Volume 79 — Florida Reports

An Appeal from the Circuit Court for Escambia County; A. G. Campbell, Judge. STATEMENT. Among the provisions of Chapter 7736, Laws of Florida, approved December 7, 1918, are the following: “Sec. 3.

<p>1. A shipper of goods by a common carrier is limited to a recovery of the declared value of such goods in an action by him for the loss of his property though occasioned by the negligence of the carrier.</p> <p>2. A contract fairly entered into by a shipper and a carrier as , to the value of goods accepted for shipment is binding upon the shipper in an action for the loss of such property.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Taylor; M. F. Horne, Judge.</p>

<p>A justice of the peace has no jurisdiction or power to adjudicate a lien upon homestead real estate; and the record of such a judgment in the office of the Clerk of the Circuit Court does not impart validity to it as a lien; upon homestead real estate.</p>

<p>I. . When a renewal note is given for the purchase price of land such renewal note does not change the character of the original debt. The renewal note is neither a payment of the old nor the _ creation of a new indebtedness unless the parties have expressly agreed to that effect.</p> <p>2. A judgment is not a lien upon land to which the judgment debtor has no legal title.</p> <p>3. A mortgage upon land for the purchase price of it executed at the same time that the deed therefor is executed so that they form one transaction, constitutes a superior lien úpon the land to that of judgments obtained prior to the execution of the deed.</p> <p>4. A mortgage upon land given by the purchaser of it to secure the payment of the purchase money, simultaneously with the conveyance to him, does not necessarily lose its character as a purchase money mortgage merely because it is taken in the name of a third person set the vendor’s request.</p>

<p>In a prosecution for larceny where there is substantial unconcroverted evidence to sustain the essential allegations of the indictment including those as to the ownership of the property stolen, a judgment of conviction will not be reversed on the ground that the ownership of the property was not sufciently proven.</p>

<p>I. In a suit to enforce a laborer’s lien when the evidence does not sustain the specific finding as to the amount due, the decree will be reversed for a proper decree.</p> <p>2. The suggested invalidity of Section 2218, General Statutes, 1906, allowing attorney fees to the plaintiff in suits to enforce the statutory liens of laborers and material men, not determined.</p>

<p>1. Under the provisions of Section 2700, General Statutes of Florida, stockholders of banking companies doing business under the general banking laws of this State are individually responsible equally and rateably and not one for another for all contracts, debts and engagements of such companies to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.</p> <p>2. The Live Oak Bank was incorporated by Act of the Legislature in 1895, the Legislative Charter containing the following provision: “No shareholder shall be liable for any debt of said corporation, except to the extent of his unpaid subscription to said capital stock.” Subsequently by unanimous action of the stockholders and the directors this charter was abrogated and a new charter was obtained from the State, pursuant to the provisions of Section 2727, General Statutes of Florida, under which charter such bank conducted its business as a banking company for a period of years, at the end of which time it and the Citizens Bank of Live Oak, a banking company organized and doing business under, the general banking laws of the State were consolidated and became , the Live Oak Citizens Bank.</p> <p>Held that a stockholder in the Citizens Bank of Live Oak who became a stockholder in the Live Oak Citizens Bank, the bank resulting from such consolidation and referred to in the agreement of consolidation as the “new bank,” can not successfully claim immunity and exemption from the double liability imposed by statute upon stockholders in banking companies doing business under the general banking laws of „ this State, upon the insolvency of such bank and an assessment made by the Comptroller against the stockholders thereof, because of-any supposed relationship of such stockholder to such Legislative charter containing such exemption.</p> <p>3. To permit the exemption from liability contended for in this case would give sanction to a fraud against the creditors of the bank which the law will not tolerate.</p> <p>4. It is provided by statute in this State (Chapter 6426, Acts 1913) that a .bank which in good' faith is winding up its affairs for the purpose of consolidating with some other bank may transfer its' resources and obligations to the bank with which it proposes to consolidate, “but no such consolidation shall be made without the consent of the Comptroller of the State, nor shall such consolidation operate to defeat the claim of any creditor or hinder any creditor in the collection of his debt against such banks or either of them.”</p> <p>u. A bank becomes the absolute owner of money deposited with it to the general credit of a depositor, in the absence of any special agreement importing a different character into the "transaction, and the relationship is simply that of debtor and creditor.</p>

