Volume 74 — Florida Reports

<p>I. The inalienable rights that all men have of acquiring, possessing and protecting property under the constitution, is subject to the implied limitation imposed by the- principles of government deduced from the organic law, that human rights and obligations are reciprocal |am'ong individuals, and that by due course of law private rights yield to the requirements of the public welfare.</p> <p>2. All property is owned and used subject to the laws of the land. Under our system of government property may be used as its owner desires within the limitations imposed by law for the protection. of the public and private rights of others.</p> <p>3. Those who own real estate may use- it as desired so long |as the rights of others are not thereby invaded. And there is no such invasion when the use is authorized by law and is reasonable with reference to the rights of others.</p> <p>4. Legality and reasonableness -in the-use of property, as such use affects the public and private rights of others, mark the limitations of the owner’s rights.</p> <p>5. The reasonableness of the use of property by its owner, must of necessity be determined from the facts and circumstances of particular cases as they arise, by the application of appropriate provisions or principles of law |and the dictates of mutual or reciprocal justice.</p> <p>6. Property owned by one party may be so situated and conditioned with reference to the property of another as that the rights of ownership and the uses 'of such properties are interdependent or correlative. In such cases each owner should so reasonably use his property as not to injure the property rights of others.</p> <p>7. The property rights relative to the passage of waters that naturally percolate through the land of 'one owner to and through the land of another owner are correlative; and each land owner is restricted to a reasonable use of his property as it affects subsurface waters passing to or from the land of another.</p> <p>8. Where a riparian owner by erecting and maintaining a dam across a stream raises the level 'of the stream so that the flow of percolating wlaters from the adjoining lands of another owner are obstructed, and because of the dam the waters from the stream percolate through the land of the riparin owner into such adjoining land causing its subsurface waters to rise and remain so near the surface as to injure the land and the improvements and crops thereon, such use by the riparian owner of the land and waters may be unreasonable with reference to the rights of the adjoining land owner, and the party erecting |and maintaining the dam may be liable in damages for such injuries to the adjoining property as are proximately caused by the dam; and the questions of unreasonable use and resulting damages should be submitted to the jury upon appropriate instructions, when there is any substantial evidence to sustain the issue.</p> <p>9. Where there is some substantial evidence tending to prove the issue for the plaintiff, a verdict should not be directed ■ for the defendant.</p>

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

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

<p>A case of original jurisdiction.</p> <p>Writ of certiorari quashed.</p>

<p>1. A clause in the charter of a city vesting power in the mayor, to decide upon the guilt or innocence of one. accused of violating a city 'ordinance and to fix by penalty the sentence prescribed and to enforce the same, vests in the mayor power to-order the defendant to be committed until a fine imposed be paid.</p> <p>2. In order to obtain from this court a review of the evidence submitted in the trial of an action at law the evidence should be incorporated in a bill of exceptions duly signed as required by statute. A stipulation between counsel cannot take the place of a bill of exceptions.</p> <p>3. An ordinance of a city regulating the erection and maintenance of Bill Boards construed not to forbid the painting of signs upon the walls of buildings advertising the legitimate business of the owner or occupant of the building.</p> <p>4. A municipality has ho power to prohibit by ordinance the use of building surfaces for painting thereon signs or advertisements which are neither lewd, vulgar nor obscene.</p> <p>5. The power of, a municipality to regulate Bill Boards is included in the power to abate nuisances, but cannot be exercised to the extent of depriving one of the legitimate use of his property merely because such use 'offends' the aesthetic tastes of other people in the community. •</p>

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

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

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

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

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

<p>1. An elector should not be deprived of his right t'o vote, solely on account of any irregularity, mistake, error or wrongful act of officers charged with the duty of providing means for, or conducting elections.</p> <p>2. An election will n'ot be set aside because some official has not complied with the law governing elections, when the voter has done all in liis power to east his ballot honestly and intelligently, unless fraud has been perpetrated, or corruption or coercion practiced to a degree to affect the result.</p> <p>8. In elections, a voter should be held to strict accountability for such things as are within his control, but .not for those things which public officers are required to do.</p> <p>4. A voter is not to be deprived of his constitutional rights by the neglect or wilful wrong of a public officer charged with the duty 'of supplying him with the means or the opportunity of expressing his choice.</p> <p>5. An election will not be set aside on purely technical grounds, where no fraud is established, and where no voter was prevented from expressing his choice, or where it is not shown that but for the acts complained of, the result would have been different.</p> <p>6. Section 210 'of the General Statutes of Florida, is intended to preserve the secrecy of the ballot, and to prevent the use of any' ballot other than the official ballots printed and distributed by designated officials.</p> <p>• 7. The provisions of Section 210 that “no ballot shall be received and counted in any election, t'o which this act applies, except it be provided as herein prescribed,” is intended to prevent a person from voting any ballot other than the official ballot.</p> <p>8. The prohibition in Section 210 against any ballot being received and counted, “except it be provided as herein prescribed” does not relate t'o Sections 219 and 220.</p> <p>9. An innocent voter should not be deprived of his right to exercise the elective franchise, because a public official fails to perform some duty required of him by the election laws.</p>

