11-1899-, and your oratrix says that said Zetrouer has never paid to her or to- any one for her -any of the interest or principal on said note or mortgage.</p> <p>“And your oratrix further shows that Sallie J. Perry, deceased, and one J. R. Zetrouer did by a writing recorded in the public records of Alachua County, Florida, in miscellaneous book 2, at page 15, filed and recorded 12-17-1903, convey timber on section 32-10-31 east to Kelly-McDonald Lumber Company, a corporation under the laws of the State of Florida, which said conveyance was made subsequent to the execution of the mortgage and note of August 4th, A. D1. 1883, and is subject to the lien thereof.</p> <p>“And your oratrix further shows that one E. G. Brown of Alachua county, a defendant herein, made and executed a lease to one J. W. Crosby, of Marion County, Florida, which said lease is recorded in the public records of Alachua County, Florida, and which said lease is incorporated in a warranty deed from E. G. Brown to J. W. Crosby, and is recorded in book 51 pag-e 383 of the Public Records of Alachua County, Florida, filed for record March 1st, 1900, and recorded on March 24th, 1900; the lands attempted-to be sold and leased in said instrument of Section Thirty-two, Township Ten, Range Twenty-one East, which said instrument was made subject to the mortgage and note of August 4th, A. D. 1883, and subject to lien thereof.</p> <p>“And your oratrix further shows that Sallie J. Perry did by a written turpentine lease recorded in the public records of Alachua County, Florida, in Miscellaneous Book ‘2,’ at page 250, filed and recorded by the Clerk of the Circuit Court of said County 6-20-1905, 7-25-1905, convey by lease section thirty-two (32), township ten (10) south of range twenty-one (21) east, to Arthur Williams of Marion County, Florida, J. D. Pope of Marión County, Florida, and James Holder, of Citrus County, Florida, partners doing business under the firm name and style of J. D. Pope and Co., which said instrument was made subsequent to- the execution of the mortgage and note dated August 4th, 1883, and is subject to the Hen thereof.</p> <p>“And your oratrix further shows that Arthur Williams and J. L. Knight both of Marion County, Florida, partners doing'business under the firm name and style as AVilliams and Knight claim to have interest in the land sought to be foreclosed herein, which said interest is to your oratrix unknown. But your oratrix says that whatever said interest may be that the same has accrued since the execution of the note and mortgage dated August 4th, A. D. 1883, and is subject to the lien thereof.</p> <p>“Forasmuch, therefore, as your oratrix is without remedy in the premises, save in a court of equity, and to the end that the defendant to this bill may be required to make’full and direct answer to same, but not under oath, the answer under oath being hereby specifically waived • and that an account may be taken of what is due your oratrix on the principal and for interest on said note and mortgage, and the costs, charges and exper&e of this suit. That the defendants William B. Phifer, individually, and William B. Phifer as the executor of the last will and testament of Sallie J. Perry, deceased, and A. B. Zetrouer may be decreed to pay your oratrix the amount due on the principal and interest on sajd note and mortgage upon the taking of said account, together with the taxes, insurance, costs, charges and expenses of this suit, including reasonable attorney’s fees, by a short day to be fixed by this court; that in default of such payment the mortgaged premises may be sold as the court may direct to1 satisfy such debt and costs and that in case of such sale the said defendants William B. Phifer individually, and William B. Phifer as the executor of the last will and testament of Sallie J. Perry, deceased, and A. B. Zetrouer, J. R. Zetrouer, E. G. Brown, J. W. Crosby, Kelly-McDonald Lumber Company, a corporation under the laws of the State of Florida, J. D. P’ope, Arthur Williams and James Holder, co-partners doing business under the firm name as J. D. Pope and Company, and Arthur Williams and L. J. Knight, partners doing business under the firm name and style as Williams & Knight, defendants, and all per- - sons claiming by, through or under them subsequent to the execution of this mortgage sought to be foreclosed, and all other persons, although not parties to this suit, who may have any liens by judgment or decree subsequent to1 the mortgage held by your oratrix, may be barred and foreclosed of all right or equity of redemption, and claim, of, in and to said mortgaged premises and every part and parcel thereof with the appurtenances; that a Special Master may be appointed to find and take an amount due your oratrix as principal and interest on the note and mortgage aforesaid and the costs, charg-es and expenses of this suit, including reasonable attorneys’ fees, ¿nd tha#your oratrix may have such other and further relief in the premises as the nature of the case may require.”</p> <p>Then follows the prayer for process. We do not copy the exhibits attached to the bill.</p> <p>To the bill as finally amended, William B. Phifer individually and as executor, interposed the following- demurrer :</p> <p>“This defendant by protestation not confessing any or all of the matters and things of the complainant’s Amended Bill of Complaint contained tO' be true in such manner and form as the same is therein set forth and contained, doth demur to said Bill and for causes of demurrer showeth:</p> <p>“i. It appears from the Bill that Martha P, Perry conveyed the property embraced in the Mortgage to Sallie J. Perry on the 5th of January, 1886; and that Sallie J. Perry has held the property for more than twenty (20) years since the maturity of the Note and Mortgage sued upon under claim and color of title.</p> <p>“2. The Note and Mortgage sued upon appearing from the allegations of complainant’s Amended Bill to have matured more than twenty (20) years before the filing of the saidAmended Bill in this case, both the Mortgage and Note are barred by the Statute of Limitations.</p> <p>“3. Because it appears in and by the allegations of complainant’s Bill that Martha P. Perry, the mortgagor, has been dead more than ten (10) years before the commencement of this suit and the filing of this Bill, and no proceedings were had or taken herein within ten (10) years after the death of said Martha P. Perry.</p> <p>“4. Because this is a stale demand, and not enforceable in a Court of Equity.</p> <p>“5. It does not appear in and by the allegations of complainant’s Bill that there was any waiver of the Statute of limitations, eitliér on the part of Martha P. Perry or on the part of Sallie J. Perry, as would revive the right of action against Sallie J. Perry, or the defendant as the legal representative of the estate of Sallie J. Perry, or as the devisee under the Will of Sallie J. Perry.</p> <p>“6. Complainant does not set forth or allege a new promise in writing, either on the part of Martha P. Perry or Sallie J. Perry, as would revive the cause of action against thé estate of Sallie J. Perry, deceased, or the devisee under her Will.</p> <p>“7. Complainant seeks to recover from this defendant for'a promissory note given-on January 1st, 1890, that matured January 1st, 1891, which appears upon the face of the Bill to have been given as an independent payment on the Mortgage sued upon, and there is no provision in the Mortgage for the securing of said Five Hundred ($500.00) Dollars; but under the law the taking of said Note by the mortgagee was a payment and discharge of that amount of money so far as the lien of the Mortgage was concerned.</p> <p>“Wherefore, for divers other good causes of Demurrer appearing in the said Amended Bill of Complaint, the defendant doth demur thereto, and humbly demands the judgment of this court whether he should be compelled to make any other-or further answer to said Bill, and prays to be hence dismissed with his costs and charges in this behalf most wrongfully sustained.”</p> <p>This demurrer was, overruled, from which interlocutory order Phifer, both individually and as executor, has entered his appeal.</p>

<p>1. Equity will reform a written instrument where because of mutual mistake it does not contain the true agreement of the parties only where the proof is full and satisfactory as to the mistake.</p> <p>2. The allegations of a bill for the reformation of an instrument should be clear and specific as to the mistake claimed to have been made by the parties to the instrument.</p> <p>3. Whether a mortgage executed by a married woman jointly with her husband to secure a debt' of the latter may be reformed upon the testimony of her husband or the creditor, questioned in view of the provisions of Section 1, Article XI, of the Constitution of Florida, 1885.</p> <p>4. Evidence examined and found insufficient to sustain the allegations of the bill as to a mistake of the parties concerning the description of lands contained in a mortgage.</p>

<p>Alternative writ denied.</p>

<p>1/ In determining whether error was committed in directing a verdict, due consideration should be given- to the organic right of trial by jury. Otherwise fundamental principles may be subordinated to procedure or convenience.</p> <p>2. The considerations and legal principles that guide the judicial discretion in directing a verdict, and in granting a new trial on the evidence are not the same.</p> <p>3. In directing a verdict, the court is governed by practically the same rules that are applicable in demurrers to evidence.</p> <p>4. A party in moving for' a directed verdict admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.</p> <p>5. It is reversible error to direct a verdict for one party when there is substantial evidence tending to prove the issue upon which the jury could lawfully find a verdict for the opposite party.</p> <p>6. Where different conclusions may fairly be drawn from the evidence as to whether an employee driver of an automobile was acting within the express or implied authority of the defendant employer at the time his . alleged negligence caused the injury complained of, the evidence should be submitted to the jury under appropriate instructions.</p> <p>7. Where with the acquiescence of the employer an employee while engaged with the employer’s automobile in the' general line of his authority uses the automobile for his own purposes, and while doing so injures one on the street, the jury should be permitted to determine under appropriate instructions whether the defendant employer is liable.</p>