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

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

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

<p>An Appeal from Orders of the Circuit Court within and for the County of Dade; H. Pierre Branning,, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County, of Walton; A. G. Campbell, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Madison; M. F. Horne, Judge.</p>

<p>Where a party seeks to establish in a court of equity a title in him to real estate, as to which defendants and their predecessors in interest have, in good faith, expended considerable money in obtaining a supposedly good title and in paying taxes, etc., the complainant should in appropriate circumstances be required to do equity to get the equitable relief sought.</p>

<p>A Writ of Error to the Circuit Court for Leon County, E. O. Love, Judge.</p>

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

<p>In an action to recover damages for injury to a child caused ■by the negligent operation of a draw bridge, where a cause of action is stated, and there is some substantial evidence tending to show a negligent injury as alleged, a verdict for the defendant should not be directed by the court.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Escambia, A. G. Campbell, Judge.</p>

<p>An Appeal fyom tlie Circuit Court for Hillsborough County, F. M. Bobbs, Judge.</p>

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

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

<p>A Writ of Error to the Court of Record for Escambia County; C. Moreno Jones, Judge.</p>

STATE OF FLORIDA, EXECUTIVE CHAMBER, Tallahassee^ Feb. 3, 1920. To the Honorable Justices of the Supreme Court of Florida, Tallahassee, Florida. Gentlemen: Under the provisions of Section 13 of Article IV of the Constitution of Florida, I have the honor to request your written opinion affecting my powers and duties as Chief Executive under the following provisions of the Constitution: “Section 24, Article IV.

<p>1. Appellees have a right to require papers used in the case but omitted by appellant from his directions to the clerk to be put in the transcript; but if such omitted papers are already on file in this court permission to use them on another appeal may be granted by this court in proper cases to save expense to litigants.</p> <p>2. Where an appeal has been duly taken, the statute requires the transcript of the record to be filed “in the Appellate Court on or before the return day,” and provides that if the transcript is not so filed, “it shall be the duty of the court, unless good cause be shown to dismiss” the appeal ‘on the adverse party producing a certificate from the clerk of the court below;” that an appeal “has been obtained,” etc.</p> <p>3. The court may on good cause shown extend the time for filing the transcript of the record in a cause and may permit the use of transcripts or portions thereof on. file in this court on a former appeal to save expense to litigants.</p>

<p>1. A contract whereby pianos;are consigned to a dealer for sale, is binding upon tbe creditors of the consignee.</p> <p>2. A contract whereby pianos are consigned to a dealer for sale is binding between, the consignor and consignee, but a purchaser from such dealer acquires good title as against such consignor.</p> <p>3. A consignment of goods for sale does not create the relation of vendor and purchaser hut the relator of principal and agent.</p> <p>4. An important inquiry in the case at bar was as to the intent of the parties.</p> <p>5. A conditional sale is valid and binding between the parties as well as upon the purchasers and creditors of the conditional vendee, with the exception if, however, the personal property is sold to a dealer in such goods for the purpose of resale, or if consent to a resale be given, a bona fide purchaser acquires good title as against the conditional vendor.</p>

<p>Where a party defendant in a chancery cause is materially affected by the decree rendered and the complainant takes an appeal -without making such defendant a party thereto, the appeal will be dismissed.-</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Dade; H. Pierre Branning, Judge.</p>

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

<p>1. Where C and R are jointly charged in an indictment containing two counts, C as principal in the first degree and R as principal in the second degree in the first count, and R as principal in the first degree and C as principal in the second degree, in the second count, and where R is acquitted on the ground of self defense C cannot be convicted as principal in second degree.</p> <p>2. The charge “Before the defendant Russell Kelley can be convicted of any crime, you as the jury trying this case, must find from the evidence that he acted of his own volition and ' not by direction and because of a fear of his father;” “An unlawful act committed by ¿ child in the presence of his father, at his direction because of the criminal intent of the father and not because of the wrong of the child, is the crime of the father and not of the child,” is erroneous where the testimony shows the son to be over seventeen years of age and there is nothing in the testimony to indicate that he was not in full possession of his mental and bodily faculties.</p> <p>3. Where a child commits an unlawful act in the presence of his father and at his direction and because of the criminal intent of the father it must appear from the testimony that tlie child was of immature years of mind and entirely under the domination, direction and control of the father, before the crime becomes that of the father and not of the child.</p>

