Volume 76 — Florida Reports

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

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

<p>.1. A general right exists in the common council or other proper hoards of incorporated cities or towns to refund to individuals any sums paid hy them as eorpprate taxes which are found to have been wrongfully exacted or for any reason, inequitable.</p> <p>2. Where a license to do business granted by a municipality, becomes inoperative by operation of law, the licensee may recover the unused portion of his license tax from the municipality.</p> <p>3. Under the implied powers granted to municipalities, they have' power to and it is their duty to return -money received for a privilege which the person who paid it is prevented from enjoying through the operation of law through no fault of his.</p>

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

<p>1 Where the only evidence of the guilt of persons charged with larceny, is that they were out hunting in the vicinity where the remains of a dead animal of the hovine species were found, from which most of the meat had been taken, and that one of the defendants had some beef in his lunch bucket, and one of them had beef for dinner, several days thereafter, and there is no proof of the ownership of the animal alleged to have been stolen, and none that anybody had lost one, the evidence fails to make out the offence charged.</p> <p>2. Where there is no substantial evidence upon which to find a verdict, of guilt, the judgment will be reversed.</p>

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

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

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

<p>1. Where one loans money upon real estate security for the express purpose of ¡paying off prior existing liens upon such real estate, and it is expressly agreed that intervening liens thereon will be released or subordinated to such security, and the money loaned is so used and a bona fide though futile effort is made to subordinate such intervening liens to such security and thus give to it the same legal status as that occupied by the liens that are so ’ paid off, he will be treated in equity as an equitable assignee of such liens and will be subrogated to the rights of such lienors to the extent that the money advanced by him was applied to the payment of such liens.</p> <p>2. - • The agreement out of which conventional subrogation arises and upon which it rests may be either express or implied.</p> <p>3. One who, upon the application of the owner, lends money upon land understanding that his security shall be a first lien thereon and the money so loaned is used to discharge then existing first liens tipon such land is not a mere volunteer.</p>

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

<p>Appeal from Circuit Court for Broward County, E. B. Donnell, Judge.</p>

<p>Where money is procured to pay balance of purchase price for lands and an absolute conveyance of the land is made by the borrowers to the lenders of the money, with a contract to reconvey upon payment of stated amounts including the money borrowed with interest at '8% per annum and also a fee due by the borrower to attorneys who represented the borrower in a specific performance suit by which the borrower obtained title to the lands from his vendor, and including also a large bonus from the borrower to the lenders of the money, and the money borrowed is used in paying the balance of the purchase price of the lands to the borrower’s vendor, and the borrow brings suit to have the conveyance to the borrowers decreed to be a mortgage under the Statute with a right to redeem, and that the mortgage is usurious, the borrower in this bill to redeem the lands from the absolute conveyance specifically asked' to be allowed to redeem therefrom by paying such sum, if any, found to be due and “expressly offers and agrees to pay into Court any such sum or sums so found to be due, upon a determination of the amount thereof by the Court” and the Court upon full hearing decrees the transaction “was and is only a mortgage and operates as a specific lien and security only,” decrees it to be usurious, and under the prayer of the bill decrees that the complainant may redeem upon payment of the amount borrowed with interest at 8% per annum, together with the mentioned attorney fee due by the complainants, the Court expressly decreeing “that jurisdiction of this cause is hereby retained for the purpose of allowing the defendants, if so advised, to file a cross bill (leave for such proceeding being hereby granted) to foreclose the said deed of March 24th, 1914, as a mortgage,” and such decree Is affirmed by the by the Appellate Court on appeal taken by the defendants therein, the complainant not taking an appeal or assigning cross errors, but contended for the affirmance of the decree rendered as prayed by him, and subsequently the defendants by cross bill pursuant to the terms of the decree in the original suit, seek the enforcement of the lien upon the lands decreed on the original bill, the complainants in the original bill, defendant in the cross bill, are bound by the decree obtained by them, even though under the Statute the original transaction was a usurious mortgage.</p>

<p>1. The legal effect of evidence or the lack of evidence in its relation to a verdict rendered in a trial may by appropriate proceedings be reviewed by an Appellate Court, yet conflicts in competent testimony, the weight of legal evidence, and the credibility of competent witnesses are primarily for the determination of the jury; and where there is some substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the • record to indicate that the jury were not governed by the evidence, a refusal of the trial court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not be disturbed by the Appellate Court.</p> <p>2. In this jurisdiction the statutory offense of buying and receiving stolen property knowing it to have been stolen is a substantive offense, distinct from the crime of the larceny of the property.</p> <p>3. One who commits larceny may not be convicted of buying and receiving the stolen property, upon a charge of the statutory offense of buying and receiving stolen property knowing it to have been stolen. Adams v. State, 60 Fla. 1, 53 South. Rep. 451.</p>

<p>A case of original jurisdiction.</p> <p>Browne, C. J., and Taylor, J., dissent.</p>

<p>1. In a .prosecution against a man and a woman for living in an open state of adultery, proof that one of the parties so living is married is sufficient to establish the guilt of both'.</p> <p>2. When a man and a woman who are not married to each other, occupy a small house together, sleeping in the same room and in the same bed, and who continue such relations for a month, and there is evidence showing illicit connection between them, and one of the parties is married, such facts are deemed sufficient to establish their guilt upon an indictment charging them with living in an open state of adultery.</p>

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

<p>1. The legal effect of the verdict of a Jury finding a defendant gulity upon one count of an information is to acquit him of the offense or offenses charged in other counts of. such information.</p> <p>2. While the legal effect of evidence or the lack of evidence in its relation to a verdict rendered hy a Jury in a trial may by appropriate proceedings be reviewed by an Appellate Court, yet conflicts in competent testimony, the weight of legal evidence, and the credibility of competent witnesses are primarily for the determination of the Jury; and where there is some substantial competent evidence of all the facts legally essential to suport the verdict and there is nothing in the record to indicate that the Jury were not governed by the evidence, a refusal of the Trial Court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not be disturbed by the Appellate Court.</p> <p>3. In a criminal prosecution for burning a building which was insured, with intent to injure the insurer, it is not error to permit an insurance agent to testify from his records as to his knowledge of the eyistence of a policy of insurance issued by him covering the building, the defendant being entitled to the possession of the policy and cannot be required to produce evidence against themselves.</p> <p>4. Under an indictment charging one with the statutory offense of burning certain merchandise and furniture and fixtures which were at the time insured against loss or damage by fire with intent to injure the insurer a corporation, proof that such corporation is a corporation de, facto is competent and sufficient.</p> <p>5 It is not reversible error to admit incompetent testimony where it is afterwards excluded and the jury is instructed to disregard it.</p>

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

<p>Writ of Error to Criminal Court of Record for Dade County, James T. Sanders, Judge.</p>