<p>1. Action taken pursuant to a statute must accord with the provisions of the Statute, and must not conflict with the requirements of organic law.</p> <p>2. The intent of a statute is the gist of the enactment, and a material disregard of the statutory intent is a violation of the substance of the enactment.</p> <p>3. Where a statute merely authorizes the formation of a taxing district through action taken by persons or officials, the statutory intent should be observed in substance, and the legality and reasonableness of the action taken under the statute are subject to judicial review.</p> <p>4. A statute does not contemplate an unreasonable exercise of authority conferred by it, particularly when the taxing power and material property and personal rights are involved.</p> <p>5. A purpose of the statute authorizing Special Road and Bridge Districts to be formed in counties is to avoid unfair tax burdens upon persons and property so rempte from roads constructed by general county taxation as to receive no advantage therefrom commensurate to their tax contributions for such purposes.</p> <p>6. The statute authorizing the formation of Special Road and Bridge Districts in a county, contemplates the formation of districts with some fair reference to the advantages accruing therefrom to the persons and property bearing the tax burdens assumed for the construction and maintenance of such roads and bridges.</p>

<p>1. In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon 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. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.</p> <p>2. While the legal effect of evidence is a question of law to be passed upon by the court when properly presented, the credibility and probative force of conflicting testimony are for the determination of the jury.</p> <p>3. The answer of a witness on cross-examination respecting any fact irrelevant to the issue will be conclusive, and no questions relating to facts irrelevant to the issue can be put on cross-examination merely for the purpose of impeaching the credit of the witness by contradicting him.</p> <p>4. In a prosecution for murder, objections'interposed to questions propounded on the direct examination of a witness are properly sustained, when such questions seek-to elicit information from the witness as to the distance between the defendant and the deceased when the fatal encounter took place and as to how far from the deceased a certain designated track was, and it has been made to appear from the examination of such witness that he was not present at the tragedy, but had visited the place thereof after it had occurred and saw tracks there, and that all the information which the witness possessed as- to the distance between the defendant and the deceased at the time of the shooting and as to the identity of the tracks which the witness saw was derived from statements made to the witness by the defendant and others. Browne, C. J. and Taylor, J., dissent.</p> <p>5. Applications for new trial upon the ground of newly discovered evidence are looked upon by the courts with distrust and disfavor, and are granted only under the following restrictions: (1) The evidence must have been discovered since the former trial; (2) the party must havej used due diligence to procure it on the former trial; (3) it must'be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (S) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits. The party applying must make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that he might, but for the negligence, have known of and produced it, he will not succeed in his application.</p> <p>6. In passing- upon a motion for a new trial upon the ground of newly discovered evidence, even if it can be properly assumed that the affidavits of the defendant and his attorneys show that they had used due diligence to procure the newly discovered evidence on the former trial, that it is material to the issue and that it can- be said to go to the merits of the cause, if it is not of such a nature that it ought to produce on another trial an opposite result on the. merits, and if it is merely cumulative, such motion is properly denied. I</p> <p>7. Where newly discovered testimony runs simply to the matter of threats, and only tends to make more emphatic and clear what is already plain by the testimony, that the parties at the time of meeting were enraged against each other, held, that the court did not err in refusing a new trial 'on this ground.</p> <p>8. Error cannot be assigned of the judge’s failure to charge upon any question of law unless the party desiring it shall have requested charges thereon.</p> <p>9. Evidence examined and found sufficient to 'support the verdict.</p>

<p>Where in a criminal prosecution for rape there is ample evidence to sustain the verdict and the rulings in admitting and rejecting testimony could not have been harmful in view of the entire proceedings, technical errors, if any, will not warrant a reversal of the judgment of conviction.</p>

<p>1. Where a recovery is sought in damages against a railroad corporation by one who as a passenger sustained injuries resulting from the negligent operation of the trairi and that a disease affecting his nerves was superinduced' by the physical injuries sustained in the railroad accident, it is incumbent upon the person seeking compensation in damages to show with reasonable certainty that the diseasecl nervous condition from which he suffers resulted from the injuries sustained in the railroad accident.</p> <p>2. A hypothetical question propounded to a physician as to whether a diseased nervous condition of the plaintiff resulted from a certain, railroad accident, should embrace what, if any, physical injury the evidence tended to show the plaintiff sustained in such accident.</p> <p>.3. A hypothetical question improperly framed, but allowed over proper objection, does not constitute reversible error, if the person to whom it is directed admits his inability to answer the question as framed.</p> <p>4. Where it appears from the evidence that a verdict for damages is excessive and the evidence does not disclose the extent of the injuries actually sustained, nor their consequences, a judgment based upon such a verdict will be reversed.</p>

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

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

<p>1. It is the duty of counsel for appellee or defendant in error to . file in this court a brief, maintaining the correctness of the proceedings and judgment of the trial court.</p> <p>2. An application for the continuance of a cause is always addressed to the sound discretion of the court, and must be left to the tribunal which has the parties before it, and who must determine from a variety of circumstances occurring in its presence whether such applications are made in good faith.</p> <p>3. In deciding upon the sufficiency of an affidavit for continuance, no presumption favorable to the applicant is to be indulged.</p> <p>4. An appellate court will not reverse a judgment because the trial court denied a motion for a continuance of a cause, unless there has been a palpable abuse of discretion by the trial court, to the detriment of the party applying for the continuance, clearly and affirmatively shown by the transcript o.f the record.</p>

<p>It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. This principle applies to all bills in equity, but is. especially applicable to bills seeking an injunction, the rule being that the title or interest of the complainant and the facts upon which he predicates his prayer for such relief must be stated positively, with clearness and certainty. T.he bill must state facts and not opinions or legal conclusions.</p>

<p>1. The law will engraft a trust upon an absolute and unconditional deed where there is fraud, actual o.r constructive, in the transaction.</p> <p>2. In order to engraft a trust upon an absolute and unconditional deed, the proof must be so cleax-, strong and unequivocal as to remove every reasonable doubt as to the existence of the trust.</p> <p>3. Where it is claimed that a widow who buys real estate and takes an absolute and unconditional deed in her own name, holds the lands in trust for her deceased husband’s heirs by reason of a prior contract between him and her grantor for the purchase of the property conveyed to her, the proof of the existence of such contract and its terms and conditions must be as strict as is required by the rule in this State to establish a resulting or constructive trust, 'and the statement of a witness of his conclusion that there was such a contract, without stating all the facts which are essential to create a valid contract, is not sufficient to defeat the deed.</p> <p>4. The quantity and proportionate interest of the p'arties in a partition suit is not determined by what they claim, but by what the testimony proves they are legally entitled to. The question of the interests of all the parties must be adjudicated by the court, and a mistake on the part of a party to the suit as to what his interest is, will not bar his being decreed what he is entitled to, even if he remains passive and abstains from making.any answer.</p>

<p>1. A stipulation in a mortgage to secure several notes that should any one of the notes or any part thereof or any part of the interest thereon remain due and unpaid for thirty days, then the whole balance of the principal and interest shall become due and payable at the option of the mortgagee, authorizes foreclosure proceedings for the entire debt secured, where one of the notes and interest thereon were past due and payble more than thirty days when the option of the mortgagee is exercised by bringing suit.</p> <p>2. Multifariousness goes to convenience more than to merits; and when there is a general demurrer for want of equity, a ground of demurrer for multifariousness may not avail if there is equity in the bill. ,</p> <p>3. A demurrer which is addressed to the entire bill must be treated as a general demurrer and should be overruled if, there is any equity in the allegations of the bill, even though. there are grounds of the demurrer which might prevail if the same were incorporated in a special demurrer, wihch was directed to the vulnerable parts of the bill.</p>

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

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

<p>In an action of ejectment a showing that the defendant in possession purchased the property at a public sale and has paid the purchase price, is a good defense even though a deed of conveyance had not been made to the purchaser.</p>

<p>Peremptory writ awarded.</p>

<p>1. Each party to a trial at law has a right to have the court instruct the juiy as to the law applicable to the facts in evidence introduced under the issues as made by the pleadings.</p> <p>2. In charging the jury the court should state to them the issues made by the pleadings and it is error simply to refer the jury to the pleadings to ascertain the issues.</p>

<p>1. In passing upon an assignment based upon the overruling of a demurrer to a bill iii equity, an appellate court will consider Only such grounds of the demurrer as are argued before it, treating the other grounds as having been abandoned.</p> <p>2. In passing upon a demurrer to tfoe whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer.operates as an admission, that all the allegations in the bill which are well pleaded are true, and a demurrer to the whole bill should be overruled .if the bill makes any case for equitable relief.</p> <p>3. Matters dehors the bill cannot be raised by way of demurrer but must be raised by way of plea or answer.</p> <p>4. A demurrer to the whole bill should be overruled, if the bill makes any case for equitable relief.</p> <p>5. Though the allegations of a bill of complaint be abstract and general, and largely in the nature of asserted conclusions, yet if under the allegations a case entitling the complainant to relief as prayed can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.</p> <p>6. Every presumption is in favor of the correctness of an order or decree rendered by a Circuit Judge, and the burden rests upon one appealing from such order or decree to overcome this presumption of law.</p>