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

<p>An Appeal from flie Circuit Court for Orange County, James W. Perkins, Judge.</p>

<p>EVIDENCE — LOST PAPER — WHEN SECONDARY PAROL EVIDENCE ADMISSIBLE TO PROVE CONTENTS OF.</p> <p>“The contents of a lost instrument cannot be proved unless it appears that reasonable search has been made in the place where the paper was last known to have been, and if not found there, that inquiry has been made of the person last known to have had its custody. The proponent must show that he has in good faith exhausted, in a reasonable degree, all sources of information and means of discovery which the nature of the case would naturally suggest, and that were accessible to him. If any suspicion hangs over a lost instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its non-production. But where there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original. The loss of it must be made out to the satisfaction of the court. The law exacts nothing unreasonable in such a case. If parol proof of the loss establishes the fact with reasonable certainty, or as it is stated by some of the authorities, if the proof establishes a strong probability of its loss, then secondary evidence is admissible.”</p>

<p>1. So much, of Section 1, Chapter 5214, Acts of 1903, Section 2875, Compiled Laws, 1914, as provides for the recovery of double damages for the killing of stock by railroad companies by reason of failure to fence tracks is not applicable in suits against railroads operated by the Federal Government under Act of Congress of 1918.</p> <p>2. Attorneys’ fees by statute being made costs and recovable as such in suits against railroad companies for failure to fence their roads may be collected in suits brought against the Director-General.</p>

<p>A writ of error to the Circuit Court for Jackson County, C. L. Wilson, Judge.</p>

<p>1. Under the statute writs of error lie only from final judgments and from orders granting new trials.</p> <p>2. Where no final judgment upon the merits of the cause in an action at law appears in the transcript of the record brought to the Supreme Court on writ of error to such a judgment, the writ of error will be dismissed at the cost of the plaintiff in error.</p> <p>3. Under the provisions of Section 1691 of the General Statutes of 1906, writs of error lie only from final judgments, and from orders granting new tyials, and when a transcript of record carried by writ of error to the appellate court for review fails to show a final judgment in the cause such writ of error will be dismissed by the court ex proprio motu.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; E. B. Donnell, Judge.</p>

<p>An Appeal from the Circuit Court for DeS'oto County; John S. Edwards, Judge.</p>

<p>An Appeal from a Dteeree of the Circuit Court within and for the County of Manatee, W. S. Bullock, Judge.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Pinellas, O. K. Reaves, Judge.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Pinellas, O. K. Reaves, Judge.</p>

<p>An Appeal from the Circuit Cdürt fed* Marion County, W. S. BUllbfck, Jiidge.</p> <p>In a suit brought to quiet title to land and for appro priate relief, upoh a hearing set tloWn by the defendahts on the bill; ahsiters and replications, the Chancellor finding that on the pleadings he could not “pass afiy intelligent decree for either party” dismissed the bill of complaint without prejudice and the complainant appealed. On the authority of the decision in Meffert v. Thomas, 51 Fla. 492, 40 South. Rep. 764, the decree should be affirmed. See also Tilghman Cypress Co. v. John R. Young Co., 60 Fla. 382, 53 South. Rep. 939.</p>

<p>A: Writ of Error to a Judgment of the Circuit Court within and for the County of Jefferson, E. C. Love, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court wihtin and for the County of Dade, H. Pierre Branning, Judge.</p>

<p>A Writ of Error to the Criminal Court of record, for Hillsborough Count, W. S. Graham, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Marion; W. S. Bullock, Judge.</p>

<p>1. The “parol evidence rule” is a rule of substantive law because it deals with the question of where and in what sources and materials are to be found the/ terms of a legal act</p> <p>2. When a legal act is reduced into a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act, and; the interest of the parties is the controlling consideration in determining whether a particular memorial should be deemed to embody the legal act covering a certain subject of negotiation.</p> <p>3. Where it appears that the particular element of an alleged extrinsic negotiation is not dealt with at all in the writing, it is presumed that the writing was not meant to represent all of the transaction on that element and parol evidence in proof of such element should be received; especially when the writing affirmatively shows that it was not intended to embody all of the transaction.</p> <p>4. A written contract whereby a general agent of a life insurance company employed a sub-agent, failed to state under what circumstances notes might be accepted for the amount of the first premium on policies sold, but expressly stated that the sub-agent’s duties were to obey the rules, instructions and regulations of the general agent in addition to the - duties enumerated in the writing; it was therefore competent for the parties, at or before the execution of the writing, to agree that the sub-agent might accept notes for the first annual premium on policies sold by him, but that he should be liable for the portion of- such premium due the company, and oral testimony of such agreement was admissible.</p>