<p>Prisoner remanded to the Sheriff.</p>

<p>1. Upon a charge of larceny where there is conflict in the • evidence as to the intent with which the property was taken, or it is of such a character as to legitimately authorize an inference of a felonious purpose, then the matter should be submitted to the Jury without any intimation from the Trial Court as to the force of presumptions of fact arising from any portion of the testimony.</p> <p>2. In cases of larceny the question of the intent with which the accused took the porperty, with the theft of which he is charged, is primarily one of fact to be decided by the Jury, subject to review by the Court.</p> <p>3. Where there is substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the record to indicate that the Jury were influenced by considerations outside the evidence, this Court will not disturb the verdict.</p>

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

<p>1. Chapter 7462, Acts of 1917, does not require the County Commissioners to employ experts to furnish, or to otherwise acquire any particular data or information on which to act in determining the amount of bonds that may be voted on under that Statute; and action taken pursuant to the Statute will not be disturbed by the Courts in the absence of a clear showing of fraud or abuse of authority.</p> <p>2 The law-making .power of the Legislature of a State is subject only to the limitations provided in the State and Federal Constitutions, and no duly enacted Statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that, under any rational view that may be taken of the Statue, it is in positive conflict with some identified or designated provision of constitutional law.</p> <p>3. A Statute Should be so construed and applied as to make it valid and effective, if its language does not exclude such an interpretation.</p> <p>4 Where a Statute does not violate the Federal or State Constitution, the Legislative will is supreme, and its policy is not subject to judicial review. The Courts have no veto power, and do not assume to regulate State policy, but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce Statutes only when to do so would violate organic law. .</p> <p>5. The Constitution is the controlling law; and, while, in' appropriate proceedings properly taken, it may be the' duty of the Court to declare a Legislative enactment to he inoperative in whole or in part, if it plainly violates the Constitution; yet, as under our system of government the law-making power of the Legislature is subject only to the limitations contained in the State and Federal Constitutions, the Court should, in deference to the Legislature, take care to so interpret an enactment as to make it consistent with the Constitution, if it can be done upon any reasonable consideration of the legislative intent, as shown by a fair application of all- the language used to the purpose designed to be accomplished by the enactment.</p> <p>6. Neither the Constitution nor the common law defines the line of separation between the powers that shall be exercised directly by the Legislature and those that may be indirectly exercised through delegated authority.</p> <p>7. Where the Legislature had authority to provide a governmental regulation, and the organic law does not prescribe the manner of adopting or providing it, and the nature of the regulation does not require that it be afforded by direct legislative act, such regulation may be provided either directly by the Legislature, or indirectly by the legislative use of any appropriate instrumentality, where no provision or principle of organic law is thereby violated.</p> <p>8. In order to justify the Courts in declaring invalid as a delegation of legislative power a Statute conferring particular duties or authority upon officers it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department under Article II of the Constitution, and the conferring of it is not warranted by other provisions of the Constitution.</p> <p>9. The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself designed to accomplish a general public purpose, and may expressly authorize designated officials within definite limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.</p> <p>10. Authority to make rates, rules and. regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations, is not an exclusively legislative power, hut it may he delegated hy law to appropriate tribunals, to he performed as an administrative function.</p> <p>11. The governmental powers that are divided into the legislative, executive and judicial departments, and the exercise of which is forbidden to persons not properly belonging to the particular department, are those so defined hy the Constitution, or such as are inherent or so recognized by immemorial governmental usage, and which involve the exercise of primary and independent will, discretion and judgment, subject not to the control of another department but only to the limitations imposed by the State and Federal Constitutions.</p> <p>12. All official duties, authority and functions prescribed or contemplated by law are not necessarily governmental powers within the meaning of the constitutional provisions separating the powers of government into departments.</p> <p>13. The division of governmental powers into legislative, executive and judicial, is abstract and general, and is intended for practical purposes. There has been no complete and definite designation by a paramount authority of all the particular powers that appertain to each of the several departments. Perhaps there can be no absolute and complete separation of all the powers of a practical government.</p> <p>14. A clear violation of the constitutional provisions dividing the ipowers of government into departments should he checked and remedied; but where a reasonable doubt exists as to the constitutionality of a Statute conferring power, authority and duties upon officers, the legislative will should be enforced by the Courts to secure orderly government, and in deference to the Legislature whose action is presumed to be within its powers, and whose law-making discretion within its powers is not reviewable by the Courts.</p> <p>15. Where a duly enacted Statute confers upon officials authority that is not in its nature exclusively and purely a legislative, executive or judicial power, and it can fairly be done to accomplish a valid legislative purpose, such authority may be construed as an adminitsrative duty rather than as a governmental power.</p> <p>16. The terms “legislative powers” and “legislative authority” as used in Articles IX and III of the State Constitution, mean the power or authority to enact laws, or to declare what the law shall be. Such “powers” and “authority” appertain exclusively to the legislative department, and they cannot lawfully be delegated.</p> <p>17. Authority to perform functions that are not exclusively legislative but are administrative in their nature, may be by Statute conferred upon other officials.</p> <p>18. While the Constitution provides that “no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for. by this Constitution,” it does not forbid the performance by any officer, whether legislative, executive or judicial of administrative functions or duties when they are imposed by Statute.</p> <p>19. Where a Statute defines the general outlines for its operation, and therein provides that stated persons, officers or tribunals shall, within designated limitations, perform acts or ascertain facts upon which the Statute by its own force will operate to accomplish the law-making intent, the action by the persons, officers or tribunals within the stated limitations may be administrative and not exclusively legislative, executive or judicial in its nature and essence. When the functions so assigned are administrative in their nature or are not exclusively legislative, executive or judicial in character the Statute does not delegate legislative power or confer exeutive or judicial power and authority in violation of Article III. And the performance of such a duty by a “person properly belonging to one of the departments” of the' government is not the exercise of “any powers appertaining to either of the others” in violation of Article II.</p> <p>20. The fixing of tolls for the use of a bridge may be done directly by legislative enactment; but it is not' a power that must be exclusively exercised by the Legislature. The fixing of such tolls may be regarded as an administrative function that may be delegated by the Legislature; and the Constitution does not forbid the performance of administrative functions by the Courts.</p> <p>21. While the Courts may not without sanction of organic law prescribe rates for public charges, yet when the reasonableness of a rate is determined on existing facts duly admitted or proven, a Statute under which such determination is made, may by its own terms continue in force for future periods, rates found to be fair and reasonable.</p> <p>22. The Statute, Chapter 7462, Acts of 1917, provides for determining by an election whether a bridge should be built and whether it should be free or toll. It also provides that tolls shall be “fair and reasonable.” This is the limitation; and neither the provision for fixing the tolls by the County Com- . missioners nor that for the approval thereof by the Circuit Judge is clearly violative of the second and third articles of the State Constitution.</p> <p>23. The provision of Section 5, Chapter 7462, Acts of 1917, that whenever the County Commissioners shall fix any toll or charges for a County bridge under the Act, such tolls and charges shall be reviewed by a Circuit Judge, who after hearing shall “enter an order approving such tolls and charges in whole or in part, or increase or decrease the same as he shall determine from the evidence as fair and reasonable,” does not violate Article II or Section 1 of Article III of tlie State Constitution, separating the powers of government in legislative, executive and judicial departments, vesting the legislative authority of the State in the Senate and House of Representatives, and forbidding any person properly belonging to one department to exercise any powers appertaining to either of the others.</p>