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

<p>1. The entry of a final judgment by the clerk of the court under , the provisions of Section 1425 of the General Statutes of Florida, 1906, presupposes the entry of a valid default against the defendant for want of an appearance, demurrer or plea.</p> <p>2. A motion by defendant in a civil action for compulsory amendment of the declaration or to strike it, filed before the rule day on which he is required to plead or demur to the declaration, and which motion is not frivolous upon its face, but presents questions affecting the plaintiff’s right to proceed with the cause, suspends the power of the clerk under Section 1422 of the General Statutes, 1906, to enter a default against the defendant for- failure to plead or demur.</p> <p>3. A motion by defendant to strike the declaration or for compulsory amendment of it, which is pending and undisposed of upon the rule day when under the statute he is required to plead or demur, may not be ignored by the plaintiff and a default taken unless the motion is frivolous and wholly without merit and such an one that a determination of it either way could not affect the right of the plaintiff to proceed with the cause.</p>

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

<p>Where the charges given accord with the evidence and the law applicable thereto, and there is ample evidence to sustain the verdict, technical errors, if any, in giving or refusing instructions to the jury, or in other proceedings, will not cause a reversal of the judgment, no material errors appearing.</p>

<p>Where the findings of a Master are challenged on the ground that notice of the hearing was not given, and it appears that under the circumstances of the case due and reasonable notice was not given, the decree rendered on the Master’s finding will be reversed.</p>

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

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

<p>Writ of Error to Circuit Court for Jackson County; Cephas L. Wilson, Judge.</p>

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

<p>1. At the hearing upon a plea in equity and a general replication, no fact is in issue, but the truth of the matter pleaded.</p> <p>2. Where at the hearing in equity upon a plea and a general replication, the plea, as pleaded, is not supported by the testimony, it must be overruled, and the defendant ordered to answer the bill.</p> <p>3. Under Equity Rule 51 the right of the defendant to answer the bill of complaint is not a mere formal or technical right, but-it confers authority to answer the bill as provided in the rule which is a substantial and duly prescribed right that cannot be lawfully taken from a defendant except by due course of procedure.</p> <p>4. A defendant has a right to answer after an issue of fact, joined on a plea, has been determined against him.</p>

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

<p>Writ of Error to Circuit Court for Jackson County; Cephas L. Wilson, Judge.</p>

<p>Under the provisions of Section 1496 of the General Statutes of 1906, as amended by Chapter 6320 of the Laws of Florida, (Acts of 1911, p. 191), a verdict is properly directed for the defendant, when it is apparent to the Judge of the Circuit Court, after all the evidence shall have been submitted on behalf of the plaintiff in a civil case, that no evidence has been submitted upon which the jury could lawfully find a verdict for the plaintiff.</p>

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

<p>Writ of Error to Circuit Court for St. Johns Count)''; George Couper Gibbs, Judge. •</p>

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

<p>Writ of Error to Circuit Court for Jackson County; Cephas L. Wilson, Judge.'</p>

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

<p>Writ of Error to Circuit Court for Okaloosa County; Cephas L. Wilson, 'Judge.</p>

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

<p>1. On writ of error taken under the statute to an order granting a new trial in a civil action at law the only questions to be considered are those involved in the order granting a new. trial.</p> <p>2. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it.</p> <p>3. Where the trial court grants a new trial containing several grounds without stating any ground upon which the ruling' was based, the order will be affirmed if any ground of the motion is sufficient to authorize the granting of the new trial. And it must be assumed that the court based the order on the grounds that warrant it.</p> <p>4. Where a new trial is granted, and there is such a conflict in the evidence that this court cannot say the trial judge abused his discretion in granting such new trial, his ruling will not be disturbed.</p> <p>5. Where the evidence on a material issue in a' cause is conflicting, and it does not so preponderate in favor of the verdict as to show an abuse of discretion or the violation of any provision or settled principle of láw in granting a new trial, the action of the trial court will not be disturbed on writ of error.</p> <p>6. There are so many matters occurring in the course and progress of a judicial trial that, in the opinion of the judge who tried the case, may affect the, merits and justice of the cause to the substantial injury of one of the parties, that of necessity a large discretion should be accorded to the trial court in granting a new trial, to the end that the administration of .justice may be facilitated; and the appellate court will no.t reverse an order granting a new trial, unless it clearly appears that a judicial discretion has been abused in its exercise, resulting in injustice or that the law has been, violated.</p> <p>7. A trial court should not direct a verdict for one party where there i& evidence that would legally support a verdict for the opposite party, for the reason that the parties are entitled to a jury trial of the issue of fact presented. But a party against whom a verdict is rendered is also entitled to the benefit of the judgment of the trial court on the justice as well as on the legality of the verdict rendered.</p> <p>8. Although a motion for a directed verdict for one party may be denied, yet in the same case if the trial court is of opinion that the verdict does not accord with the manifest weight of the evidence and the substantial justice of the cause, a nev trial should be granted if duly made. 1</p> <p>9. While the legal sufficiency of the evidence to support the verdict for one party will make a directed verdict for the othei party improper, yet the mere' legal 'sufficiency of the evidence to support a verdict rendered will not preclude the trial couri from granting a new trial where the verdict does not do substantial justice in the cause or is against the manifest weight • and probative effect of the evidence.</p> <p>10. Trial courts have much more latitude of discretion in granting new trials on the evidence than have the appellate court; and the trial courts should exercise this discretion so as to facilitate the administration of justice.</p> <p>11. The right of parties to have the trial court review the verdict with reference to the evidence is consistent with the right to a jury trial. If a new trial is granted, it merely gives the righl to present the issues in the case to another jury for determination. This is a means afforded by law for the correction of any injustice that may be done by a verdict found, without the delay and expense of appellate proceedings. ’</p> <p>12. The statute authorizes a writ of error to an order granting a new trial;'and by this means if the trial court abuses its discretion in granting a new trial when in law the evidence requires the verdict to be as found, such abuse may be corrected by the appellate court.</p> <p>13. The action of the trial court in granting a new trial will not be reversed by the appellate court unless some settled principle of law has been violáted or a plain case of abuse of discretion is shown, the presumption in all cases being that the trial court properly granted a new trial.</p> <p>14. A party litigant in a common law action has in general a right to a verdict: of a jury, and also to a review of the verdict by the trial court.</p> <p>15. Where a motion for new trial is duly made, the party making it is entitled to the benefit of the judicial opinion of the trial judge thereon. If upon a motion for new trial duly made the trial judge is of opinion that there is difficulty in reconciling the verdict with the justice of the case and the manifest weight of the evidence, a new trial should be granted.</p>

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

Writ of Error to Circuit Court for Jackson County; Cephas L. Wilson, Judge. Statement. On May 17th, 1915, defendant in error brought suit in the Circuit Court of Jackson County against the Palatine Insurance Company. The declaration is in the statutory form, on a fire insurance policy. The. defendant filed eight pleas. The first plea charges a breach of rVhat .is known as “The Iron Safe” clause, in that plaintiff did not take inventories as provided for in the policy.