<p>1. Where a suit for alimony is brought under Section 1933 General Statutes, 1906, predicated upon the existence of a ground for divoice, the complainant should allege and prove residence in this State for the requisite statutory period before the ling of the bill, and also the existence of the marital relation between the complainant and the defendant, and a ground for divorce under the statute in favor of the complainant.</p> <p>2. The common law is in force in this State, except where it is modified by competent governmental authority.</p> <p>3. No statute of this State expressly or by fair implication renders invalid or void marriage contracts between competent parties that are consummated under the recognized rules of the common law.</p> <p>4. Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change; and the rights and obligations of which 'depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority.</p> <p>5. ' The two essentials of a valid marriage at common law are •capacity and mutual consent, an'd it is well settled that under the common láw the marriage relation may be formed by . words of present.assent, per, vertía, de. praesenti, and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage.</p> <p>6. To constitute a valid marriage per vertía de praesenti there ■ must be an agreement to become'husband and wife immediately from the time when the mutual consent is given-. An express future condition is absolutely fatal to a claim of marriage, and cannot be explained away by circumstances.</p> <p>7. Marriages per verba cle futoro cum copula are not recognized in this State.</p> <p>S. The evidence does not show a marriage per verba de praesenii.</p>

A case of original jurisdiction. RTATEMEXT. Held: acquired, constructed or operated by the traction company, which shall Ik* paid in quarter-yearly installments, and this in addition to all other taxes imposed by law. “That the Jacksonville Traction Company operates all of the lines of electric railway in the city of Jacksonville and territory contiguous thereto, and that there is…

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

<p>Under an indictment for violation of Section 3528 of the General Statutes, 1906, for knowingly marrying the husband of another, where the evidence shows -that defendant knew the man whom she was about to marry had a living wife from whom he claimed to have been divorced, and she was advised not to marry him because he had not been divorced from his first wife, it was sufficient to put the defendant on notice and require her to make inquiry from the proper source to ascertain the truth or falsity of the report that the man whom she was about to marry liad obtained a divorce.</p>

An Appeal from the Circuit Court for DeSoto County, George W. Whitehurst, Judge. STATEMENT. On the 1st day of May, 1919, the complainant filed his bill against these defendants and others, asking that the common law suit of ejectment now pending in the Circuit Court of DeSoto County, between the complainant and the defendants, be enjoined, and that the complainant be given a lien for his improvements placed upon the said land, while he was supposed to be the owner thereof.

<p>An Appeal from the Circuit Court for Duval County, George Gouper Gibbs, Judge. -</p>

<p>In an action for personal injuries to an infant where there is substantial evidence to support a finding of negligence by the defendants within the allegations of the declaration, and contributory negligence does not clearly appear in view .of the age of the plaintiff and the circumstances of the injury, a. judgment for damages that are not excessive will be affirmed,</p>

<p>X. An order directing releases of lands to be made from a mortgage not within the provisions of the agreements, as to such releases will be reversed.</p> <p>2. Items of traveling expenses for complainant’s witness and attorney that are not contemplated by the covenant in the mortgage “to pay all costs, charges and expenses in collecting” a mortgage debt, are properly excluded in the accounting.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Hillsborough,; F. M. Robles, Judge.</p>