<p>A case of original jurisdiction.</p>

<p>1. Section 1, of Article XIV of the Florida Constitution defines the militia of the Statei to be: “all able bodied male inhabitants of the State between thé ages of eighteen and forty-five years, that are citizens of the United States, or have declared their intention t'o become citizens thereof.”</p> <p>2. By the provision of Section 4, of Article XIV of said Constitution thei Governor of the State has the authority to call out the militia of the State to preserve the public peace, to execute the laws of the State, to suppress insurrections, etc., and this whether such militia is organized or not 'into companies, batallions or othef military units. All able bodied male members of any organized military company that are between the ages of eighteen and forty-fivei years, constitute a part of the militia of the State by whatever name such 'organized military company may be otherwise designated, and are subject to the Governor’s orders in any part or the State for the purpose of preserving the public peace, and to execute the laws of the State, etc.</p>

<p>1. A verdict will not be disturbed on the ground that it is not supported by the evidence, or contrary tb the evidence, where there is evidence legally sufficient to support the verdict, unless it may well be assumed that the jury were improperly influenced by considerations outside the evidence.</p> <p>2. Where the evidence is conflicting, a new trial will not be granted upon the ground that the verdict is against the weight of the evidence.</p> <p>3. The order of the introduction of evidence and the examination of witnesses is a matter within the sound discretion of the trial court, and its action will not be disturbed unless a strong case is. made showing that injustice has been done and a sound discretion has not been exercised.</p>

<p>Writ of Error to Criminal Court of Record for Duval County, J. M. Peeler, Judge.</p>

<p>' i: In a suit to enjoin a city from opening 'or' ¿¿tending a'street, an' answer'-by the city claiming aMiglit under a-'dedication of tlie land sought to be appropriated for the public use, is new matter and the burden rests upon the city to prove such dedication.</p> <p>2. The findings and conclusions of a Chancellor upon testimony taken before an examiner and duly reported will not be disturbed by an appellate court unless such findings and conclusions are clearly shown to be erroneous.</p>

<p>1. When competent parties upon a sufficient consideration enter int'o an agreement to waive errors and not to appeal from the judgment of the court of original jurisdiction, their object being to settle their differences and terminate the litigation, and such agreement is seasonably brought to the attention of the appellate court by appropriate proceedings, it should be recognized and given .effect..</p> <p>2. An appeal should n!ot be dismissed where some of the appellants may be heard and the decree appealed from is not . such a joint decree as to preclude any consideration of the case by the appellate court without having all the parties to the case in the court below before it.</p>

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

<p>1. In equity appeals the appellants ask for a reversal,of the decree appealed from, and they should have all interested parties before the court.</p> <p>2. Where the appellate court is asked to determine the correctness of a decree all parties who are interested in and benefitted by such decree are entitled to be heard, and should be before the court by proper proceedings if they were parties to the cause in the Court below..</p> <p>3. The acknowledgment by counsel of service of a copy of the written directions to the Olerk to make up the transcript, with consent that he should at once commence the preparation of the same, iá no waiver of the right to move to dismiss ' ■ an appeal on the ground of a void or irregular entry thereof.</p> <p>4. Where indispensably necessary parties are omitted from an appeal, such appeal will he dismissed, sua sponte, by the court.</p> <p>5. Where a decree in equity is entered in favor of a complainant against one of the several defendants, and the decree does not directly affect any of the other defendants, the injured defendant alone may take a separate appeal, which if duly recorded will bring the complainant before the appellate court as appellee.</p> <p>6. Where a chancery decree or a severable portion thereof is in favor of the complainant and 'of one or more of the defendants and against one or more of the other defendants who appeal and assign such decree as error, the defendants in whose favor the decree is rendered should be brought here by making theni parties appellant and if necessary with the service of a summons as for severance; 'or equivalent proceeding.</p> <p>7. Where a decree is in part in favor of the complainant and of some of the defendants and against another of the defendants, and the latter takes an appeal in his own name only, and assigns error on part of the decree in favor of the complainant and Some of the defendants, such appeal may be dismissed for want of proper parties, unless the defendants who are not made appellants in some way appear in the cause in this court.</p> <p>8. Where an entry of appeal is sufficient to give to the appellate court jurisdiction of the cause, but not of all the parties thereto, and the absent parties appear in the- appellate court by joining in a suggestion of the diminution of the record such action will be a general appearance in the cause in this court; and a pending motion to dismiss the appeal for want of proper parties will be denied.</p>

<p>1. A motion to dismiss a second appeal on the ground that it was taken “while an appeal was pending trom the same . final decree and undisposed of” will be denied where tlie first appeal was dismissed before the motion is made to dismiss the second appeal.</p> <p>2. A motion to dismiss an appeal on the ground that it does not appear by the record here that the entry of appeal was duly recorded will be denied where the motion to dismiss contains a ground that is not confined to the question of jurisdiction of the appellee, but extends to the cause of action and amounts to a general appearancce in the cause in this court, even though the motion states that the movants appear specially for the purpose 'of the motion and for no other purpose.</p>

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

Writ of error to Circuit Court for DeSoto County. F. A. Whitney, Judge. STATEMENT.