<p>1. Testimony of the contents of letters from a disinterested person to a witness testifying in the trial of a defendant upon a criminal charge is heresay and inadmissable.</p> <p>2. Where there is substantial competent evidence in the record of all the facts legally essential to support the verdict, and there is nothing to indicate that the Jury were not governed by the evidence, the refusal of the Trial Court to grant a new trial, on the ground of the insufficiency of the evidence to support the verdict, will not be disturbed by the Appellate Court.</p>

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

<p>Writ of Error to Circuit Court for St. Lucie County; E. B. Donnell, Judge.</p>

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

<p>1. "Where it does not appear that the assistance of counsel was desired by an accused at his trial, the mere failure of the Trial Judge to ask him if he desired counsel or was unable to employ counsel to represent him in the case, or to inform him that he had a right to be represented by counsel, or that the Court would appoint counsel to represent him if he so desired, does not show a deprivation of any right secured to the accused by law; nor does this omission alone show erroneous or harmful procedure or warrant a reversal of a judgment of conviction7 when it does not appear that the defendant did not have a fair trial wherein all his substantial rights were accorded to him in due course.</p> <p>2 A party on trial for a felony may waive his right to have counsel and may conduct his own defense under the Statute which provides that “any person may manage his own cause in any of the Courts of this State.”</p>

<p>1. Where a person is engaged in soliciting membership in a society for which he receives a fee from the person solicited if he is accepted, and %uch society had previously entered into an arrangement with a fraternal benefit association that is not authorized to do business in the State of Florida, he in effect is soliciting membership in such fraternal benefit association.</p> <p>2. Where the act of joining a society ipso facto enrolls a person in a fraternal benefit association not authorized to do business in Florida, one who is engaged in soliciting membership in such society and receives compensation for his services from the persons solicited, is soliciting membership in the fraternal benefit association.</p>

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

<p>Where the evidence is legally sufficient to sustain a conviction of one defendant, hut is not sufficient to sustain the conviction of another defendant, as to whom no harmful errors appear, and the judgment of conviction is severable, the judgment will be reversed as to the first mentioned, and affirmed as to the second mentioned defendant.</p>

<p>1. A Trustee of County bonds is an employee in a County office within the meaning of Section 3317, General Statutes of 1905, Compiled Laws of 1914, defining embezzlement by State, County and Municipal officers and “any Deputy, Clerk or employee in any ¡átate, County or Municipal office.”</p> <p>2. Where an information charges that the defendant “an officer of the County,” to-wit: “A Trustee of County Bonds” did receive and embezzle, etc., the words “an officer of the County” ma.y be regarded as harmless surplusage.</p> <p>3. Alleged errors in giving or refusing charges or instructions, and the admission or rejection of testimony which do not weaken the effect of the admitted testimony, and which do not reach the legality of the trial itself will not be considered grounds for reversal where the evidence leaves no room for reasonable doubt of the defendant’s guilt.</p> <p>4. A judgment of conviction will not be reversed on writ oil 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 defendant were violated, and is appears from the whole record that such technical errors, if any, were not prejudicial to the defendant.</p>

<p>1. A judgment imposing a fine and containing a provision that in-default of the payment of the fine the defendant be confined in the penitentiary is defective, the alternative sentence should be confinement in the County Jail.</p> <p>2. A motion in arrest of judgment reaches only such errors as appear upon the record and when addressed to the indictment or information is effective only when they wholly fail to charge any offense or their allegations are so vague and uncertain as to embarrass the defendant in the preparation of his defense or expose him 'aftter acquittal or conviction to substantial danger of another prosecution for the same offense.</p> <p>3. A motion in arrest of judgment does not raise the question of the sufficiency of the evidence, nor does it reach a question of variance between the allegation and proof.</p> <p>4. An indictment or information deemed to be defective in point of form because of a faulty allegation of some material fact or element in the crime attempted to be charged should be attacked by demurrer or motion to quash. The point should not be deferred until after verdict and then incorporated in a motion in arrest of judgment.</p> <p>5. An indictment for obtaining money under false pretenses which alleges that the prosecutor was induced to pay and the defendant did then and there receive, the money is sufficient upon a motion in arrest of judgment to show a delivery to and receipt by the defendant of the money alleged to have been obtained.</p> <p>6. The County School Fund is a County fund, the moneys in which are set apart for a special purpose, vie., the maintenance and support of public free schools. The disbursement of the fund is a duty or trust committed to the County Board of Public Instruction, which Board is prohibited by the Constitution from disbursing the money in such fund for any other purpose than the maintenance and support of public free schools.</p> <p>7 To constitute the statutory offense of obtaining ¡property-by false pretenses there must not only have been a false representation by the defendant of a part or existing fact or circumstance, and such representation believed by the other party, but the latter party must have parted with his property to the defendant because of the representation.</p> <p>8. ' An indictment against one for obtaining money by false pretenses should allege the connection or relation between the representation or statement and the delivery of the property by the prosecutor, when it does not appear that there is a natural connection between the two.</p> <p>9. A false statement or representation of a fact by one per son to another for thei purpose of obtaining property from the latter, must be of such nature or character as that if the fact was as represented it would place upon the latter a duty, obligation or desire to part with the property demaneded. This is the so-called causal relation between the representation or statement and the delivery of the prop' erty and is an essential element of the crime of obtaining money or property by false pretenses.</p> <p>10. In an indictment for obtaining property by false pretenses it is not sufficient to allege merely that the defendant’s statement or representation induced the prosecutor to part with his property, but the causal relation must either appear because of the natural connection between the statement and the delivery of the property or it must be alleged specifically.</p> <p>11. Public boards or commissions charged by law with disbursing public moneys have no lawful authority to part with the public money in their charge except for the purposes designated by law. A statement of fact, therefore, made to such board which does not place upon the board under the law the duty or obligation to disburse the public fund or a portion of it in their charge, cannot in law be the subject of a false representation so ’ as to constitute the crime of obtaining money or property by such means.</p> <p>12. The County Superintendent of Public Instruction has no authority under the law to make a contract in behalf of the County Board of Public Instruction without the latter’s express authority to pay a stenographer in the Superintendent’s office for services rendered to the latter either in his proviate or official character, that will create an obligation or duty on the part of the County Board of Public Instruction to pay such expense out of the County School Funds. Whether the County Board has the power to authorize the County Superintendent to employ a stenographer for any special purpose to be paid out of the County School Fund not decided, because the indictment in this case neither states such to he the fact, nor for what purpose the stenographer was employed.</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 when the proof is full and satisfactory as to the mistake.</p> <p>2 The right to the reformation of an instrument is not absolute, but depends on an equitable showing.</p> <p>3. While equity will reform a written instrument when by a mistake it does not contain the true agreement of the parties yet it will only do so when, the mistake is plain and the proof full and satisfactory. The writing should be deemed to be the sole expositor of the intent of the parties until the contrary is established beyond reasonable con-, troversy.</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>Appeal from Circuit Court for Levy County; J. T. Wills, Judge.</p>