<p>1. Constitutional and statutory provisions relating to homestead exemptions are liberally construed in the interest of the family home.</p> <p>2. The homestead right is not limited to a mere holding of the legal title to the exempt property “from forced sale.” It contemplates and includes the beneficial, peaceful and uninterrupted use and enjoyment of such property. Such right is superior to the claim of creditors. The policy of the law concerning it is to preserve the home for the family, even at the sacrifice of just demands, and to protect the family from destitution and want.</p> <p>3. The theory of the law with relation to homesteads is based upon the idea that as a matter of public policy, for the promotion of the prosperity of the State and to render independent and above want each citizen of the government, it is proper he should have a home where his family may be sheltered and live beyond the reach of financial misfortune and the demands of creditors who have given credit under such a law.</p> <p>4. To allow a defendant the benefits of a plea of set-off in an action brought against him to recover the amount of damage sustained because of his wrongful invasion of plaintiff’s homestead right would, if defendant’s plea prevail, result in the subjection by indirect methods of exempt property to the payment of defendant’s demands against the plaintiff, although its subjection, thereto directly is not permitted.</p> <p>5. One cannot accomplish by indirect means what he is prohibited from doing directly.</p> <p>6. The amount of compensation for actual damage sustained because of an unlawful invasion -of plaintiff’s homestead rights, which he is entitled to recover, partakes of the nature of the homestead property and is exempt.</p> <p>7. B recovered a judgment against H and another. Execution issued upon such judgment and was levied! upon certain personalty and certain realty of H. The property so levied upon was claimed by H as exempt from seizure and sale for the purpose of satisfying such judgment upon the ground that it was the homestead of H and exempt from forced sale under the Constitution and laws of this State. Upon an application to anijoin.the sale the Circuit Judge held such property not to be exempt, but upon appeal to this court this order was reversed and the property held to be exempt from forced sale for the satisfaction of such judgment. Thereafter defendant in execution sued the plaintiff in execution to recover certain damages alleged to have been sustained because of the wrongful seizure and sale of such property. In this suit the original judgment was attempted to be set off against plaintiff’s claim. Held: that such judgment is not available as a setoff against plaintiff’s claim for damages to her exempt property and that the plea attempting to set off such judgment against plaintiff’s claim is not allowable.</p>

<p>1. Where the vendor after the contract conveys the land to a purchaser who takes with notice of the contract or who does not part with a valuable consideration, such grantee holds the land as a constructive trustee and is a necessary party in a suit to enforce specific performance.</p> <p>2. A court of equity will not entertain jurisdiction where the sole object of the bill is to obtain compensation for the breach of the contract except where the contract is of an equitable nature, when the complainant knew the defendant had conveyed the land; but the rule is otherwise when the complainant at the time of the filing of his bill did not know the land had been conveyed.</p> <p>3. A bill for spefiie performance setting up fraud in the conveyance to a third party and not making the third party a defendant in such a proceeding is demurrable for want of necessary party.</p>

<p>A writ of error to the Circuit Court for Dade County, I-f. Pierre Branning, Judge.</p>

<p>1. A clause in a policy of fire insurance upon a dwelling house providing that the policy shall be void if the insured does non own the fee simple to the property may be orally waived by the insurer.</p> <p>2. A policy of fire insurance may be reformed upon the ground of fraud or mutual mistake.</p> <p>3. A bill in chancery alleging the payment by the insured of the premium charged by the insurer and the issuing of a policy of insurance upon the dwelling-house of the insured with the knowledge on the part of insureris agent that the insured did not own the fee simple title is sufficient to support a prayer for relief upon a 'policy containing the so-called title clause.</p> <p>4. Where a bill in chancery waives an answer under oath the burden is upon the complainant nevertheless to establish the truth of the material allegations of fact upon which he bases his right to relief.</p> <p>5. Where a bill for tbe reformation of a policy of insurance contains allegations sufficient to show an agreement to issue a policy and the payment by the insured and acceptance by tbe insurer of the premium and a waiver of the so-called title clause, and prayer for the reformation of the policy alleged to have been issued and that the insurer be decreed to pay the loss alleged to have occurred under the policy, and for general relief, a decree granting relief in the matter of payment of the loss where the evidence supports such phase of the decree, will not be reversed because the evidence does not show that the policy was actually issued, hut will be affirmed upon the principle that the evidence showing an agreement to issue such a policy of insurance, the complainant would have a right to spefiic performance and the enforcement of the policy so decreed to be issued.</p>

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

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of Orange; James W. Perkins, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

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

<p>1. Where relief in equity is sought upon the ground that alleged relations of the parties and the transactions growing out of them charged certain properties with a trust for complainant’s benefit and the answer denies such relations and transactions, the burden rests upon complainant to prove such allegations of his bill.</p> <p>2. Where an alleged trust is based upon parol agreements, the evidence to support such trust must be so clear, strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust.</p> <p>3. Unless the chancellor’s findings appear clearly to 'have been erroneous, his decree based upon such findings will not be disturbed.</p> <p>4. Where relief is asked based upon the existence of a trust in real .property growing out of alleged partnership relations between the parties and the chancellor finds the evidence to be insufficient to support the allegations as to the existence of the partnership, the relief prayed for should be denied.</p>