<p>Where an insurance |agent is requested to “place” insurance on stated property without indicating the companies, such agent, under the circumstances shown, is authorized without giving notice to cancel one policy issued on the request and to issue another in its stead, the insured not insisting on the provision in the policy requiring five days’ notice to the insured of cancellation. The first policy having been can-celled before the substituted policy was issued and the latter not having been cancelled before the fire loss, the .insurer . can not avoid liability on the ground that the policy was not duly issued, or that the first policy was in force when the substituted policy was issued.</p>

<p>Where an appellant fails to file his briefs within the time pre scribed by a special rule of court applicable to causes involving proceedings for the validation of municipal bonds, but does file such brief within the time prescribed by the general rules governing chancery causes generally; and the appellee then, after the filing of such brief moves to quash and dis-: miss said appeal because of the appellant’s failure to file his brief within tlie time named in such special rule: Held, That the appellee’s motion comes to'o late; tb|at by waiting until after the brief of appellant was actually filed before presenting his motion to dismiss the appellee acquiesced in the appellant’s delay and thereby waived the same. TTad the appellee promptly after the lapse of the time prescribed by such special rule for the filing of the appellant’s brief presented such motion for dismissal for failure to file such brief, his motion w'ould have been well grounded.</p>

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

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

<p>1. When the constitutional validity of the statute on which a prosecution is based is not raised in the trial court, but is merely suggested in the briefs filed in the appellate court, and the law is not patently in conflict with organic law, its validity will not be considered.</p> <p>2. Where the allegations of an indictment are in substantial conformity to the statute defining .the crime alleged, and are sufficient to show the nature find cause of the accusation against the defendant, it is not error to deny a motion to quash the indictment.</p> <p>3. A bill of particulars may be awarded to a defendant in a criminal prosecution, where he is entitled to more detailed specifications 'of. tbe ultimate facts alleged in the indictment.</p> <p>4. When the statute makes the selling of property subject to a mortgage lien' “without the written consent of the person * holding such lien,” a crime, evidence as to a verbal consent or acquiescence is ordinarily not .admissible in defense.</p> <p>5. Where the evidence is admittedly sufficient to sustain the verdict in point of fact, and it is held to be sufficient in law to sustain the Conviction, the indictment being legally sufficient, the judgment .will be affirmed no reversible errors appearing.</p>

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

<p>1. The,rule tof idem sonans should not be restricted to mean that the sounds produced by dissimilar spelling, must be identical, or indistinguishable from each other, but that they should be sufficiently alike in sound as not readily to suggest a difference to the mind of the hearer.</p> <p>2. Where two names are presented to the consideration of the court, the inference that they designate the same individual is strong in proportion ias the difference between the two is slight; and, conversely, the inference of identity is weak as the points of difference between the two names are numerous and marked.</p>

<p>1. A motion-fa quash an indictment upon the ground that the court has no jurisdiction to try the offense charged is not the proper remedy where under the statute in such case the clerk of-the Circuit Court is required to docket the case on the trial docket of the court having jurisdiction in the county where the offense was plleged to have been committed.</p> <p>2. A bill of particulars Constitutes no part of an indictment, and the latter is not affected by any defects or inadequacies of the former. Reference cannot be had ta the bill of particulars to point out any defects in the indictment.</p> <p>3. Chapter 6969, Laws of Florida, 1915', relating to the protection of game in this State requires the County Judge to receive money for issuing hunters’ licenses, and that, ths money so received and reduced by the fees which the law requires to be paid to the Game Warden and retained by the County Judge is deemed to be money belongiug to the county within the meaning of Section 3317, General Statutes of Florida, 1906, prescribing punishment for embezzlement by any State, county or municipal officer of any money, property or effects belonging to the State, county, city or town.</p> <p>4. Section 38 of Chapter 6969, Laws of Florida, 1915, which provides a penalty for the failure of any official, officer or warden to perform an act, duty or obligation enjoined upon him by the provisions of the game laws is not applicable to the crime of embezzlement defined and punished by Section 3317, General Statutes of Florida, in cases where a County Judge converts to his own use or withholds with such intent money collected for hunting licenses under the provisions of the Act of 1915.</p> <p>5. One statute will not be held to repeal a prior statute by implication unless the legislative intent t’o repeal the former statute is made clearly to appear from the provisions of the latter statute.</p> <p>6. The purpose of a bill of particulars in a criminal case is to advise the defendant more fully than the indictment or information, as to the nature and cause of the accusation against him, and to enable him more readily to prepare his defense.</p> <p>7. A bill 'of particulars is no part of the .pleadings, it neither weakens or strengthens the indictment or information, although it may have the effect of narrowing the indictment as to the time within which the acts alleged constituting the offense may be proved.</p> <p>8. The propriety of a motion to strike any item from a bill of particulars questioned.</p> <p>9. A new trial should be granted ifi there is n’o evidence suffi- ,. cient to support a verdict of guilty.</p> <p>10. Evidence examined and found insufficient to support the verdict.</p>