<p>1. The drainage and reclamation of swamp and overflowed lands are a proper exercise of legislative authority.</p> <p>2. The legislature, unless restricted by constitutional limitations, may establish ■ districts for draining and reclaiming large bodies of swamp and overflowed lands in the State by direct enactment, or through the medium of administrative officers or commissions.</p> <p>3. No duly enacted statute should' be declared unconstitutional unless, beyond a reasonable doubt, it is in positive conflict with some designated or identified provision of .the Constitution.</p> <p>4. A local or special charge or tax imposed on land in a Drainage District to pay for proposed local public improvements therein, by which such property derives a special benefit, constitutes a Special Assessment, distinct from general taxation for Stafe, county and municipal purposes.</p> <p>5. There is no express provision in the State Constitution as to Special Assessments for local improvements or as to the formation of taxing districts for particular purposes.</p> <p>6. When a statute does not violate the federal or State Constitution, the legislative will is supreme and its policies are not subject to review by the courts, whose province, it is not to regulate, but to effectuate the policy of the. law as expressed in valid statutes.</p> <p>7. The enactment of Chap. 6456 of the Laws of Florida, and the amendment thereto, establishing the Everglades Drainage District, being a valid exercise of the legislative power, the duties imposed upon certain county officers in carrying out the provisions of such enactments, being of the same nature as their general official duties, as well, also, as their compensation provided in such enactments, are a mere incident to, and the necessary concomitant with the exercise of the power of the legislature to establish such District and to effectuate the purposes for which it is established.</p> <p>8. Chap. 6456 of the Laws of Florida, as amended by Chap. 6957, establishing the Everglades Drainage District and providing for Special Assessment of taxes on land embraced therein, is not in conflict with Sec. 20, Art. Ill of the Constitution providing that “the legislature shall not pass special or local laws in any of the following enumerated cases: that is tc say regulating the jurisdiction and duties of any class of officers, except municipal officers, * * * for assessment and collection of taxes for state and county purposes, * * * regulating the fees of officers of the State and county.”</p> <p>9. A general tax or Special Assessment must be uniform, in that it must be imposed upon the land subject to such charges so that the burden on every parcel thereof will bear a just proportion to that imposed upon all the other parcels similarly situated and included within the assessment provisions</p> <p>10. It is within the legislative power to establish, directly, a drainage district for legitimate public purposes, to divide the lands in such districts into classes and fix the actual amount of Special Assessments placed at a level rate,. founded upon a unit of area, which rate is equal and uniform as to the lands in each class, but varies as to the classes, unless the language em-1 ployed in the legislative act makes it manifest- that the legislature did not intend to distribute the burden on the lands in porportion to the benefit it would in the legislative judgment receive from the proposed drainage system. Such enactment does not violate the Constitutional requirements for a uniform and equal rate of taxation and that the legislature shall prescribe such regulations as shall secure a just 'valuation of property for taxing purposes.</p> <p>11. Sections 2, 3 and 5 of Art. IX of the State Constitution, apply only to general taxation for State, county and municipal purposes and have no ’ application to Special Assessments for local improvements.</p> <p>12. The provision of Chapter $456 of the vlaws of Florida, as amended by Chapter 6957, that the revenue derived from the Special Assessment thereby imposed .shall be set aside and especially appropriated to carry out the particular purposes stated in the Acts, is in effect an appropriation made by law; and such provision is not in conflict ’with Sec. 4, Art. 12 of the Constitution providing that no money shall be drawn from the Treasury except in pursuance of appropriations made by law. . J</p> <p>13. If the title of an Act expresses its subject with sufficient certainty to give reasonable notice of the purposes dealt with by such Act and of its scope, and reasonably leads to inquiry as to its contents, it is sufficient. The title need not be an index to the Act.</p> <p>14. If a duly enacted statute contains unconstitutional provisions and such provisions may be eliminated and the remainder of the statute may be effective for the purposes designed, and will not cause results not intended by the Legisalture, and it does not appear that such statute would not have been enacted without the invalid portions, such invalid portions maj' be disregarded and the remainder of the statute enforced if by so doing the legislative intent may be lawfully carried out.</p> <p>15. The courts will not pass upon the constitutionality of an Act in a proceeding which does not involve the part of the Act claimed to be unconstitutional, if the part involved is complete and operative within itself.</p> <p>16. The action of the legislature in apportioning special assessments placed on lands in proportion to the benefits which, in the judgment of the legislature, such lands will receive from proposed local improvements to be paid for from the proceeds of such assessments, is within the legislative power and cannot be reviewed in the courts unless it is so devoid of any reasonable basis as to be essentially arbitrary and an abuse of power.</p> <p>17. When, in a duly established drainage district, a special assessment is imposed and the rate thereof apportioned on lands therein, by a direct exercise of the -legislative power, requiring no inquiry as to the weight of the evidence nor investigation in the nature of a judicial inquiry, then no notice to, or hearing of the owners of such lands on the question of whether or not the benefits to such lands will be in accord with the rates imposed thereon, is essential, under the constitutional provision that no person shall be deprived of property without due process of law.</p> <p>18. Chapter 6456 of the Laws of Florida as amended by Chapter 6957» making a direct legislative special assessment on lands embraced within the Everglades Drainage District for local benefits, and .the apportionment of rates thereon, is not in conflict with Secs. 1 and 4 of the Bill of Rights or of Sec. 29, Art. XVI of the Constitution, by reason of the failure of such statutes to provide for giving notice to the owners of such land of such assessment and apportionment or for an opportunity for them to be heard upon the merits thereof, th'e assessment and apportionment being made by direct legislative enactment, and not through administrative officers or otherwise.</p>

<p>1. Defenses in an equity case should be interposed at the proper time and if not the party who offers them at a late stage in the proceedings must abide the discretion of the court reasonably exercised as to whether they will be allowed.</p> <p>2. The trial court is clothed with broad discretion in the matter of allowing amendments to the pleadings in civil causes and * unless there is gross abuse of the discretion this court will not interfere with' its exercise..</p> <p>3. In a suit by a woman against her husband for maintenance under the provisions of Section' 1934 of the General Statutes of Florida, 1906, where the application of the husband made when nearly all the testimony had been taken, for leave to amend his answer by adding a paragraph charging the wife with adultery has been denied and the application is,supported by affidavits and other documents showing the alleged adulterous acts to have been committed thirty years before and othet affidavits tending to show indiscreet conduct at a later date, the refusal of the court to allow the amendment will not be disturbed as an abuse of the chancellor’s discretion.</p> <p>4. Under Section 1933 of the General Statutes of Florida, 1906, providing for the granting of alimony to a wife when any of the causes for divorce exist in her favor, a married woman cannot maintain her cause against her husband unless she has acquired a residence in this. State by actually living therein with the intention of permanently remaining and such residence has continued for two years next before the filing of the bill.</p> <p>5. Under the provisions of Section 1934 of the General Statutes of Florida, 1906, the wife may maintain a bill in equity against her husband for maintenance, where the legal residence or domicile of either of them is in this State, and such residence need not have been acquired two years before.</p> <p>6. Legal residence or domicile may be acquired by one who coming from another State or county actually lives in this State with the intention of permanently remaining here. In such case a domicile" by choice is established.</p> <p>7. Legal residence or domicile in this State of one whose domicile of origin is here or who may have established in this State a domicile by choice, is sufficient to give the court jurisdiction of the subject matter in a cause involving the duties and obligations arising out of his or her marital' status with another, and temporary absence from the. State even for a long period of years is not sufficient to divest the court of jurisdiction.</p> <p>8. Upon the question, whether a person has established a domicile by choice in another State or country, the court will en-quire whether such person not only lived in such other State or country, but whether the intention to permanently remain there was present when the removal occurred, or was entertained at • all, and upon the question of such intention the court will examine into the acts and declarations of the party whose legal residence is enquired about, and such evidence will be weighed as it is upon any other question.</p> <p>9. Where in a suit by a wife against her husband for maintenance under the provisions of Section 1934 of the General Statutes the question of the place of his legal residence becomes material, he may by certain conduct and declarations be estopped from asserting what his intention was in leaving the State or in living elsewhere.</p> <p>10. Where for the purpose of invoking the jurisdiction of the courts of this State in a suit against his wife for divorce, a husband alleges in a sworn bill of complaint that his domicile was in this Slate and had been for more than two years and that he had never changed it from this State, he will be estopped in a suit brought by his wife for maintenance in the same court shortly afterwards from denying the truthfulness of such allegations of the bill, in so far as they involve a declaration of his intentions concerning a change of domicile when he left the State or during the period that he lived elsewhere up to the filing of his bill of complaint.</p> <p>11. A foreign judgment upon a matter within the jurisdiction of the court rendering it and in which the court had jurisdiction of the parties, will be 'regarded as conclusive between the parties in this State, where there has been a trial upon the merits in the foreign court under a system of jurisprudence likely to secure impartial administration of justice, and there is no showing of prejudice on the part of the court or fraud in procuring the judgment and no special reason why the comity of this nation should not allow it full credit.</p> <p>12. The courts of this State will enquire into the merits of a for- ■ .eign judgment when the courts of the Country whose judgment is under consideration do not give effect to the judgments of the courts of this Country upon the same Subject.</p> <p>13. A judgment or decree of a court of the Republic of Cuba, purporting to annul a ceremonial marriage between the parties performed in that Country, upon the grounds that the parties at the time of such marriage were already husband and wife, construed to he an adjudication of the existence of the marital -status of the parties.</p>

<p>Writ of Error to Circuit Court for Franklin County; É. C. Love, Judge.</p>

<p>1. Applications for the enforcement of specific performance of contracts for the sale of real estate are addressed to the sound judicial discretion of the chancellor. Such discretion is controlled by the provisions and principles of law and equity applicable to the particular facts and circumstances; and unless it clearly appears that the chancellor has erred in his decree in refusing a specific performance, it will not be disturbed on appeal.</p> <p>2. The enforcement by a court of equity of a specific performance of a contract is not ,a matter of right in either party to such contract, but a matter for the exercise of a sound judicial . discretion by the court, and should only be exercised when a decree for specific performance would be strictly equitable as to all the parties under the facts as they exist.</p> <p>3. Improvements afford no independent ground for specific performance unless they are both valuable and permanent and are warranted by the contract.</p> <p>4. An enforcement in equity of the specific performance of a contract to convey real estate is not a matter of right except as such enforcement may be essential to the maintenance of a legal right to which the movant is clearly and equitably entitled.</p>