<p>1. A motion in arrest of judgment must be based upon matters appearing on the face of the record.</p> <p>2. Motions in arrest of judgment arise from intrinsic causes appearing upon the fact of the record, and must be founded upon such matter as would, upon demurrer, have been sufficient to overthrow the action or plea.</p> <p>3. 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>4. Where a praecipe for summons is filed and summons is issued thereon to three persons and served on two of them returnable to April rule day on which day the two enter an appearance, and the declaration in assumpsit is not filed till August, but default judgment for failure to plead is entered, subsequent to which time during a term of the Circuit Court, the amount due was ascertained by a Jury and judgment rendered thereon, a motion in arrest of judgment is properly denied.</p>

<p>L Habeas corpus is appropriate as a remedy to secure release where a person is held in custody on a warrant of arrest when the charge has no basis in a valid law or ordinance, or wholly fails to state an offense under the law, or the Court is without jurisdiction of the matter.</p> <p>2 A warrant of arrest issued by a municipality should definitely charge a violation of a valid ordinance.</p> <p>3. Where there are valid, local or special laws relating to the powers and government of particular municipalities that are in conflict with the General Statutory Law, such local or special laws prevail.</p> <p>4. If reasonable doubt exists as to particular power of a municipality it should be reserved against the City.</p> <p>5. A general clause conferring power upon a municipality can give no authority to abrogate the limitations contained in the special provisions.</p> <p>6. When, authority and powers with reference to a particular subject are expressly conferred on specific terms upon municipalities, other authority and powers that in their nature or extent would materially increase or he inconsistent with the powers that are expressly given in specific and limited terms, are not to- be implied, particularly when the powers expressly given do not include all the authority that may have been conferred with reference to the designated subjects.</p> <p>7. Where a City may legally adopt ordinances prescribing the character of buildings that may be constructed and the character of repairs that may be made upon buildings only “within the fire limits” of the City, a warrant of arrest charging that the defendant “covered a building within the City limits” in violation of an ordinance of the City, is wholly insufficient as authority to detain the defendant in custody and he may be discharged on habeas corpus.</p>

<p>1. In construing a contract no word contained in it is to be treated as a redundancy if any meaning reasonable and consistent with other parts can be given to it.</p> <p>2. In a contract in which, the terms “put in, operated and maintained” are used, each described a separate and distinct act or class of acts and neither means exactly the same as the other, and no one of them can be rejected as surplusage.</p> <p>3. A City has the right to purchase a right-of-way over the ” lands of a railroad company. It may ¡pay for the same in cash, or it may be in consideration of the benefits which the city derives from the opening of a street over the railroad company’s land take upon itself the expense of affording protection to persons and property using the strfeet.</p> <p>4 Where a City receives from a railroad valuable property rights which it could not have taken without just compensation, and also received other and greater benefits in the removal of switching operations from the heart of the City to several miles distant, for which the only consideration on the part of the City was that it would bear the expense of operating police and mechanical guards at the crossing, such obligation on the part of the City is not a contract to barter away its police power.</p> <p>5. A contract between a City and a railway company whereby the latter in consideration of the City bearing the expense to put in, operate and maintain a street crossing, grants to the City a right-of-way over its property for such street, is not a bartering or contracting away of the police power of the City.</p>

<p>Habeas Corpus — Constitutionality of Criminal Statute May Be Tested by — Chapter 7284, Laws Approved May 1st, 1917, Held To Be Unconstitutifnal —Intoxicating Liquors — Constitutional Law.</p> <p>1. An information charging in six separate counts that the defendant:</p> <p>(1) Did unlawfully transport from a County in this State where the sale of intoxicating liquors is lawful, into a County where such sales were prohibited by an election held to decide such question of prohibition, two quarts of whiskey and four quarts of wine intended for the personal use of the defendant.</p> <p>(2) The second count is a duplicate of the first count except that it omits the allegation that the liquors transported were intended for the personal use of the defendant.</p> <p>(3) That the defendant is said County where the sale of such intoxicating liquors had been prohibited by an election held to establish prohibition therein did possess two quarts of whiskey and four quarts of wine, that were received by him from a carrier within a thirty-day period, the said liquors so possessed being then and there intended for the defendant’s personal use.</p> <p>(4) The fourth count is a duplicate of the third count except that it omits the allegation that the liquors so possessed were intended for the personal use of the defendant.</p> <p>(5) That the defendant did personally transport into said prohibition territory for his own personal use two quarts of whiskey and four quarts of wine.</p> <p>(6) The sixth count is a duplicate of the fifth count except that the allegation that the liquors transported were for the defendant’s own use is omitted. Held, to charge no offense in any Court thereof under any valid law of this State. Held further that Chapter 7284 Laws approved May 1st, 1917, undertaking to penalize the acts charged against the defendant in said information is unconstitutional and void.</p> <p>2. Intoxicating liquor is property that is the subject of private ownership as such, and the Legislature has no authority to prohibit its ownership, possession, transportation or personal use by the citizen either in, a prohibition County or a County where prohibition is not established, ulness in either of said counties it is shown that its possession is intended for the illicit sale thereof.</p>

<p>1. The common law rule that contributory negligence bars recovery, is in force in this State, it never having been modified by Statute in this class of cases.</p> <p>2. Contributory negligence to bar recovery does not clearly appear in this case.</p> <p>8. Where it clearly appears that damages awarded are excessive a remittitur may be directed, in default of which the judgment will stand reversed.</p>

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

<p>Where a defendant is charged with the statutory offense of withholding the means of support from “his wife and minor child,” and there is evidence on which under the Statute the defendant may he found not guilty as to his minor child, it is harmful error to charge the Jury in effect that if* he withholds support from either, he is guilty under the joint charge, where the Court refuses a requested instruction that if defendant is found guilty as to his minor child • alone, they should so state in their verdict.</p>

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

<p>Under the facts of this case the evidence is legally sufficient to show possession on which title by adverse possession may be acquired.</p>

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

<p>This case is decided upon the authority of Ex parte James Francis, decided here August 13, 1918.</p>