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

<p>1. Where land was conveyed to both husband and wife an estate by entirety was created at common law and upon the death of one spouse the entire estate went to the other. The married woman’s laws of this State have not destroyed such estate and they are still recognized.</p> <p>2. From the peculiar nature of such an estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control and unity in conveying or encumbering it; and it necessarily and logically results that it cannot be seized and sold upon execution for the separate debts of either the husband or the wife. The estate is placed beyond the exclusive control of either of the parties, or the reach of creditors, unless it can be successfully attacked and set aside for fraud.</p> <p>3. The right of the wife to the joint enjoyment of the estate during the marriage is as valuable and sacred as the right of taking the entire estate by survivorship upon the death of her husband. The rights of the wife in the joint property are as sacred as those of the husband, and should be as firmly secured, guarded and protected by the law as are his.</p> <p>4. A bill in equity, containing no allegations of fraud, seeking to sequester a .portion of the rent derived from an estate by entirety to the satisfaction of the judgment against the husband alone is demurrable for want of equity — to permit such a procedure would be as hostile to the-interest of the wife to the joint use, occupation, possession and enjoyment of the estate as the levy of a fi -fa upon the interest of the husband in the land.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of DeSoto; -John S'. Edwards', Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Jackson; D. J. Jones, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court, within and for the County of Escambia; A. G. Campbell, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Polk; John S. Edwards, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Polk; John S. Edwards, Judge.</p>

<p>A writ of error to tbé Circuit Court for Duval County, Daniel A. Simmons, Judge.</p>

<p>Writ of Error to a Judgment of the Circuit Court within and for the County óf Dade; H. Pierre Branning, Judge.</p>

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

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

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

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

<p>1. A mortgage, properly executed by husband and wife, conveying the wife’s separate statutory real estate as security for the husband’s debt, is valid in this State.</p> <p>2. So far as real estate or immovable property is concerned, the laws of the State where it is situated furnish the rules which govern its descent, alienation and transfer, the construction, validity and effect of conveyances thereof, and the capacity of the parties- to such- contracts or conveyances, as well as their rights under the same.</p> <p>3. Although by the laws of the State of a married woman’s domicile she has no capacity to execute a mortgage upon her separate estate as security for the debt of her husband, yet if she in that State executes a mortgage of that character upon real estate in another State, whose laws permit a married woman to mortgage her real property to secure a debt, the mortgage will in the latter State be held valid and enforceable by appropriate proceedings. In this case a confirmatory deed of mortgage was executed in Florida by the married woman and her husband.</p> <p>4. Tlie validity and interpretation of personal obligations executed and to be performed in one State will be governed by the laws of that State when sought to be enforced in the courts of another State.</p> <p>5. “The lex loci rei sitae determines the validity of mortgages of real estate.”</p> <p>6. “The lex loci contractus determines the validity of promissory notes.”</p> <p>7. “The validity of a mortgage of real estate and its construction and effect are controlled by the law of the State where the mortgaged property is situated, although the mortgage is executed and the parties reside in another State.”</p>

<p>An Appeal from Decrees of the Circuit Court within and for the County of Sumter, W.- S. Bullock, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for- the County of Dluval, George Couper Gibbs, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough. F. M. Robbs, Judge.</p>

<p>A Writ of Errdr to the Circuit Court for Manatee County, O. K. Reaves, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Marion, 'W. S'. Bullock, Judge.</p>

<p>An Appeal from the Circuit Court for DeSoto County, John S. Edwards, Judge.</p>