<p>Writ of Error to Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

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

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

<p>1. As a general rule, ordinary witnesses are required to confine their testimony to facts and are not permitted to give their opinions and conclusions; but to this rule there are certain exceptions, and as to whether or not the facts and circumstances testified to in a case are of such a nature as to warrant the admission of the opinions and conclusions must be largely within the discretion of the trial judge, and an appellate court should not interfere with the exercise of such discretion unless a clear abuse thereof is made to appear.</p> <p>2. Courts of justice exist for the administration and furtherance of justice, the object of a trial being to approximate justice as nearly as possible; and, unless it is made to appear to an appellate court that some injustice or wrong has been done a defendant in a criminal prosecution by permitting an ordinary witness to give his opinion or conclusion, such court will not interfere with the action of the trial court in admitting such testimony.</p> <p>3. If the jury may be fully equipped by the testimony of the facts and circumstances as detailed by an ordinary witness, in other words, if all the data may be exactly reproduced by testimonial words and gestures, an ordinary witness should not be permitted to give his opinion, it being the province of the jury to form opinions and draw conclusions from the facts and circumstances given-in evidence; but, where all the data cannot be exactly so reproduced, ordinary witnesses may, where justice requires it, be permitted to give their opinions in con- , nection with the facts upon which they are founded, in order ’that the jurors may be in a position to draw correct or proper conclusions therefrom.</p> <p>4. Opinions of ordinary witnesses based upon or derived from their observation or experience may be admissible in evidence in connection with component facts, when, from the nature of the subject under investigation, no better evidence can be obtained.</p> <p>5. Before an ordinary witness is permitted to give in evidence his opinion or conclusion concerning a matter he should be required to detail to the jury, so far as he is able to do so by testimonial words and gestures, all the facts and circumstances upon which his opinion is based, in order that the jury may have some basis by which to judge the value of the opinion;'it should be made to appear to the trial court that the subject-matter to which the testimony relates cannot he reproduced and described to the jury precisely as'it appeared to the witness at the time, and that the facts upon which the witness is called to express his opinion are such as men in general are capable of comprehending and understanding.</p> <p>6. A mere preliminary question to a witness is not open to obj ection.</p> <p>7. Where an answer to a question presénts evidence which is illegal or objectionable on any known ground, the proper practice is a motion to strike it,out and have the jury directed not to consider it, the movant specifying his objections to the evidence with like particularity as in objecting to questions.</p> <p>8. A non-expert witness in a criminal prosecution for murder, who has testified that he was a member of the coroner’s jury that held the inquest and that he made an examination of .the body of the deceased, may be permitted to testify that he saw no powder burns on the flesh.</p> <p>9. It is of the utmost importance that the jury should hear the testimony given by witnesses and when the trial judge is in doubt as to whether the jury can hear the testimony given by a witness, especially one of tender years, such judge may properly ask the jury if they can hear the testimony of the witness and, upon one of the jurors replying “not very well,” may direct the court reporter to read such testimony from his notes to the jury, and where, in response to a question from the trial judge, such witness states that his testimony as read was as he had given it, no error in having the testimony so read is committed.</p> <p>10. The trial judge may not be said to emphasize improperly the testimony of a witness because the witness is speaking in such a low tone that the judge, apprehending that the testimony might not be audible to the jury, several'times asked the jury if they could hear the witness and requested the witness to “talk up,” especially when the trial judge expressly states to the jury that his only purpose in so doing was in order that they might hear the testimony.</p> <p>11. If a question is propounded to a witness which tends to elicit improper testimony, it is the duty of the opposite party to object to it and obtain a ruling on his objection. If improper testimony is given in response to a proper question, the proper method of removing it from the consideration of the jury is a motion to strike it. If improper testimony is given in response to an improper question to which no objection is made, a motion to strike is the recognized mode of removing it, but in such a case the granting or refusing of the motion is in the sound discretion of the trial court, and an appellate court will not disturb such ruling, unless an abuse of discretion is shown.</p> <p>l¿. It is the province of the trial judge to determine whether or not an alleged confession made by a defendant in a criminal prosecution was freely and voluntarily made, and, in considering such question, such judge must determine the facts even upon conflicting evidence, and the appellate court, when called upon to review his ruling upon such evidence, must accord to his finding the presumption that it is correct, and refuse to disturb it, unless error in such ruling is clearly made to appear.</p> <p>13. In a prosecution for murder when the indictment charges and the uncontradicted proofs establish that the deceased came to her death from a wound inflicted by a discharge from a shotgun, no harmful error is committed in excluding the testimony of the defendant that the deceased, who was his wife and with whose murder he stood charged, had stated to him just previous to the time that her body was found that she had taken poison for the purpose of committing suicide, especially when the evidence further establishes that it was a practical impossibility for the deceased to have committed suicide by shooting herself.</p> <p>14. An appellate court will refuse to consider ah assignment of error which has no basis in the transcript of the record, as not being properly before it. ■</p> <p>15. In a prosecution for murder, an instruction requested by the defendant that has no basis in the transcript of the record will be held by the appellate court to have been properly refused, especially when the trial judge has fully instructed the jury in his' general charge upon the law of homicide in the different grades and what the burden was which rested upon the State.</p> <p>16. The safer and better practice is to have the record in a .criminal prosecution affirmatively show that the defendant was personally present at every step in or stage of. the trial, but it will be held by an appellate court to be sufficient if it > appears by necessary and reasonable implications from record entries that the defendant was present at all necessary “stages of the trial.”</p> <p>17. In a trial for murder, where it clearly appears from the transcript of the record that, on the application of the counsel for the defendant, the defendant then being present, the court directed a view by the jury of the second story of the county jail, that counsel for the defendant was present with the judge and jury during the view, during which it was discovered that the defendant was not present, whereupon the court ordered the jury to cease their view and immediately sent an officer for the defendant and, when the officer returned with the defendant, the view was resumed and continued, that no testimony was taken during the absence of the defendant, that no objection was made to the proceedings, and that nothing which could have been harmful to the defendant transpired during his absence while such view was -being taken, that the view effected no conflicts in the evidence, and that the evidence, without reference to the view, fully sustained the verdict, and no objection was made to the view proceedings until after the verdict, the judgment will not be reversed merely because the defendant was not present at the time when the juiiy began their view, but was not denied the privilege of being present.</p> <p>18. A judgment of conviction will not be reversed on writ of error even if technical errors were committed in rulings on the admissibility of evidence or in charges given or refused or in other matters of procedure, where the evidence of guilt is clear and ample and no fundamental rights of the defendants were violated, and it appears from the whole record that such technical errors, if any, were not prejudicial to the defendants.</p>

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

<p>1. In a prosecution for obtaining goods under false pretenses written instruments not relevant to the issue being tried are properly excluded on objection when offered in evidence.</p> <p>2. Where a charge is that the defendant with intent to defraud ■ did wilfully and falsely represent that he was the owner of a chattel exchanged for another chattel, it is not error to exclude evidence and to refuse a charge as to the defendant’s right to sell the chattel that was .in fact the property of another.</p> <p>3. It is not error to refuse a charge that is covered by a charge given.</p> <p>4. Where the evidence is ample to sustain a verdict that is not manifestly against the weight and probation force of the testimony and no prejudicial errors of law or procedure appear, the judgment will be affirmed.</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; H, Pierre Branning, Judge.</p>

<p>On an issue of failure of consideration in an-action on á promissory note, where there is some substantial evidence tending to prove the issue of failure of consideration, a verdict for the plaintiff should not be directed by the Court.</p>

<p>Where there is ample evidence to sustain a verdict and it is clear that errors, if any, in rulings were harmless to the party . complaining of them, and no material errors of procedure appear, the judgment will be affirmed.</p>

<p>Wher^e it appears that a bill of complaint contains equity, an order overruling a demurrer to the whole bill will be affirmed.</p>

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

<p>Under section 2211 General Statutes of 1906, a material man’s lien for material used in a building may be acquired in favor of one ■ not in privity with the owner of the property by serving a notice as to furnishing “lumber and other building material” to the contractor for the stated building.</p>

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

<p>Writ of Error to Circuit Court for Escambia County; A. G. Campbell, Judge.</p>

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

<p>Where there is ample evidence to sustain a. verdict, and it is clear that errors, if any, in rulings were harmless to the party complaining of them, and no material errors of procedure appear, the judgment will be affirmed.</p>

<p>1. In a criminal prosecution where the defendant interposes a challenge to the array of jurors, on the ground of unlawful discrimination in their selection or empaneling, on account of race, color or previous condition of servitude, the burden of proof is upon him to establish the charge.</p> <p>2. A challenge to the array of jurors on the ground of unlawful discrimination in their selection by the County Commissioners, is a serious charge, involving not only dereliction of duty, but violation of the Constitution of the United States, and such a charge in a matter in which the law presumes they legally discharged their duty, “should be duly, properly, directly and distinctly alleged, and if not admitted by demurrer or otherwise,” should be proven by very strong and convincing testir mony of witnesses of intelligence and unimpeachable integrity.</p> <p>3. The decision of the trial judge rendered after hearing the testimony, on issue joined on a challenge to the array of jurors on the ground of unlawful discrimination in their selection or empaneling, will not be disturbed unless the record discloses a condition from which tjiis court can infer that he did not give the matter proper consideration.</p>