<p>Tallahassee, Fla., Nov. 1st, 1917.</p> <p> His Excellency Sidney J. Gatts.. </p> <p> Governor of Florida, </p> <p> Tallahassee, Florida. </p> <p>Sir:,</p> <p>We are in receipt of your communications of the 31st ult., as follows:</p> <p>“State of Florida,</p> <p>“Executive Chamber,</p> <p>“Tallahassee.</p> <p>“Sidney J. Catts,</p> <p>“Governor.</p> <p>“J. Y. Burke,</p> <p>“Secretary.</p> <p>“October 31, 1917.</p> <p> “To the Honorable .Chief Justice and Justices </p> <p> “of the Supreme Court of Florida, </p> <p> “Tallahassee, Florida. </p> <p>“Gentlemen:</p> <p>“Under the provisions of Section 13 of Article IV of the Constitution of this State, I have the honor to request your written opinion affecting my powers and duties as Chief Executive under the following provisions of the Constitution:</p> <p>“ ‘Section 24, Article IV. The Treasurer shall receive and keep all funds, bonds and other securities in such manner as may be prescribed by law and shall disburse no funds or issue bonds or any other securities except upon' the order of the Comptroller countersigned by the Governor in such manner as shall be prescribed by law.</p> <p>“ ‘Section 3, Article XVI. The salary of each officer shall be payable quarterly upon his own requisition.’</p> <p>“Hon. W. A. McRae, Commissioner of Agriculture of the State of Florida, has made a requisition upon Hon. Ernest Amos.,..as Comptroller, for a warrant covering his salary as • such Commissioner of Agriculture for the month of October, A. D. 1917, the said month of October being embraced in the quarter ending December 31 of the said year.</p> <p>“I .desire- to be advised if in view of the foregoing provisions.,-of,; the Constitution, I would be authorized as Governor at this time, or at any time prior to.December 31, to countersign a warrant drawn on the State Treasurer covering such monthly salary or for such salary of any other constitutional officer for any period of time less than the full quarter.</p> <p>“Very respectfully,</p> <p>“SIDNEY J. CATTS,</p> <p>“Governor.”</p> <p>“State of Florida,</p> <p>“Executive Chamber,</p> <p>“Tallahassee.</p> <p>“Sidney J. Catts,</p> <p>“Governor.</p> <p>“J. V. Burke,</p> <p>“Secretary.</p> <p>“O.ctoer 31, 1917.</p> <p> “To the Honorable GMef Justice and Justices </p> <p> “of the Supreme Court of Florida, </p> <p> “Tallahassee, Florida. </p> <p>“Gentlemen:</p> <p>“Under the provisions of Section 13 of Article IV of the Constitution of this State, I have the honor to request your written opinion affecting my powers and duties as Chief Executive under the following provisions of the Constitution: ■</p> <p>“ ‘Section 24, Article IV. The Treasurer shall receive and keep all funds,- bonds and other securities in such manner as may be prescribed by iaw and shall disburse no funds or issue bonds or any other securities except upon the order of the Comptroller countersigned by the Governor-in such'manner as shall be prescribed "by law.</p> <p>“ ‘Section 3, Article XYI. The- salary of each officer shall be payable quarterly upon his.own requisition.’</p> <p>“Hon. J. Frank Smith, Food, Drug and Fertilizer Inspector for the Chemical Division of the Department of Agriculture of the State of Florida, appointed by the Governor under the provisions of Chapter .6122, Acts of 1911, as amended by Chapter 6541, of the Acts of 1913, has made a requisition upon Hon. Ernest Amos, as Comptroller, for a warrant covering his salary as such Food, Drug and. Fertilier Inspector for the month of October, A: D. 1917, said month of October being embraced in the quarter ending December- 31 of the said year,</p> <p>“I desire to be advised if in view of the foregoing provisions of-the Constitution, I would be authorized as Governor at this time or at any time-.prior.to December 31, to countersign- a warrant drawn on the State Treasurer covering such monthly salary or for such salary of any other statutory officer for any period of- time less than a full quarter, the said- statute creating the office of Food, Drug and Fertilizer Inspector providing that such salaries shall be paid quarterly.</p> <p>“Yery respectfully,</p> <p>■ “SIDNEY J. CATTS,</p> <p>“Governor.”</p> <p>Your inquiry involves a construction of Section 3 of Article XYI of our -State Constitution that provides:</p> <p>“The salary of each officer shall be payable quarterly upon his own requisition.”</p> <p>This provision of our organic law seems from its terms to be mandatory. The salaries of all State officers are fixed at so much per year, and the quoted provision provides in plain terms that the salaries so fixed shall be payable quarterly; that is the equivalent of saying that such annual saalries be divided into four equal amounts that shall become due and payable quarter-annually. As it cannot be said that the Constitution intended that any part of this fixed salary should be paid or payable prior to its having been earned by the ofiice holder, it follows that the annual salaries provided for shall' fall due and become payable in four equal amounts at the ■end of each quarter of each year, and not before. The word “payable” is a descriptive word, defined as meaning “capable of being paid; suitable to be paid; admitting or demanding payment; justly due; legally enforceable.” 6 Wordá and Phrases Judicially Defined 5245 and citations. As no payment for salaries can be made by the State Treasurer except upon a warrant issued- by the Comptroller and countersigned by the Governor, and as no salary or part of a salary of -an officer should be paid before it becomes lawfully due and payable, it would seem to follow that it would be irregular if not unlawful for the Comptroller to issue a warrant and for you as Governor to countersign the'same for the payment of any part of an official salary prior to the time when by law it falls due and becomes payable.</p> <p>Respectfully,</p> <p>JEFFERSON B. BROWNE,</p> <p>Chief Justice.</p> <p>R. F. TAYLOR</p> <p>J. B. WHITFIELD</p> <p>W. .H. ELLIS</p> <p>T. F. WEST</p> <p>Justices.</p> <p>E. E. Skipper, Appellant, v. G. S. Thomas, Appellee. •</p> <p>Opinion Filed November 2, 1917.</p> <p>1. In proceedings brought to enforce a materialmian’s lien an allegation that the lien claimant gave written notice to the owner is a sufficient statement that a written notice was delivered and served under Section 2211, Gen. Stats, of 1906.'</p> <p>2. Where several houses are built on different lots under one contract, it is not ■ essential that the amount 'of material used in the buildings severally should be alleged in the bill of complaint brought to enforce .a materialman’s lien.</p> <p>Appeal from Circuit Court for Polk County, F. A. Whitney, Judge.</p>