<p>1. A prohibition will only be granted by the Supreme Court to control the action, of tribunals or persons exercising judicial power who attempt to usurp a jurisdiction belonging to some other forum.</p> <p>2. The statutes regulating the procedure in issuing writs of prohibition contemplate the use of the writ only to restrain the unlawful exercise of judicial or quasi-judicial power.</p> <p>3. The common law writ of prohibition is not a writ of right; but it is an extraordinary judicial writ, that in proper cases may be issued to restrain the unlawful exercise of judicial functions when no other adequate remedy is afforded by law.</p> <p>4. While a writ of prohibition may issue in a proper case to restrain an unauthorized or illegal judicial or quasi-judicial act, such a wrt may not be issued to restrain a legislative or quasi-legislative or a purely administrative or ministerial act not in its nature judicial or qwcm-judicial.</p> <p>5. In fixing rates to be charged by railroad common carriers for transporting persons and property the Railroad Commissioners exercise a guasi-legislative function some times regarded as being administrative, but not judicial in its nature.</p> <p>6. Where it is doubtful whether a statute authorizes a municipality to fix rates for a public utility company, such doubt must be resolved against tbo authority of the city.</p> <p>7. Even if authority is by statute given to a municipality to. fix, rates for a public service corporation operating therein, such authority is subject to legislative control.</p> <p>8. Any contract ordinance passed by the city with statutory authority fixing by agreement street' car fares, as an incident to the granting of franchises to a street railroad company, is subject to legislative control.</p> <p>9. The Charter Act of the City of Pensacola, Chapter 6746 Acts of 1913, does not clearly and plainly give to such city the power to prescribe rates for street car fares to the’ exclusion of State authority, if at all.</p> <p>10. Chapter 6527, Laws of Florida, approved June 7, 1913, gives to the Railroad Commissioners authority “to make reasonable and just rates of freight and passengpr tariffs to be observed by all railroads, railroad companies and common carriers doing business in this State,” which includes street railroads.</p> <p>11. Authority to prescribe reasonable and just rates of street car fares for the Penusacola Electric Company is by law vested in the Railroad Commissioners.</p>

<p>1. A common law dedication is the setting apart of land for public use, and to constitute it, there must be an intention by the owner, clearly indicated by his words or acts, to dedicate the land to public use, and an. acceptance by the public of the dedication. An offer to dedicate land to public use may b§, revoked by the owner at any time before it has been accepted by the public.</p> <p>2. The platting of land and the sale of lots pursuant thereto creates as between the grantor and the purchasers of the lots, a private right to have the space marked upon the plat as streets, alleys, parks, etc., remain open for ingress and egress and the uses indicated by the designation, but so far as the public is concerned such acts amount to a mere offer of dedication which must be accepted before there is a revocation to complete the dedication.</p> <p>3. To constitute a dedication at common law there must be an intention on the part of the proprietor of the land to dedicate the same to public use; there must be an acceptance by the public; and the proof of these facts must be clear, satisfactory and unequivocal.</p> <p>4. The burden of proving acceptance of an offer to the public to dedicate lands for streets, alleys and parks is upon the county or municipality asserting it.</p> <p>5. A common law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public.</p> <p>C. Where a Common law oiler of dedication has been made and has not been accepted by or for the public, a conveyance before acceptance of the property so offered may constitute a revocation as to the public of the offer to dedicate.</p> <p>7. Where a plat is recorded showing the dedication of land in a city bordering on a bay for a park, the dedicators reserv- . ing all riparian rights adjacent to the land, and before the acceptance of the dedication by the public, the dedicators convey the land with riparian rights to a railroad company, winch company constructs some of its operating facilities on portions of the land and actually occupies and uses for railroad purposes such portions for years before acceptance of any nature of the dedicated land for park purposes by or for the public, the municipality can not recover from the company the portions of the land so occupied and used by the company or the lands covered by the reserved riparian rights below high water mark at the time of the filing of the dedication plat.</p>

<p>An Appeal from a Decree of the Circuit Court, within and for the County of Dade.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Duval, Daniel A. Simmons, Judge.</p>

<p>Where a party claiming an interest in mortgaged property takes an appeal from a decree subjecting the property to the mort- . gage debt and does not make the mortgagor a party to the appeal and the mortgagor does not appear in this court, the appeal may be dismissed by the court sua sponte.</p>

<p>An Appeal from the Circuit Court for Polk County, John S. Edwards, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, J udge.</p>

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

<p>A Writ of Error to tbe Criminal Court of Record for Hillsborough County; W. S. Graham, Judge.</p>

<p>1. The nature and ownership of the property which is the subject of an alleged intended larceny need not be alleged.</p> <p>2. The general rule is that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. . . • • ■</p> <p>3. Evidence of ánother and distinct crime committed by a defendant in no way connected by circumstances with the one for which he is being tried is inadmissible.</p> <p>4. Where prejudicial testimony has no proper bearing on the offense charged and is not a disclosure incidental to proof of' the offense charged, a proper motion to strike it duly made . should be granted.</p>

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

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

<p>A writ of error to the Circuit Court for Alachua County, J. T. Wills, Judge.</p>