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

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

<p>Where the complainant in a suit for alimony alleges that neither she nor the appellant is a resident of this State, she is not entitled to sue for alimony or maintenance in the courts of this State.</p>

<p>Where a ballot is so marked as to plainly indicate the voters choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.</p>

<p>1. The word “condition” is not necessary to the creation of an estate upon condition, if it plainly appears from the words used that the intent of the parties was to create an estate of that description.</p> <p>2. Where a covenant is dependant, the failure to perform it entitled the other party to the contract to rescission.</p> <p>3. In a contract for the sale of lands which contains a provision that “these presents are made and entered into partly in consideration thereof anything in this agreement to the contrary notwithstanding; that the vendor will construct and operate or cause to be constructed and operated on or before October, 1912, a line of railroad running approximately in a northerly and southerly direction through the body of land of which the aforesaid lands are a part; said line of railroad to be so constructed as to be within 10 miles thereof,” such proviso is a dependant covenant and upon the failure of the land company to comply with the same the vendee has the right to a rescission of the contract and the return to him of any amount which he may have paid on the same.</p> <p>4. To ascertain whether covenants are dependant or not, the intention of the parties is to be sought for and regarded rather than the order or time in which the acts are to be done or the structure of the instrument or the arrangement of the covenant.</p> <p>5. A proviso in a contract creates a condition precedent, in the absence of anything in the contract to show that such was not the intention of the parties.</p> <p>6. In a contract of sale where the article tendered is different in any respect from the article bargained for, the other party is not bound to take it.</p> <p>7. When the failure to perform a contract is in regard to matters which would render the performance of the rest a thing different in substance from what was contracted for, the party not in default may abandon the contract.</p> <p>8. Where one party to a contract, on 'the breach thereof by the other, promptly gives notice that he will not be bound by the same, and demands to be put in the position in which he was at the time the contract was made, and offers to surrender all his rights under the contract, and enters into negotiations with the other party with the object of settling'their differences without recourse to the courts, which ultimately come to naught, the doctrine of laches will not he applied to defeat the injured party of his remedy, when only about three years have elapsed, unless it is clearly shown that the defendant has • been injured or deprived of some defense by reason of the delay in instituting suit.</p> <p>9. The difference between the value of wild and unimproved lands situated about 70 miles from any railroad, and the same lands with a railroad running through or within 10 miles from them, may be very appreciable, but is so speculative as not to be susceptible of proof, and the party injured by the failure of one who agreed with him to construct the railroad, has not an adequate remedy at law, to recover damages for the breach.</p>

<p>1. The statement of an ultimate fact in' pleading is not objection- . able as being, a conclusion of .law: !An .ultimate, .fact is necessarily a conclusion drawn from, intermediate and evidentiary facts. , , , ^ ■ . .</p> <p>■2. An allegation in; a declaration- upon a" promissory note that the defendant “waived demand, protest'and'notice' of demand, non-payment-and protest” is not'the' allegation of a conclusion' of" l'aw. -</p> <p>3, Pleading • evidentiary • facts violates a rule which -requires the allegation only of.ultimate facts, which rule is designed to eliminate long statements of fact in pleading which.are often involved and confused.</p> <p>4. Under the provisions of Section 2940 of the General Statutes of Florida, 1906, neither the validity nor the negotiable character of a promissory note is affected by the fact that the instrument bears a seal.</p> <p>5. A promissory note executed by a corporation under seal, does not thereby become a sealed instrument so as to affect either the negotiability or character of the instrument or the remedy to enforce it.</p> <p>6. An indorser without qualification upon a promissory note warrants by his indorsement that the instrument is genuine and in all respects what it purports to be, arid engages that upon presentment the note will be paid at maturity-according to its tenor. ,.</p> <p>7. In an action by the payee of a promissory note against an indorser without qualification, a plea that the note was not executed or delivered by the maker constitutes no defence and is demurrable.</p> <p>8. Pleas not responsive to the declaration are demurrable.</p> <p>9. Chapter 6486, Acts of 1913, Laws of Florida, entitled “An Act Authorizing The Maker or Makers of Promissory Notes or other Negotiable Instruments and Endorsers, Sureties, Guarantors or other Persons Secondarily Liable Thereon to be Sued in One and the Same Action,” does not amend the Negotiable Instruments Law so as to make negotiable instruments joint contracts on the part of the maker and those • secondarily liable thereon.</p> <p>10. Under the .Negotiable Instruments Law a promissory note has the same force and effect so far as the rules of pleading and evidence are concerned as a sealed instrument, a consideration is presumed. A plea of failure of consideration which merely avers that there was no consideration for making the note or none for 'the indorsement, is bad as amounting to the general issue which is forbidden in an action on a promissory nóte.</p> <p>11. A special plea which contains no averment of fact that would not be admissible under an issue presented by a plea of payment, will be deemed bad on demurrer. ,</p> <p>12. An indorsement of a promissory note is not necessarily a negotiation of it which requires delivery also. A plea which attacks the plaintiff’s interest in the subject-matter of an action upon a promissory note which merely avers that the plaintiff had indorsed the note to another will be held bad on demurrer.</p> <p>13. No intendment exists in the aid of a plea in abatement, it should be certain to that degree which excludes the idea of the existence of those facts necessary to support the action in the tribunal in which it is pending.</p> <p>14. A plea in abatement setting up the defendant’s right to be sued in the county of his residence which is different from that in which the action is pending, should contain specific averments as to the place where the cause of action accrued, of ' such degree of certainty as to exclude the idea that the cause of action may have accrued in the county where the action was brought.</p> <p>15. A plea in abatement for non-joinder of defendants which does not aver that the persons not joined as defendants reside within the jurisdiction of the court, violates rule 18 of Circuit Courts in Law Actions, and will be stricken on motion.</p> <p>16. In an action by the holder of a promissory note against an indorser, a plea which merely avers that the plaintiff-.extended the time of the payment of the note at the maker’s request without the knowledge or consent of the defendant is susceptible to the construction that the extension .of time was a mere forbearance on the plaintiff’s part, and not the result of an agreement binding upon the holder, and is demurrable.</p> <p>17. 'A motion for a compulsory amendment of a plea is addressed to the sound discretion of the court and the ruling thereon will not be disturbed unless it plainly appears that there was an abuse of judicial discretion.</p> <p>18. The order of a trial court allowing amendments to pleadings will not be disturbed where no rule of procedure is violated to the injury of the opposite party and a sound judicial dis- • cretion abused. .</p> <p>19; The cause of action declared on in a declaration is determined by the allegations of fact contained therein, and not by the conclusions of law alleged, nor the name given to it by the pleader.</p> <p>20. Repugnancy in a declaration exists when the matters of substance alleged neutralize each other, or if the statements contained in the cause of action which is attached to and made a part of the declaration are inconsistent with the allegations therein.</p> <p>21. Upon demurrer a plea will be tested by its weakest averments or by the most unfavorable construction that may be placed on its averments.</p> <p>22. Under the Negotiable Instruments Law, Section 3042, General Statutes, 1906, an indorser of a negotiable instrument is discharged by any agreement binding upon the holder to extend the time of payment unless made with the indorser’s assent, or unless the right of recourse against him is reserved.</p> <p>23. An agreement .between the holder and maker of a promissory note for an extension of the. time of payment of the note should be supported by a valuable consideration.</p> <p>24. A plea in an action against one of the indorsers óf a promissory note by the holder, setting up that the holder agreed with one of the indorsers of the note.other than the defendant, for “some good or valuable consideration” to extend the time of payment. of the note, is bad, in not averring that the agreement was made with the first indorser; that each indorsement represented a negotiation of the instrument, and in not excluding. the idea that ..the. extension of. the time of payment ..was gratuitously made, or without a. valuable .consideration.</p> <p>2$. A motion to strike certain counts in'a declaration because they are merely repetitions of a'certain' other count should be granted, but where such motion'is denied by the' trial court the order will.-not constitute harmful, error requiring a reversal of the judgment, unless it appears that.the.complaining party was thereby, substantially .injured by-embarrassment in the preparation of his defense.</p> <p>26. When ofte' of the parties in an- action at law propounds inter- ' rogatories to the opposite party under Section .1534 of the General Statutes of Florida and such interrogatories are not answered as the statute requires, the court may'in its discretion under Section 1335 of the General Statutes, upon the application of the party interrogating require the interrogatories to be answered.</p> <p>27. Where a party to an action at law waits until nearly nine months after his plea is due under the rules to propound written interrogatories to the opposite party under Section 1334 of the General Statutes, which are not answered, and then makes no effort to compel the opposite party to answer under the provisions of Section 1333 of the' General Statutes, he will not be heard to object to the cause proceeding to trial ■upon.the ground that the interrogatories have not'been answered.</p> <p>28. Where pleas to a declaration are filed three or four months prior to a regular term of the court, the case is triable within the meaning of Rule 41 of the rules of the Circuit Courts requiring the clerk before each term to prepare a trial docket upon which he shall enter all cases at law triable at that term.</p> <p>29. Rule '33 of the Rules of Circuit Courts which, among other things, provides that when a rule day occurs in term and such rule day is the day upon which the. defendant is held to file his plea or demurrer to the declaration, any issue of fact arising upon such plea shall not- be heard during that term unless by consent of parties, etc., has no application to additional or amended pleas or demurrers which are filed subsequently to the rule day succeeding that on which the declaration is filed.</p> <p>30. Where a promissory note provides for the payment of a reasonable attorney’s fee if after maturity it should be placed in the hands of an attorney for collection, the trial court is required under the statute to adjudicate the reasonableness of the fee, the judgment of the court as to such attorney's fee will not be disturbed when the record does not disclose the evidence which was before the jury upon such question.</p>