<p>1. Section 3906, General Statutes, 1906, providing that “No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall he allowed to serve as a juror on the trial of any capital case,” does not disqualify a person “to serve as a juror on the trial of any capital case” merely because he may have “conscientious scruples against the infliction 'of capital punishment for murderand it is not harmful error to exclude a question propounded by the defendant as to the proposed juror’s conscientious scruples against capital punishment for murder.</p> <p>2. It is harmful error to overrule objections to questions propounded by the State to ai defendant witness |as to material testimony given by the defendant witness at a coroner’s inquest relative to her connection with the homicide in question, when it is not affirmatively shown that the witness was warned of her rights when testifying before the coroner and when in custody of an officer.</p>

<p>1. A general demurrer addressed to the entire bill of complaint should be overruled if there is any equity in the allegations of the bill.</p> <p>2. Where one conveys real property to ¡another, without consideration, the object being to promptly consummate a sale of such property by the grantee, it being expressly agreed that upon making sale of the property he will remit the purchase money received therefor to the grantor, a trust in the property is created and the grantee holds. only the bare legal title, the grantor being the beneficial owner of such property.</p> <p>3. Where one intermingles property held in trust by him with other property, so as to make it difficult if not impossible to prove, in a court of law, the amounts received for the property so held in trust, upon sales of such property, a suit for an accounting in a court of equity may be maintained.</p> <p>4. While courts of law have jurisdiction to enforce contract demands that involve an accounting, yet courts of equity also take cognisance of cases in which contract demands between litigants involve complicated accounts where it is not clear from the facts alleged) in the particular case that the remedy at law is as full, adequate and expeditious as it is in equity.</p>

<p>Writ of Error to Court of Record for Escambia County, C. M. Jones, Judge.</p>

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

<p>Criminal Law — Murder—Admission and Rejection of Evidence in Murder Trial — Declarations of Defendant to Third Persons Made Shortly After ti-ie Killing as to Occurrences at the Time of the Homicide When Rejected Through ti-ie Mouths of Such Third Persons is Harmless Error if the Defendant as a Witness for Himself Under the Statute After-wards is Permitted Under Oath to Testify as to ti-ie Substance of the Matters Rejected from Admission Through Suci-i Third Persons — Admission of Matter so Wholly Impertinent, Foreign and Immaterial to Any Issue in the Case as to Constitute Harmless Error.</p> <p>1. When declarations made by the defendjant to- third persons shortly after the homicide as to words spoken by the deceased and other occurrences at the time of such killing is ■ rejected when offered by the defendant to be, proven by , • such third persons, Held that even if such declarations ware . anything more than self serving declarations and the veriest hearsay, the error, if any, in their exclusion through such third persons, wias cured and became harmless error when the defendant was afterwards permitted to testify under oath as a witness for himself under the statute, as to the substance of the matter rejected when offered to be proven as declarations made by the defendant to such third persons.</p> <p>2. Evidence that tends to show premeditated design to kill the deceased is properly admitted in |a trial for murder.</p> <p>3. Evidence that tends to show hostile feeling by the defendant towards his victim, the deceased, is properly admitted in a trial for the homicide as it tended to show a motive for the crime.</p> <p>4. Evidence showing an adulterous intercourse between the defendant and the wife of the deceased is properly admitted, as it-tends to establish the motive of the defendant for committing the homicide.</p> <p>5. Evidence ladmitted in a trial for murder may be so wholly impertinent, foreign and immaterial to any issue in the case as to be wholly incapable of harm to the defendant, in which event the court will adjudge its erroneous admission to be harmless error.</p> <p>6. There is no error in excluding the testimony 'of the defendant by which he sought to show that the illicit intercourse between'himself and the wife of the deceased was brought about by the solicitation of said wife, ;as said proffered testimony was wholly impertinent and immaterial to any issue in the case, and furnished no excuse or palliation for either such illicit intercourse or for the subsequent slaying of such woman’s husband.</p> <p>7. Any evidence that tends to prove that a person suspected of crime in any manner endepvors to escape or evade a threatened prosecution, by flight, concealment, resistance to lawful arrest, or ’other eso post facto indication of a desire to • evade prosecution is properly-admissible as one of a.,series of circumstances from which guilt may be inferred. .</p> <p>8. When a question to .a. witness for the defense is disallowed by the - co.urt, • but, notwithstanding the courts ruling on the question disallowed, the witness goes (ahead and answers the question fully, and his answer is not stricken or taken from the jury, the error, if any, in the disallowance of the question is cured, and no harm ‘results to the defendant from the ruling disallowing the question of which he can afterwards complain.</p> <p>9. An appellate court should not 'grant a new trial upon the ground of the insufficiency of the evidence to sustain a verdict of guilty affirmed by the trial 'court if 'there is some substantial evidence of all the facts legally essential to support the verdict, and the whole evidence is such that the verdict may fairly have'been found on it.</p> <p>10. A verdict will not be set aside by an appellate court where the propriety of the verdict depends, not upon the lack of evidence, but upon the credibility 'or weight of conflicting testimony.</p>

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

<p>1. The common law doctrine of contributory negligence — • except in the case of employes of railroad companies, and persons engaged in certain hazardous occupations — is in force in this State.</p> <p>2. Where an employe is guilty of negligence which contributes ‘ proximately t'o his injury, he' cannot hold' the master liable for such injury.•</p> <p>3. The servant in the performance of his duties is bound to exercise ordinary flare, or that degree of care which prudent persons usually exercise under similar circumstances, and if he is injured by failure'to exercise such care, his master is not liable.</p>