<p>Writ of Error to Criminal Court for Dade County; James T. Sanders, Judge.</p>

<p>1. In a prosecution for liaving carnal intercourse with an unmarried woman under the age of eighteen years, of previous chaste character, the previous chaste character of the prosecutrix is a material element of the offense to be alleged and proven.</p> <p>2. When the State has met the requirement of proving the •previous chaste character of the prosecutrix, it is competent for the defendant to introduce evidence that the prosecutrix, prior to the alleged acts of carnal intercourse with the defendant, had associated with persons of low morals, conducted herself in a free and intimate manner with men, or permitted them to take liberties with her.</p> <p>3. In a prosecution for having carnal intercourse with an unmarried woman under the age of eighteen years, of previous chaste character, it is reversible error for the Court to charge that “as to the previous caste character of the prosecuting witness the law presumes that every unmarried female is of chaste character until she has been, shown to be otherwise.”</p>

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

<p>Motion to strike denied.</p>

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

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

<p>Writ of Eror to Circuit Court for Santa Rosa County; A. G. Campbell, Judge.</p>

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

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

<p>State of Florida, Executive Chamber, Tallahassee, November 7, 1918.</p> <p>To the Supreme Court of the State of Florida, Tallahassee, Florida.</p> <p>Gentlemen:</p> <p>As' there are several important matters, involving the welfare of the. State of Florida, which will not wait until April for settlement and solution, I am writing your Honorable Body as to whether, in the exercise of the Executive function as Governor, in the calling of the Legislature of the State of Florida into extra session, it would be my duty to call the members, who formerly sat as your Legislature, or those who were elected on Tuesday, November 5th, into Executive Session.</p> <p>Yours very truly,</p> <p>SIDNEY J. CATTS,</p> <p>Governor.</p>

State of Florida, Executive Chamber, Tallahassee, November 7, 1918. To the Hon. Justices of the Supreme Court, Tallahassee, Florida. Gentlemen: Pursuant to Section 13, of Article IV of the Constitution of Florida, I respectfully request your opinion as to my constitutional duty and powers under Section 15, of Article XVI, Section 2, of Article II, upon the following: 1.

<p>1. An affidavit in support of a motion for continuance upon the ground of absent witnesses which shows that an effort was made to secure the presence of the witness at the trial by obtaining a subpoena for him to appear at the trial and testify, that it was served upon him in ample time to enable him to appear, and that he lived in a neighboring town in the same State, precludes any inference- of lack of diligence on defendant’s part in securing the presence of the absent witness.</p> <p>2. An affidavit for- continuance upon the ground of an absent witness, which contains a statement of facts to which it is affirmed the witness will testify and which appear to be material, should also set forth when and how the information was obtained by the affiant that the absent witness would testify as recited in the affidavit.</p> <p>3. The denial of a motion for -continuance made by the defendant in a criminal prosecution upon an indictment charging murder in the first degree, which motion is based upon the ground of the absence of a witness and is supported by a sufficient affidavit showing that the absent witness will testify to a state of facts tending to show the absence of premeditation, will be considered harmless error in view of a verdict of guilty of murder in the second degree which does not contain the element of premeditation.</p> <p>4. The denial of a motion for a continuance made by the defendant in a criminal case, which motion is based upon the ground of the absence of a witness and is supported by a sufficient affidavit showing the facts to which it is alleged the absent witness will testify will be considered harmless erroP if upon, consideration of all the evidence adduced at the trial it appears that the defense in support of which the testimony of the absent witness was desired was not under the law available to the defendant.</p> <p>5. A person who has been appointed by the Sheriff to be a Deputy under Section 1675b, Florida Compiled Laws 1914, and who has taken and subscribed to the oath prescribed by Statute and executed a bond with sureties and filed the same with the Board of County Commissioners, has no authority and under the law, is not allowed to perform any service as Deputy Sheriff until the bond is approved by the County Commissioners.</p> <p>6. In a criminal prosecution the defendant cannot avail himself of the defense of self-defense when it appears that the defendant himself brought on the situation under the compulsion of which he strikes the blow or fired the shot which he claims was justified.</p> <p>7. One who believing himsel to be a Deputy Sheriff, but whose bond as such has not been approved by the County Commissioners as the law requires cannot avail himself of the defense of self-defense when in attempting to arrest another without a warrant the latter resists and a situation results unedr the compulsion of which the defendant claims to act. The defendant is in the situation of one who has provoked a difficulty.</p> <p>8. In the trial of a cause the matter of permitting leading-questions is within the discretion of the Trial Court and is not reviewable on writ of error.</p> <p>9. A question propounded to a witness the answer to which may tend to incriminate the witness, may be excluded upon objection by counsel for that reason although the witness himself does not personally voice the objection.</p> <p>10. A question propounded during cross-examination of a witness which is not in cross of any matter connected with the material facts brought out in the direct examination and does not tend to elicit any fact showing motive, interest or animus of the witness, is properly excluded.</p> <p>31. The burden is upon the plaintiff in error to make the alleged error to appear because the presumption obtains that the judgment was right.</p> <p>12. It is not allowable upon cross-examination to impeach a witness upon an immaterial matter.</p> <p>33. It is not reversible error for the Trial Court upon motion of the State to strike testimony that is in effect a self-serving declaration of the defendant, not part of the res gestae, and harmful to the defendant in one aspect.</p> <p>14. A statement by the defendant at the time of the difficulty cannot be said to be part of the res gestae unless it is so closely connected with the difficulty as to appear to grow out of the transaction and exclude the idea that it was a mere recital of some feature of the difficulty, or an opinion or comment upon it, the result of thought or design.</p> <p>15. Where there is no doubt that the defendant unlawfully began a difficulty under the compulsion of which he acted and killed the deceased a threat by the deceased against the defendant made sometime recently before the homicide, is not admissible in behalf of the defendant.</p> <p>16. Where the Court overrules ah objection to an improper question, such ruling will not be considered, reversible error if the answer produces no injurious result to the defendant’s defense.</p> <p>IT. A defendant to whom the defense of self-defense is nol available may not show the mental attitude of his antagonist towards him even though that attitude was hostile to the defendant.</p> <p>IS. Instructions to the Jury requested by the defendant to be given which are inapplicable to the evidence are properly refused.</p> <p>10. Section 3732, General Statutes 1906, denounces as an offense the act of any one who having been appointed to any office assumes to perform any of the duties thereof before he has qualified according to law.</p>

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

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

<p>Writ of Error to Criminal Court of EecorcL for Dade County; James T. Sanders, Judge.</p>

<p>1. In habeas corpus proceedings for the custody of a minor child, where the petitioner moves for an award of the custody to him upon the return or answer to the writ, the movant thereby admits the material averments of the return or answer to be true.</p> <p>2. It appearing that tbe person to whom the father intends to commit the custody of his minor child, if the child is awarded to him, is an improper person for such custody, and it also appearing that the father is at the time engaged in the United States Military Service, an award of the present custody of the child to a suitable person is affirmed.</p>