<p>Writ of Error to Circuit Court for Duval County; ' George Couper Gibbs, Judge. .</p>

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

<p>Where issue is joined on a plea and a special replication also filed to such plea alleges matters in reply to the plea, there may be no departure in pleading, and when the proofs substantially conform to the pleadings and are a sufficient basis for a finding and no material errors of law or procedure appear, the judgment rendered will not be disturbed on writ of error.</p>

<p>■ I. In an action for damages to fruit trees alleged to have been caused by a fire negligently set out by a passing railroad locomotive, where the evidence fails to prove or tend to prove that the fire was caused in the manner alleged, 'a verdict for the plaintiff should be set aside.</p> <p>2. In an action against a railroad corporation to recover damages to an orange grove located near the railroad track of the defendant company alleged to have been caused by fire that negligently escaped from the defendant’s engine, the plaintiff should establish by substantial evidence a connection between • the fire which burned the orange grove and the fire that negligently escaped from the defendant’s engine.</p>

<p>1. Where a policy of insurance indemnifies the owner of an automobile against loss or damage occasioned by theft, robbery, or pilferage, the owner cannot, under this clause of the policy, recover for damage to a machine which had been taken by another and used without the consent of the owner, but without any intent to steal.</p> <p>2. Theft is synonymous with larceny and the intent to steal is a necessary ingredient of the offense. v</p> <p>3. In action upon a policy of insurance which indemnifies the owner of an automobile against loss or damage occasioned by theft, robbery, or pilferage by any person or persons other than those in the employment, service or household of the insured, it is incumbent upon the plaintiff to prove his case by a preponderance of the evidence. It is essential to a recovery that the evidence adduced establishes that the damage to the automobile was occasioned by the taking of the same ' by some person not in the employment, service or household of the insured, without the consent of the owner, and with the intent to permanently deprive the owner of his property.</p> <p>4. Where the verdict rendered by a jury is manifectly contrary to the charge of the court, to the law and to the evidence, the judgment must be reversed and a new trial awarded.</p>

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

<p>1. The place of acceptance and not the place of proposal is the place where a contract is consummated.</p> <p>2. A contract of sale may be made by the acceptance of an offer to sell, ag well as the acceptance of an offer to purchase, and where the last act necessary 'to complete the contract is performed that is the place where the contract is consummated and there the cause of action accrues.</p> <p>3. Where an offer of sale is made, an order by letter to purchase the goods so offered, is the last act in the consummation of the contract' and the cause of action accrues in the county where the letter ordering the goods was written.</p>

Motion to quash granted unless writ amended. Statement. On an application by the State, on relation of Thomas F. West, Attorney General, for a writ of mandamus, to the Florida Coast Line Canal and Transportation Company. Motion to quash granted on condition.

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

<p>A writ of- error to a judgment in a habeas corpus proceeding issued by the Clerk of the Circuit Court, without the allowance thereof either by the judge who heard the cause or by a justice of the Supreme Court, is a nullity.</p>

<p>1. It is incumbent upon the plaintiff in an action brought under Sections 1271 and 1272, General Statutes of 1906, to appropriately state all the facts that are essential to a recovery.</p> <p>2. Sections 1271 and 1272, General Statutes of 1906, giving a special right of action to persons who purchase fertilizers and are defrauded by reason of adulterations or deficiencies in the constituent elements of the fertilizer, clearly contemplate that the test of the fertilizer by the analysis provided for shall .be made with at least some -degree of promptness after the delivery of the fertilizer and that more than one sample shall be taken when the quantity of fertilizer purchased makes it expedient to have plural samples to secure a fair test.</p> <p>*3. While the manufacturers and vendors of fertilizers should be held to a compliance with the obligations imposed upon them by law, they have a right to demand that a cause of action be stated in due course of law against them before they are required to take issue on the facts.</p>

<p>Under the provision of the constitution that the legal costs in criminal cases shall be paid by the counties, under such regulations as shall be prescribed by law, a county will not be held liable for such costs unless the statutory regulations in regard thereto are complied with.</p>

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

<p>1. The use of the Latin abbreviation “et al" in the entry of an appeal will not include anyoiíe as a party to such appeal except those who are fully and expressly named as parties in such entry of appeal.</p> <p>2. The purchase at a master’s sale of real estate to whom a deed has been executed and which sale has been confirmed, is a necessary party to any proceeding instituted to set aside or vacate the order of confirmation, and is a necessary party to an appeal taken in such proceeding.</p> <p>3. Where a necessary party on an appeal has not been made such party and has not voluntarily appeared in the appellate court, the appeal must be dismissed.</p>

<p>1. Habeas. Corpus is not a remedy for relief against indictments charging criminal offences defectively or in artificially, though it seems to be a remedy where an indictment charges as an offence an act which, at the time of its commission, the law did not make criminal. In the former case the detention of the accused is not without jurisdiction, though in the latter it is held to be so on the ground that there is no law punishing the act.</p> <p>2. Where habeas corpus is invoked to obtain the discharge of a person held in custody to answer a charge of crime, it must be shown that the statute under which the charge is made is invalid or that the charge as made is not merely defective in its allegations, but wholly fails to state any offence under the laws of the state.</p> <p>3. The writ of habeas corpus cannot be used as a substitute for a motion to quash or a writ of error or an appeal.</p> <p>4. The right to attack an information by the writ of habeas corpus is more limited than is permitted in motions to quash and in arrest, and may avail only when the offence charged does not' constitute a crime under the laws of the State, by reasons of the unconstitutionality of the statute invoked or when there is a total failure to allege a crime under any statute; inartificiality in pleading will not avail.</p> <p>5. Where an information -alleges that the defendant being the owner of an automobile did use and operate the same in this state and county more than fifteen days without' paying the licence tax required by law, under the statute requiring a ■ licence tax of the owner “operating” an automobile in this State, and making it a misdemeanor for failure to comply with the Statute, if tile information is defective because it does not allege that the defendant’s automobile was operated upon the public highways of the 'county, such defect would not render a proper conviction under it illegal or void even though it may be erroneous. An erroneous judgment of conviction may be reversed on writ of error.</p> <p>Ellis, /., dissenting.</p>

<p>Appeal from Circuit Court for Jackson County, Cephas L. Wilson, Judge. ' ,</p>

<p>Writ of Error to Circuit Court for Dade County; H Pierre Branning, Judge.</p>

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

<p>1. Where one of the assignments of error is based upon the overruling of the demurrer to the declaration, the better practice is for the plaintiff in error to discuss such assignment first in his brief for the reason that, where there is no sufficient declaration in a case, and a demurrer should have been sustained thereto, the other questions in the record are not open for the consideration of the appellate court.</p> <p>2. While an assignment of error based upon the overruling of the demurrer interposed to the declaration is not required £o designate or specify the particular grounds of the demurrer relied on, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, the grounds thereof not argued being treated as abandoned, the only exception thereto being where 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. Section 1448 of General Statutes of 1906 does not require that each count of a declaration should set forth the amount of damages claimed by the plaintiff, though there is no objection to so doing. It is sufficient compliance with the statute if the declaration concludes with a statement as to the amount of damages claimed by the plaintiff.</p> <p>4. In construing a declaration', if there are two intendments, it shall be taken most strongly against the plaintiff, but the intendments must be reasonable, not strained or forced.</p> <p>5. Conceding that, where the declaration, in an action at law seeking to recover damages alleged to have been occasioned by the negligence of the defendant, where such damages are not apportionable under the statute, shows upon its face that the plaintiff was guilty of contributory negligence, advantage thereof may be taken by demurrer, if the declaration fails to so show, it is not demurrable upon that ground.</p> <p>6. Where contributory negligence is a defense to an action, in tort, it should be pleaded and proven by the defendant, unless it appears from the allegations or proofs of the plaintiff.</p> <p>7. The credibility and probative force of conflicting testimony are for the determination of the jury.</p> <p>8. Where there is substantial legal evidence to support the verdict, and there is nothing to indicate that the jury misapplied the - law, and it does not appear by an overwhelming preponderance of the weight of the evidence or otherwise that the jury were not governed by the evidence in making their finding, the appellate court will not reverse the judgment on the ground that the verdict is hot supported by the evidence.</p> <p>gt A motion in arrest of judgment reaches only such errors as are apparent on the record proper.</p> <p>10. A judgment will not be reversed for harmless errors in rulings on the admissibility of testimony.</p>