<p>1. Diving is not one of the hazardous occupations described in Section 1, Chapter 6531, Laws of Florida, Acts of 1913.</p> <p>2. Where a person is employed to do diving and he goes into the water from a barge or dredge-boat which is not propelled by steam, the occupation is not a hazardous one in contemplation of Chapter 6531, Laws of Florida, Acts of 1913.'</p>

<p>1. Irregularities in the holding and conduct of popular elections .will not invalidate them where they have been free and fair and the result not changed by reason of such irregularities.</p> <p>'2. This rule applies |alike to political or popular elections, and to those whereby a tax is to be levied on property.</p>

<p>1. While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>2. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon the questions of fact, will not be reversed, unless the evidence clearly shows it to be erroneous.</p> <p>3. Where the testimony is conflicting but there is evidence to support the finding of the chancellor, the decree will not be reversed on the evidence.</p> <p>4. No instrument is effectual as an alienation of or a conveyance or transfer of title to or any interest in the homestead real estate, without the joint consent of husband and wife when tb]at relation exists, which joint consent shall be evidenced by a deed or mortgage duly executed and acknowledged by the husband and wife with the formalities prescribed by law for conveyances' by husband and wife.</p> <p>5. The signing, sealing and delivery of a deed by a married woman is not sufficient to convey her interest in the land described therein, whether such interest be dower, separate estate, or what not. In addition thereto, in order to render such decree effectual as to her, she must acknowledge the same in accordance with the statutory requirements.</p> <p>6. Where a married woman fails to duly acknowledge before an officer, the execution of a deed of conveyance to an interest in homestead real estate in accordance with the statutory requirements, even though her husband who is the owner of the homestead property properly executes and acknowledges such deed, it is ineffectual to convey the homestead real estate, for the reason that there Las been no “joint consent of husband and wife,” or deed cl conveyance “duly executed by 'husband and wife,” which the Constitution mandatorily requires in order to make a conveyance of the homestead valid and effectual to pass the title thereto.</p> <p>7. A wife has a dower interest in her husband’s homestead real estate.</p> <p>8. The law. which authorizes designated officers to take the private examination of the wife was designed as a substitution for the procedings at common law by fine and recovery, whereby the right of the wife on the one, hand might be guarded, and a sure indefeasible and unquestionable transfer of her right secured on the other.</p> <p>9. A deed of conveyance of homestead real estate by the owner who is a married person, is not under the constitution “duly executed” or effectual, unless the execution by the wife is acknowledged before an officer in substantial compliance with the statute, in addition to the signing, sealing and delivery of the instrument by bot'h husband and wife, and its due attestation by two witnesses.</p> <p>10. A deed of conveyance signed, sealed and delivered by the husband and by the wife, is not effectual even as between the parties where the execution of it was not duly acknowledged by the wife.</p> <p>11. Where the evidence is ample to sustain specific findings of the chancellor “that the property in dispute is a homestead, and that no proper acknowledgement of the wife was ever taken as to her joinder in its attempted conveyance,” and no. reversible errors of law or procedure appear, a decree based on such findings will be affirmed.</p>

<p>1. Where the appeal is not from a final decree but only from an interlocutory order or decree, errors assigned on other interlocutory orders not specifically appealed from will not be considered by the appellate court.</p> <p>2. Orders enlarging the time for taking testimony in equity qauses are within the sound discretion of the judge, when special cause is shown; and unless abuse of sucb discretion appears tbe appellate Court will not interfere.</p>

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

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

<p>A case of original jurisdiction.</p>

On Eehearing. Averments of fact in an answer to an alternative writ of mandamus issued to enforce an order of the Eailroad Commissioners should be sufficiently clear, and the facts averred sufficiently strong to overcome the presumption of reasonableness, which obtains in favor of the order under the statute, to present that issue.

<p>1. Where because of fraud or mutual mistake a policy of fire insurance does not express the Contract entered into by the parties, a court of equity may reform the policy so that it shall express the contract intended to be made, and in the same suit may enforce the obligations of the .policy. Unless the complainant by appropriate allegations and proofs sh'ows that he is entitled to have the policy reformed, the policy cannot properly tie enforced in the equity suit and the bill should be dismissed.</p> <p>2. In reforming a policy of insurance, like thjat of any other written contract, the want -of conformity to the agreement of the parties must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a ground for rescinding, but not for reforming, the cpntract, where the minds of the parties have not met, there is no contract, and hence n'one to be rectified.</p> <p>3. An insurance policy as issued and accepted is prima facie the contract of the parties; and in order to have it reformed, the burden is on‘the plaintiff to show that a different contract was entered into from that which was reduced to writing, and this fact must be proved by clear, convincing and satisfactory evidence, not alone by a preponderance of the evidence, but he must establish the fact by such evidence as to show conclusively that a mistake had been made, that such mistake was mutual to both parties, and to satisfy the court of such mistake beyond a reasonable doubt.</p> <p>4. In a suit for the reformation- of a written instrument, when the evidence is conflicting (and the finding of the chancellor thereon does not clearly appear to be erroneous, it will' not be disturbed on- appeal.</p>