<p>1. Under the first clause of Section 3526, General Statutes of 1906, prescribing a penalty against one who having a former husband or wife living, marries another person in this State, the second marriage constitutes the gist of the offense ancl must be laid in the indictment with particulars of time and place; but the first marriage being matter of inducement may be averred without particulars of time and place.</p> <p>2. In a prosecution under the first clause of Section 3526, General Statutes of 1906, an indictment which fails to allege tlie maiden name of the first spouse of the defendant but which does allege her name to be Mrs. (giving the name of the defendant), as Mrs. John C. Davis in this case, is not thereby rendered fatally defective and amenable to a motion to quash on that ground.</p> <p>8. Under the provisions of Section 1518, General Statutes of 1906 a duly authenticated copy of a record, of a Court of another State with the Seal of the Court annexed, of an application for marriage license, a certificate that such lij cense was issued, and the return of the Minister who united the parties in marriage pursuant thereto, which form a part of the records of such Court, is admissible in evidence in the Courts of this State.</p>

<p>A party arrested in D; County on a warrant issued in T. County and not endorsed as required by the Statute for service in D. County, was discharged on habeas corpus, and was again arrested on the warrant which had been properly endorsed since the first arrest is in a subsequent habeas corpus proceeding, properly remanded to be held under the warrant duly endorsed.</p>

<p>1. When an appeal is taken from an interlocutory order or a decree overruling a demurrer to the Bill of Complaint, and not from a final decree, assignments of errors relating to other interlocutory decrees will not be considered.</p> <p>2. Where the demurrer to a Bill of Complaint is addressed to the entire Bill of Complaint questioning the equities of the bill as a whole, it is a general demurrer, and, if, from the allegations properly pleaded, there is equity in the bill, it should stand.</p> <p>3. Section 54, Chapter 6421, Laws of Florida, Acts of 1913, is not according to its wording, application and effect, a burden upon interstate business, when applied to persons, firms or corporations engaged in both intrastate and interstate business.</p> <p>4. In computing the amount of license fee or occupational tax to be paid by the owner of a telegraph system, under the provisions of Section 54, Chapter 6421, Laws of Florida, Acts of 1913, the Comptroller should not include line mileage used by such owner solely for the transmission of interstate messages.</p>

<p>Writ of Error to Circuit Court for Volusia County; Murray Sams, Referee.</p>

<p>Where a garnishment bond is given to pay whatever sum is recovered against the defendant provided the plaintiff “shall ■prevail in the suit,” and the judgment for the plaintiff provides “that inasmuch as the defendant has been adjudged a bankrupt * * * since*the institution of this suit,, all proceedings on the execution when issued * * * are stayed as against said defendant,” the plaintiff having participated in the bankruptcy proceedings, and the execution of the judgment against the defendant having been stayed by the judgment itself, the plaintiff did not “prevail in the suit,” so as to make the sureties on the bond liable thereunder.</p>

<p>On Application for Rehearing.</p> <p>Rules Governing Application eor Rehearing.</p> <p>1. The proper function of a petition for rehearing- is to present to the Court in clear, concise terms some point that the Court overlooked or failed to consider, only this and nothing more.</p> <p>2. ' -The following are violations of the rule, that will cause dismissal of the application for rehearing, viz: (1) To accompany the petition with a written argument and citation of authorities; (2) joining issue with the Court in such application, as to the correctness of its conclusions upon points involved in its decision that were expressly considered and passed upon; and, (3) an application for rehearing that re-argues the cause in advance of a permit from the Court for such rehearing.</p>

<p>1. An agreement by which one enters upon the land of another and performs • labor thereon in cultivating the ground and harvesting crops is not an agreement by which an estate in the land is created.</p> <p>2. Section 2192, General Statutes of Florida, 1906, providing for a lien on farms, orchards, etc., in favor of any person performing by himself or others any labor thereon, includes the use of whatever tools, implements or teams that may be contracted for and used by the laborer in the performance of the labor.</p> <p>3. A lien is a, charge upon property for the payment of a debt or duty.</p> <p>4. Atwell had an agreement with Phillips to enter upon the latter’s land and cultivate and harvest the crops and Phillips would pay to Atwell one hundred dollars per month for the services of Atwell and his mules and wagon on the place. Before the expiration of the year Phillips sold the land to McKinney who knew of the agreement between Phillips and Atwell, and that the latter had not been paid for the length of time he had worked on the place, but McKinney did not continue the agreement with Atwell nor assume the contract for the unexpired time. Held, that a lien existed in favor of Atwell upon the lands for the length of time he labored upon the place to the date of sale to McKinney, but no lien existed upon the land as against McKinney for the remainder of the contract year.</p> <p>5 Whether the recovery of attorneys’ fees allowed under the Statute, Section 2218, General Statutes, 1906, is allowable, not decided.</p>

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

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

<p>An order of a Circuit Court made on a statutory ground in a capital criminal cause that “this cause he transferred to B. County” in another stated Judicial Circuit “for trial” and that the Clerk of the Court transmit “a correct transcript of all the minutes of this Court relating to this case together with the original papers, * * * to the Clerk of the Circuit Court of” the other stated County, is sufficient upon which the Statute may operate to transfer the cause to the Circuit Court of the stated County for trial.</p>

<p>1. Where suspensions from offices are made of “food, drug and fertilizer inspectors” who under Section 9; Chapter 6541, -Acts of 1913, are appointed for terms not exceeding four years, the Constitution requires the Governor to communicate the cause of such suspensions to the Senate at its next session after the suspensions.</p> <p>2. Supervisors of convicts, who under Chapters 5448 and 6530, Laws of Florida, “hold their appointments subject to the will of the Governor,” have no fixed terms, and suspensions from office under the Constitution of such appointees are not contemplated by the Statutes creating the offices.</p>

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

<p>In an action between the original parties to a promissory note which is sued on, while prima facie the abbreviations “Pres.” and, “Treas.” following the names of the makers of such note may be descriptive only, it is competent in such action to show by extrinsic evidence that such prima facie descriptive words were in fact understood as fixing and intended to determine the character in which the persons using them contracted.</p>

<p>X. For the purpose of determining whether a charge on a given subject is infected with error, the whole of the charge on the subject, and not portions of it only, should be considered.</p> <p>2. When a building has been entered and property stolen therefrom, and soon thereafter the property is found in the possession of the person charged with entering the building with intent to commit a felony, such possession unexplained may be sufficient to warrant a conviction of the crime of entering the building with intent to commit a felony.</p> <p>3 It is not error for the Court to refuse to give requested charges which are substantially covered by charges that are given.</p> <p>4. Charges to the Jury must be based upon facts in proof and must be applicable to such facts.</p> <p>5. Where an answer to a question presents 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 stating the grounds of his objections to the evidence with the same particularity required in objecting to a question.</p> <p>G. If a defendant wishes to avail himself of the omission of the Court to charge the Jury upon any point in the case he should prepare the required instruction and ask that it be given.</p> <p>7. Evidence examined and found, sufficient to support the verdict.</p> <p>Taylor,, J., dissents.</p>