<p>1. A writ of error does not lie to an order refusing to dissolve an attachment. Where it is desired to have such order reviewed by the appellate court the proper course to pursue is to have the bill of exceptions, upon the trial of an issue of fact before the jury in the attachment proceedings, settled and signed and filed as in other cases and incorporate the same in the transcript, after final judgment has been rendered in favor of the plaintiff in the main action, to which a writ of error has been sued out.</p> <p>2. Upon a traverse in attachment proceedings of the debt or sum demanded the better practice to pursue is to make seasonable application to the Court, in accordance with the provisions of Section 2120 of the General Statutes of 1906, in all cases where the issues have not already been made up in the main suit, to require the formal pleadings in the main -suit to be made up and the issues therein settled by special order, without reference to the time fixed by the rules or statutes for . pleading in regular course, in order that the issues in the main case thus made up may be submitted to the court or jury along with the issues raised by the traverse of the special ground of attachment alleged.</p> <p>3. Actions in assumpsit and attachment, proceedings ancillary thereto are so far severable that on'writ of error the judgment may be affirmed as to the former and reversed as to the latter.</p> <p>4. General objections to evidence proposed, without stating the precise grounds of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and .inadmissible for any purpose or under any circumstances.</p> <p>5. A party who objects to the competency of a witness or to proffered evidence should state specifically the grounds of his objection, in order to apprise the court and his adversary of the precise objection he intends to make.</p> <p>6. An appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the court below; the plaintiff in error being confined to the specific grounds of objection made by him in' the trial court, and only such of the grounds so made below as are argued will be considered by an appellate court.</p> <p>7. It is the declared policy of this court to confine the parties litigant to the points raised and determined in the court below and not to permit the presentation of points, grounds or objections for the first time in this court, when the same might have been cured or obviated by amendment, if attention had been called to them in the trial court.</p> <p>8. Section 1450 of the General Statutes of 1906 does not require that the precise form of declarations in the different actions therein set forth be followed, but, on the contrary, provides: “The following forms shall be sufficient in the statement of the declaration of the respective causes of action therein set _ forth. They and like forms may be used with such modifications as may be necessary to meet the facts of the case; but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity.”</p> <p>9. While it may be the safer and better practice in an action upon promissory notes for the pleader to allege in the declaration the place of payment of such notes, where this is not done and the defendant does not question the sufficiency or correctness of the declaration by demurrer, motion or otherwise, there is no fatal variance between the allegations of the several counts of the declaration, which do not allege the place of payment of such notes, and the several notes offered in evidence, especially when copies of such notes are attached to the declaration, in compliance with the requirements of paragraph 2 of Section 1449 of the General Statutes of 1906, so that the defendants could have been in no way taken by surprise when the notes were offered in evidence. The defendant will not be permitted to raise such question of variance for the first time in the appellate court.</p> <p>10. Section 1448 of the General Statutes of 1906 does not require that each count of a declaration shall set forth the amount of damages claimed by the plaintiff. It is sufficient if the declaration concludes with the amount of damages claimed.</p> <p>11. A motion in arrest of judgment, where the verdict and judgment are in favor of the plaintiff, will not be granted if the declaration on its face shows a valid cause of action and is not demurrable.</p> <p>12. Section 1610 of the General Statutes of 1906 expressly provides: “No judgment .after the verdict of a jury, or an award of arbitrators, shall be stayed or reversed for any defects or fault in the original writ, or for a variance between the writ and declaration, or for any mispleading, insufficient pleading, or misjoining of the issue, or for any faulty count in the declaration where the same declaration contains one count which is good, for any informality in entering up the judgment by the clerk, or for any imperfection, omission, defect or lack of form in any pleading not affecting the merits of the cause, or for any irregularity in any writ of venire facias, or in the drawing, summoning or empaneling of petit jurors; unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict.”</p> <p>13. Motions in arrest of judgment reach only such errors as arq apparent on the record proper. Question of variance between the allegation and proofs cannot be considered on a motion in arrest of judgment.</p> <p>14. It is hot sufficient merely to repeat t;he error assigned and state that in the opinion of counsel the action' or ruling of the court complained of constitutes error or that an inspection of the record upon the point in question will show that error was committed. Unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel must call the attention of the court to the specific points upon whjch he relies to show error, otherwise the court will feel warranted in treating such assignment as abandoned.</p> <p>15. Where an assignment of error is based upon the overruling ' of a motion to set aside the judgment in the above entitled cause and to quash the writ of execution therein issued, and to impanel and swear a jury in the said cause to assess the damages of the defendants upon the bond of attachment filed by the plaintiff in said cause, an appellate court wjll consider only such grounds of the motion as are argued, and where no argument is made in support of any of the grounds, such assignment presents nothing for consideration and will be treated as abandoned.</p> <p>Ellis, J.</p> <p>16. Assignments of error which are expressly or impliedly abandoned or which are based upon rulings of the trial court upon the admission or rejection of evidence to which exceptions were not clearly reversed, will not be considered by the appellate court.</p> <p>17. Under the provisions of Section 2111 of the General Statutes of Florida the existence of one or more of the special grounds named in Section 2102 causes a debt not due to become due in case of attachment.</p> <p>18. Section 2107 of the General Statutes requires the plaintiffs in attachment in cases where the debt is not due to produce, in addition to the affidavit as'to the amount of the debt and existence of the special grounds of attachment enumerated in Section 2102, proof before the officer granting the writ by affidavit or otherwise of the existence of such special grounds.</p> <p>19. The additional proof required by Section 2107 of the General Statutes should consist of a statement of facts which being admissible as evidence tend to establish one or more of the grounds enumerated in Section 2102 General Statutes.</p> <p>20. A statement or recital in an affidavit submitted under Section 2107 General Statutes, that C., one of the partners said to a director of the creditor corporation, that he and one other partner had conveyed their entire interests in all the partnership property to the third copartner taking a mortgage from him on the property for their interests therein, that the sale was made to improve the financial condition of the business and help the creditors get the amounts due them, that «at the time of the transfer the business was heavily indebted, and no notice had been given to the creditors of the transfer,does not show that any of the property of the copartnership had been concealed nor that it was fraudulently secreted or disposed of for the purpose of avoiding the payment of debts.</p> <p>21. If the affidavit submitted under Section 2107 General Statutes as proof of the existence of one or more of the grounds for attachment enumerated in Section -2102 General Statutes contains'no statement of fact amounting to evidence of a fraudulent disposing or secreting of property by defendant to avoid payment of debts, the proceedings are coram non judice and should be quashed on motion.</p> <p>22. The additional proof required by Section 2107 General Statutes should be submitted in the form of affidavits or statements of witnesses- reduced to writing sworn to and filed with the main affidavit. It is part of the record as much'so as the main affidavit in attachment and where a writ of attachment is issued undér Section 2107 upon a debt not due, the record should disclose the proof submitted.</p> <p>23. 'A motion to quash an attachment issued upon a debt not actually due under Section 2x07 General Statutes will lie for irregularities and insufficiencies in the additional proof required to be submitted.</p> <p>24. In an action of assumpsit based upon a debt not due where attachment has issued under the provisions of Section 2x07 General Statutes, the judgment of the court may be reversed in the attachment proceedings and affirmed in the main action by this court under the provisions of Chapter 6223 Laws of , Florida, 1911; entitled “An Act to Regulate the Granting of New Trials and the Setting Aside and Reversals of Judgments.”</p>

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

<p>Writ of Error to Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

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

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

<p>1. If a third person in order to get some benefit for himself, or for any personal reasons, without the knowledge or consent of the borrower, pays a lender a bonus as an inducement for a loan, the borrower receiving the full amount and paying no part of the bonus and not affected pecuniarily thereby, the transaction is not an usurious one.</p> <p>1</p> <p>2. If a borrower promises to pay, or is in anywise obligated to pay a bonus or any part thereof for a Toan, which bonus is paid or promised to be paid by a third party as any consideration for the loan, and the amount so paid or promised to be paid for which the borrower is in anywise liable, is in itself, on in addition to any interest paid or promised to be paid, more than the rate of interest which the statutes of Florida allow to be charged, collected or received, the transaction is usurious. ,</p> <p>3. When 'a defendant sets up usury as a defense, the burden of proof is on him to establish it; but when the usury is proven the burden of proving that the holder of usurious paper purchased it before maturity without notice of the usury, is upon the party relying on such purchase.</p>