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

<p>1. In an action of trover against a drawee bank for the conversion of a check upon the bank, where the declaration shows a conversion of the check by the bank it is unnecessary to allege a demand by the plaintiff for a return of the check and a refusal by the defendant.</p> <p>2. The payee 'of a bank check may maintain an action of trover against a bank upon whom the check is drawn which pays the check to ian unauthorized person who falsely represents himself to be the agent of the payee to endorse the check and receive the proceeds of the same.</p>

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

<p>Appeal from Circuit Court for Pasco County, O. K. Beeves, Judge.</p>

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

<p>1. Section 1 of Chapter 7283, Laws 1917, defines the term “Prohibited Liquors and Beverages” traffic in which is prohibited.</p> <p>2. In interpreting the words of a statute the courts perforin no function of legislation, but seek only to ascertain the legislative intention and where the language is plain, definite in meaning without ambiguity, it needs no interpretation or construction and itself fixes the legislative intention.</p> <p>3. 'The legislative intention. in denouncing certain Conduct or the commission of certain deeds as unlawful may be gathered from consideration of the language of the entire act and such act construed as creating an offense as distinguished from a mere tort.</p> <p>4. Where a statute denounces certain conduct as unlawful and the purpose of the act is to prohibit such conduct as wrongful to the degree of criminality, the statute will be construed as creating an offense within the meaning 'of Section 3176 of the General Statutes of Florida, 1906.</p> <p>5. Where a statute creating ian offense not a felony fails to provide for punishment of such offense-, it is punishable under Chapter 6222, Laws of 1911.</p> <p>6. Under the provisions of the Constitution of 1885, Section 16 of Article III, each law enacted by the legislature shall embrace but one subject and matter properly connected therewith, and the subject is required to be briefly expressed in the title; but the title of an act which does not briefly express the subject of the act does not render the latter void if the title does not mislead or deceive, nor is calculated to do so.</p> <p>7. Article III, Section 16, of the Constitution of 1885, forbids the legislature to embrace in one act two unconnected subjects, but provisions on one subject and matter connected therewith may ,be embraced in the same act.</p> <p>8. Where an act 'of the legislature has for its subject “Traffic in intoxicating and non-intoxicating liquors,” it is not void as being in violation of Article III, -Section 16, because it contains provisions prohibiting the manufacture, ■ sale or keeping for sale intoxicating and non-intoxicating liquors as that term is defined by the act.</p> <p>•9. The subject 'of an act may 'be ascertained by consideration -of -the several miatters expressed in the title if such matters so expressed are germane to each other and properly connected.</p> <p>10. In the exercise of its police power the State may through legislative enactment prohibit the manufactcure and sale of certain intoxicating and non-intoxicating beverages in certain counties which have voted to prohibit the shle of intoxicating liquors under the provisions of Article XIX of the Constitution, and whether the non-intoxicating beverages described in the act possess deleterious qualities or may be conveniently or easily used as a cover to violations of law against the sale of intoxicating liquors, are matters left largely to the legislative judgment.</p> <p>11. A statute prohibiting the sale 'of intoxicating and certain non-intoxicating liquors in counties in this State which have voted to prohibit such sale under the provisions of Article XIX of the Constitution and making such sale an offense, does not violate Section 20 of Article III 'of' the Constitution prohibiting the passage of special or local laws for the punishment of crime or misdemeanor.</p>

<p>1. Ib ia suit for divorce.by a wife against lier husband where the bill alleges that she is without income, has no property, and is without means to employ counsel, it is proper for the court upon motion, to appoint a Master to take testimony -as to the faculties of the parties for the purpose of basing thereon ah order against the husband for the paynaent of temporary alimony ¡and. suit money, alth'ougb. the husband has answered the bill denying the existence of the alleged grounds for divorce and charging the wife with the commission of adultery</p> <p>2. In a suit for divorce it is proper for the court to deny a motion to app'oint a Special Master to take testimony upon the merits of the case before the issues are made up.</p>

Defendant in Error. Writ of error to Circuit Court of Wakulla County, E. C. Love, Judge. STATEMENT.

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

<p>1. Under Section 936, General Statutes of 1906, where fines are imposed under the penal laws of the State, “judgment must be entered therefor in favor of the State for the use of the particular county,” such fines being required by the Constitution to be paid into the county treasuries.</p> <p>2. Where a plea of nolo contendere is accepted it is not necessary in passing sentence for the court to adjudge a party to be guilty, for that follows as a legal inference from the implied confession of the plea; but the court should adjudge that the defendant is convicted of the offense charged, and the sentence which follows should impose the penalty as provided by law.</p> <p>3. The right of a trial court to suspend sentence is recognized, but it has no power to suspend the execution of a sentence already lawfully imposed, except for the purpose of giving effect to an appeal, or where cumulative sentences are imposed, and in some cases of necessity or emergency.</p> <p>4. An entry in a crimin¡al prosecution that “it is considered by the court that the defendant do forfeit and pay to the State of Florida the sum of” stated dollars, and that the collection thereof is suspended, is not such a judgment as will support a writ of error.</p>