<p>1. The purpose and intent of Section 3572, General Statutes of 1906, was to prohibit, not the gaming or gambling itself, but the keeping of a house or other place for any manner of gaming or gambling.</p> <p>2. Upon a charge under this Statute where it is alleged that the place in which the gambling occurred, was in the exclusive .possession and control of the defendant, where witnesses testifying refer to such place as “William Ponder’s place,” or “William Ponder’s place of business”; others say that “William Ponder was in charge when I went in there”; that they “heard William Ponder say it was his place,” and other similar expressions, and a witness who was a policeman, testified that “if Ponder would see me, he would make some motion to the crowd and, they would stop playing,” referring in each instance to the defendant, there is evidence to support a verdict of guilty upon such charge and no fatal variance between the pleadings and the proofs although the defendant himself testifies that he and his brother are in charge of such place, that they rent the building together, .pay taxes in their joint names upon the property employed in the business conducted in such place and, that the license for running such business is in their joint names.</p>

<p>1. Funds in the control of a Board of Public Instruction which were raised by the public for the specific purpose of building a school house, constitute trust funds for that purpose and may not be diverted to any other purpose until the purpose for which such funds were raised has been accomplished.</p> <p>2. One who has a claim against such funds under the regulations adopted for its proper disbursement may maintain a suit to enjoin the Board of Public Instruction from disbursing the funds for any purpose other than that for which they were raised.</p>

<p>Where the evidence does not sustain a verdict as found, the judgment thereon will he reversed.</p>

<p>Where the Court sustains a demurrer to an amended declaration with leave to amend by a stated day, and after the time allowed in which to amend the declaration, the Clerk upon praecipe of the defendant, dismisses the cause for failure to amend within the time allowed by the Court, such dismissal by the Clerk is unauthorized, and a writ of error taken thereto should be dismissed.</p>

<p>In a prosecution for larceny on a stated day of “one twenty dollar hill of the lawful money of the United States of America and of the value of twenty dollars, divers ten dollar hills of the lawful money of the United, States of America of the value of ten dollars .each, divers five dollar hills of the lawful money of the United States of America and of the value of five dollars each, divers one dollar hills of the lawful money of the United States of America and of the value of five dollars each, divers one dollar chattels of one W. O. Knighton and of the total value of one hundred and one dollars,” when the verdict is “We the Jury, find the defendant guilty and recommend him to the mercy of the Court, so say we all” such verdict is responsive to a charge of an entire offense in a single count; and a motion in arrest of judgment on the ground that the verdict should state the value of the stolen property is properly overuled.</p>

<p>1. Statutes giving tlie right of appeal should be liberally construed in furtherance of justice.</p> <p>2. Notices. of appeal should be liberally construed, and held sufficient if by fair construction and reasonable intendment the Court can say the appeal is taken from the decree in a particular case.</p> <p>3 Mistakes, inaccuracy of statement or unnecessary words or expressions which may be' rejected as surplusage, may be immaterial if the entry of appeal nevertheless contains enough to fairly identify the parties, the decree, the Court and the return day with reasonable certainty and show by apt words that an appeal was intended.</p> <p>4. While it should not be regarded as a model, the following entry of appeal will be held sufficient to give this Court jurisdiction of the cause when it appears from an inspection of the record that there is only one appealable order contained in it: “And now come the defendants, by Giles J. Patterson and Milam & Milam, their solicitors and counsel, and apply for and enter their appeal. * * * to the Supreme Court of the State of Florida, to be held at Tallahassee on the first Tuesday in April, A. D. 1918.”</p>

<p>Where a writ of error is issued and dated on the 30th day of May, and made returnable to the 30th day of August, it will be dismissed, as the Statute requires the return day to be more than thirty days and not more than ninety days from the date of the writ and the period from May 30th to August 30th is more than ninety days.</p>

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

<p>1. A writ of possession should not be issued against one in possession at the time suit was instituted, who is not a part to the suit, holds possession of the premises in his own right and under an independent claim of ownership.</p> <p>2. The issuing of a writ of assistance is largely discretionary with the Court but should, be granted only where the right of the applicant in whose favor the writ is sought to be issued is clear ana where it is doubtful the writ should be denied.</p>

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

<p>1. The question of whether a Bill of Particulars shall be furnished to a defendant upon request by him, or in his behalf, rests largely in the discretion of the Trial Court.</p> <p>2. The propriety of a motion to strike any item from a Bill of Particulars questioned.</p> <p>3. Where there is no misjoinder of offenses in an information, whether the prosecutor will be required to elect upon which of several counts contained therein he will try the accused is within the sound discretion of the Trial Court.</p> <p>4. Under the law (Sections 28, 33 and. 40, Chapter 5596, Acts of 1907, Laws of Florida), Tax Collectors of the Counties of this State are required to make remittances of State taxes eolletced by them to the State Treasurer and the original official receipts of the State Treasurer for amounts so received by him filed with the State Comptroller, so that credit therefor may be given to the Tax Collector making such remittances and a correct account kept by the State Comptroller with him, are admissable in evidence in a prosecution of such Tax Collector upon a charge of embezzlement of such taxes by such Tax Collector when such original receipts are produced by the State Comptroller and identified by him as such.</p> <p>5. Under the law (Section 40, Chapter 5596, Acts of 1907, Laws of Florida) Tax Collectors of the Counties of this State are required to make monthfy reports or “returns,” under oath, of State and County taxes collected by them and such original reports or “returns” so made are admissible in evidence in a prosecution' of the Tax Collector making them upon a charge of embezzlement of such taxes by such Tax Collector when such reports or returns are produced by the State Comptroller and identified by him as such.</p> <p>6. Copies certified by the State Comptroller under his official seal to be true and correct, of the books of account kept in the office of the State Comptroller with the Tax Collectors of the Counties of this State showing the amount of State and County taxes chargeable to such Tax Collectors as such, and the amounts collected and remitted from time to time by them, are admissible in evidence in a prosecution of the Tax Collector with whom such account is kept upon a charge of embezzlement of such taxes by such Tax Collector.</p> <p>7. Official registers or books kept by persons in public office in which they are required, whether by Statute or by the nature of the office, to write down particularly transactions occurring in the course of their public duties and under their personal observation, are generally admissible in evidence, notwithstanding their authenticity is not confirmed by the ordinary test of truth, the obligation of an oath, and an opportunity to cross-examine the person on whose authority the truth of the document depends.</p> <p>8. It is not necessary to the admissibility in evidence of an official register of this kind that a Statute should expressly require it to be kept, or that the nature of the office should render it indispensable.</p> <p>9. Where an official register is admissible in evidence, certified copies of entries therein are also admissible on account of the inconvenience of removing the originals.</p>

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

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

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

<p>Writ of Error to Circuit Court for Orange County; John M. Cheney, Referee.</p>

<p>1. In an action upon a promissory note the burden of proof under a plea of payment is upon the defendant.</p> <p>2. At the time of payment the debtor may direct to what items of an account the payment shall be applied; if he fails to so direct the application of such payments, his creditors to whom the payment is made may do so, but only to debts then due and existing and not to advances not yet made.</p> <p>3. Where there is a lack of evidence of material facts sufficient to support a verdict, a new trial should be granted upon motion.</p>