<p>1. A valid lease of land for a term of years is ¡a conveyance of an interest in the land.</p> <p>2. Under Section 2645, Gen: Stats, of 1906, a corporation may “adopt and use a common seal and alter the same at pleasure,” ¡and under Section 2484, “a scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be as effectual as a seal,” and where the execution clause of a written lease of land of a corporation states that the “lessor has caused these presents to be executed by M., its president,” it is an adoption of the (seal) used by the president opposite his name in executing the lease, and under Section 2459 such lease is sufficiently executed without two subscribing witnesses.</p> <p>3. When the lessee vacates the leased premises and notifies the lessor that he will not pay rent under the lease after a stated date, and the lessor succeeds in renting the property for a portion oc theieased term at a lesser rental rate, the lessor may under the circumstances shown, recover from the lessee the differences between the rentals contracted for in the lease and the rents received from the tenants procured after the lessee vacated the premises.</p> <p>4. Where no reversible errors of procedure are made to appear and on the entire evidence a verdict for the defendant could not legally be found, the court is under the statute authorized to direct a verdict for the plaintiff.</p>

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

<p>1. It is well settled that mandamus is the proper remedy to compel its exercise when a court refuses to exercise jurisdiction that 'it clearly possesses.</p> <p>2. - While mandamus will lie to compel a court ■ to exercise its lawful jurisdiction where it refuses to do so, it cannot be 'maint/ained to correct alleged errors in rendering a judgment where there is an adequate remedy by writ of error.</p> <p>3. As a general rule a plaintiff, in an ordinary action at law, has the right, without the consent of the defendant, to dismiss his case before it has been submitted on the merits, but this rule does not obtain' in actions of replevin.</p> <p>4. In an action Of replevin both, parties are equally actors, and when the plaintiff in replevin has been put in possession of property, under a writ of replevin, he will not be permitted to escape liability to defendant by taking a non-suit or dismissing his action without the consent of the defendant.</p> <p>5. This is true also in a case where the goods have been redelivered to the defendant upon his forthcoming bond, since in such case, when the plaintiff declines to further prosecute and |asks that his action be dismissed, it appears within the meaning of the provisions of Section 2189, General ■Statutes of Florida, 1906, that the defendant is entitled to the goods replevied and the plaintiff cannot by pursuing this course deprive the defendant of the right which the statute clearly gives him to have the question 'of his damages and costs passed upon in such action.</p> <p>6. In an (action of replevin, where the goods replevied have been redelivered to the defendant upon his forthcoming bond, and the plaintiff declines t'o further prosecute- his action and files a motion asking that it be dismissed it appears within the meaning of the provisions of Section 2189, General Statutes of Florida, 1906, that the defendant is entitled to the goods, and he' is therefore entitled to an inquest or hearing in such action upon the question 'of “his damages for the taking of such property and for his costs.”</p> <p>7. The unauthorized action of a clerk of a court in entering an order dismissing an action of replevin, will not have the effect of depriving the defendant of the right to a judgment in such action given him by Section 2189, General Statutes of Florida.</p>

<p>Writ of error to Circuit Court for Palm Beach County, E. B. Donnell, Judge.</p>

<p>Where under the'statute, an answer in chancery or a portion thereof may, on motion, be stricken for insufficiency, a single order striking several portions of an answer, some of which should not have been stricken, may be reversible error.</p>

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

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

<p>'ll 'A civil action 'for libel'will lié when there'has been A . false and unprivileged publication,- which- exposes a-:person to distrust, hatred contempt, ridicule or 'obloquy of which causes such person to be avoided, or which b|as a tendency to injure such person in his office, occupation, business or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his, personal, social, official or business relations of life, wrong ami injury are presumed or implied and such publication is ¡actionable per se.</p> <p>2. The language of a publication alleged to be libelous should be construed as the common mind would naturally understand it.</p> <p>3. A libelous publication falsely and maliciously made is not privileged. The protection of the privilege may be lost by . the manner 'of its exercise though the belief in the truth •of the charge exist.</p> <p>4. In an ¡action to recover damages for a published libel, it is held on'the facts of the case that there was reversible error in admitting testimony that the writer of the libellous article, an employee of the defendants, at a time and place when he was not acting within the scope of his employment, made statements that would indicate improper motives 'of the defendants in making the publication complained of.</p>

<p>1. Where- a grand jury does not know tile-specific description of money alleged..to have been obtained by false pretense, it may so aver, and. the allegation that .it was a certain number of dollars and cents, accompanied by a statement that a more particular 'or specific description is unknown to the grand jury is all that is required to- make the description sufficient .</p> <p>2. Names used in indictments with reference to the ownership of property will be taken to indicate persons.</p> <p>S. Ah allegation in an indictment that the money' or other thing of value obtained by false pretenses, was “the property of said Louis Nelson,” shows that Louis Nelson was a person as the capacity to own property is peculiar to human beings. '</p> <p>4. Where property is fraudulently obtained by the use of a privy 'false token, it is not necessary to allege the value of the token, nor to allege that it had iany value.</p> <p>5. In an indictment charging a person with obtaining money by false pretenses, proof that the defendant obtained the money through the medium of an order on a bank or other person, whether verbal or written, is sufficient to sustain the allegation.</p> <p>6. It is not necessary that the fialse representations be entirely by spoken or written words; acts and conduct in connection with the same, or acts and conduct alone, may establish the false representations.</p> <p>7. The Florida statute which provides that “whoever designedly by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property,” etc., includes cheating by the use bf privy, false tokens as well as by false representations orally made.</p> <p>8. Where a check or tablet of metal or other material is used by tradesmen or others as evidence of an amount due, redeemable in the hands of the holder, in money or merchandise, tablets or checks made in imitation of the genuine, if used fraudulently to obtain mbney or property from another, are privy or false tokens within the meaning of the statute against false pretenses.</p>

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

<p>Appeal from Circuit Court for Gadsden County, C. L. Wilson, Judge.</p>