<p>■Where the plaintiff is the real party in interest and is testifying in the case he may under Section 21, Article XVI of the Constitution introduce a certified copy of a deed of conveyance that is pertinent to the issues when it is made to appear that the original is not . within the custody or control of the party offering such copy.</p>

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

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

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

<p>An Appeal from a Decree of* the Circuit Court for the County of Polk; John SAEdwards, Judge.</p>

<p>Writ of Error to Circuit Court for DeSoto County;. John S. Edwards, Judge. . ,</p>

<p>1. Pregnancy is not a personal ailment or condition of bad or o unsound health so as to violate an agreement or stipulation that a member of a beneficiary society shall not be reinstated after suspension for non-payment of dues, unless such member is in good health at the time of the reinstatement.</p> <p>2. In a suit on an insurance policy issued by a Beneficiary Society, where the terms of the contract provide for the reinstatement of a policy holder who is in arrears, upon his payment of all overdue assessments, provided “he be in good health at the time of making payment to the Financier, with a view to reinstatement,” a plea that the insured was “not in good health” at the time of his reinstatement, is too vague and indefinite, and the defendant may be required to set forth definitely and specifically in what respect the insured was not in good health, and the nature of his iU-health.</p> <p>8 Where such ill-health is pleaded, the burden of proof is upon the defendant to establish it by a preponderance of the testimony.</p> <p>4. The fact that an instruction contains the correct law governing the case is no grounds for exception if refused, if it appears that the Court’s charge covered the principle, embodied in the instruction requested, and fully and correctly instructed the Jury on the point.</p>

<p>1. A clause in a certificate of life insurance which requires preliminary proof of death ninety days before suit shall be brought upon the certificate, may be waived by the insurer and in case of such waiver suit may be brought ninety days after the death of the insured.'</p> <p>2. Where a party is not injured by the rulings of a Trial Court upon his pleas and is not prevented from submitting the subject and matter of such pleas to the Jury under such pleadings as secure to him the full benefit of his contentions, such rulings of the Court do not present good ground for reversal.</p> <p>3. Conditions precedent to the maintenance of a cause may be alleged by the complainant in general terms to have . been complied with, but if the defendant desires to contest the fact of compliance by the plaintiff with any one or more of such conditions he must aver in his plea definitely and specifically what conditions the plaintiff has not complied with and which are made the subject of contest.</p> <p>4. The purpose of all pleading under the system in force in this State is to arrive quickly and definitely at a certain and single material issue upon which the controversy may be determined.</p> <p>5. Where an application for a certificate of life insurance in a fraternal life insurance company contains a.clause certifying, agreeing and warranting that the applicant is in sound health, of temperate habits and has no disease or injury that will tend to shorten his life, and that the application to which he attaches his signature shall constitute the basis for and form a part of the beneficiary certificate, and further agreeing, certifying and warranting that all the statements, representations and answers in the application are full, complete and true, and that any untrue statement or answer made by the applicant, or any concealment of facts in the application, intentional or otherwise, shall render the certificate void, and the certificate afterwards issued upon such application declares that the application constitutes the contract or agreement between the insurer and the insured, t£ie statements and representations made by the applicant concerning his health and habits and the absence of injury or disease that will tend to shorten his life are warranties, and if such statements were untrue as made in the application they operate to defeat a recovery upon the certificate of insurance.</p> <p>6. Tlie burden of proof is upon tbe insurer who pleads a breach of warranty to a declaration upon a certificate of life insurance.</p> <p>7. A demurrer to a replication reaches back to a plea to which the replication is made.</p>

<p>Writ of Error to a Judgment of the Circuit Court for the County of Polk; John S. Edwards, Judge.</p>

<p>1. This Court will consider, without assignment, such errors as are jurisdictional and fundamental in character.</p> <p>2. In a prosecution for having carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years, the .chastity of the female at the time laid in the indictment when the act occurred must be established.</p> <p>3. In a prosecution for this offense, it is reversible error to admit testimony showing the sufferings, or impairment of health, of the prosecuting witness as a result of the carnal intercourse, as such testimony is not material to prove the issues, and tends to prejudice the minds of the Jury against the defendant.</p>

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

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

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

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

<p>Appeal from a decree of tlie Circuit Court for the County of Jackson; E. C. Love, Judge.</p>

<p>Appeal from an Order and Decree of the Circuit Court for the County of Duval; D. A. Simmons, Judge.</p>

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

<p>1. Every agreement which is required to be in writing under the Statute of Frauds, must be certain in itself, or capable of being made so by a reference to something else whereby the terms can be ascertained with reasonable certainty, without reference to parol proof. The entire agreement must be in writing and signed by the party to be charged.</p> <p>2. An executory agreement for the sale of land which fails to describe or otherwise identify the land and to name the purchase price and time of payment, is not enforceable.</p> <p>3. The written memorandum for the sale of land required by the Statute of Frauds cannot rest partly in writing and partly in parol, but the written memorandum must disclose all the terms of the sale.</p> <p>4. The Statute of Frauds requires that where there is a contract for the sale of lands “the agreement or promise * * * or some note or memorandum thereof, shall be in writing.” If the agreement or the promise or the note or memorandum thereof that is in writing, does not of itself or by permissible and proper reference disclose the essential terms of the contract to which the signed agreement or promise or the note or memorandum thereof refers, no action can be brought thereon, since the Statute is designed to prescribe the only mode by which an otherwise enforceable contract may be evidenced.</p> <p>5. A check endorsed “For first payment Conrad property foot of Waddell St.” and the amount thereof paid to the land owner’s agent, is not a sufficient “agreement or promise * * * or note or memorandum thereof” to evidence a contract for the sale of land under the Statute of Frauds; and an action for -damages for refusal to convey land cannot be maintained on such check.</p>

<p>Where the principal felon and an accessory before the fact are impleaded in the same indictment, and the principal pleads guilty and is adjudged guilty by the Court, and subsequently the accessory is found guilty, and the principal and accessory are sentenced on the same day, the sentences are legal, and where, no harmful errors of procedure appear the judgment sentencing the accessory will be affirmed.</p>

<p>1. Where an additional Judicial Circuit is created by law and after the adjournment of the Legislature, a Judge of such circuit is appointed by the Governor, which appointment is reported to and confirmed by the Senate at its next ensuing session, the commission issued to such Judge after being confirmed should be for the remainder of the term which began with the first appointment by the Governor if such term has not expired unfier Sec. S, Art, V. Const, as amended in 1902.</p> <p>2 Where an additional Judicial Circuit is created by law and’ after the adjournment of the Legislature a State Attorney for such additional circuit is appointed by the Governor and such appointment is reported to and confirmed by the Senate at its next ensuing session, the commission issued to such State Attorney after being confirmed, should be for four years from the first appointment by the Governor:</p>