<p>1. Congress has so far occupied the entire field of the interstate business of telegraph companies -by enacting the provisions of the Act of Jung 18, 1910, respecting interstate telegraph rates, as to exclude State action invalidating a contract limiting the liability of a telegraph company for error in sending an unrepeated interstate message to the refunding of the price paid for the transmission of the message. -</p> <p>2. Where ■ an invalid judgment of a lower court is affirmed, on writ of error by the Circuit Court, such judgment of affirmance may be quashed on certiorari.</p>

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

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

<p>A Writ of Erorr to a Judgment of the Circuit Court within and for the County of Pas'co; O. K. Reaves, Judge.</p>

<p>1. In a suit to set aside or cancel an alleged cloud upon title to . real estate, a court of equity will not enjoin a proceeding for unlawful detainer brought previous to the filing of the bill for such injunction, the question of title not being involved in an action for unlawful detainer.</p> <p>2. When a complainant married woman comes into a court of equity to be relieved of an alleged invalid contract for the sale of her separate statutory property, upon which she has received most of the consideration, it is incumbent upon her to offer to do equity, or she should allege facts that would excuse her failure to do so.</p> <p>3. An actor in a court of equity comes into a court of conscience, and will not be allowed unconscionable relief, otherwise than under conditions that he does equity upon his part. This rule will aid a defendant even if he could not have secured equitable relief had he been the actor.</p> <p>4. When a married woman by virtue of her contract to convey her separate statutory property, invalid because not acknowledged as required by statute, but for which she has received the consideration in whole or in part, comes into a court of equity to have her title relieved of such contract she must, in her bill of complaint, offer to return the consideration received, or set up facts that would excuse her failure to do so.</p>

<p>An Appeal from the Circuit Court of Duval County, Daniel A. Simmons, Judge.</p>

<p>1. The intent of a statute is the law.</p> <p>2. A statury definition of a felony should not by construction or interpretation be extended to cover acts or omissions of persons that are not within the intent of the statute, for the lawmaking power can legally designate or define the criminal offenses for which penalties may be imposed.</p> <p>3. Where the charge is a crime it must have clear legislative basis.</p> <p>4. It is the Legislature, not the court, which is to define a crime, and ordain its punishment.</p> <p>5. It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense.</p> <p>6. It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms.</p> <p>7. There can be no constructive offenses, and before a man can be punished, his case must be plainly and unmistakably within the statute.</p> <p>8. The failure or refusal of a father to provide medical attention for his child who was accidentally burned by falling in a fire, from which burns the child subsequently died, does not make the father guilty of the crime of manslaughter defined by statute to be “the killing of a- human being by the act, procurement or culpable negligence of another.”</p>

<p>A writ of error to the Circuit Court for Polk County, John S. Edwards, Judge.</p>

<p>An instrument in writing duly executed giving a married woman’s “consent” to a lien upon her separate property to secure her husband’s debt, is ineffectual as a lien after a suit to enforce such a lien has been barred by the statute of limitations.</p>

<p>A writ of error to the Circuit Court for Dade County, H. Pierre Branning, Judge.</p>

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

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

<p>A Writ of Error to the Circuit Court for Orange County; Janies W. Perkins, Judge.</p>

<p>1. Burglary and larceny are an exception to the general rule that two distinct offenses cannot he charged in the same count, and such an indictment cannot be demeurred to on the ground of duplicity. It is clear therefore that a burglary and a larceny committed at the same time may be united in separate counts in an .indictment without rendering such indictment bad for duplicity.</p> <p>2. Where two counts of an indictment relate to the same transaction and the two counts are properly joined, it is not error to deny; a motion to quash the indictment on the ground of duplicity.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Washington; D. J. Jones, Judge.</p>

<p>Writ of Error tó a Judgment of the Circuit Court within and for the County of Marion; W. S. Bullock, Judge.</p>

<p>A Writ of Error to tlie Circuit Court for Bay County; D. J. Jones, Judge.</p>

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

<p>A writ of error to the Criminal Court of Record for Duval County, J. M. Peeler, Judge.</p>

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

<p>1. Quo Warranto will not lie except to test the right of a person to hold an office or franchise or' exercise some right or privilege the peculiar powers of which are derived from the State.</p> <p>2. When rights are created by the primary law that mandamus cannot enforce, and wrongs done that can only be reached by other processes of the court, it is the duty of the court to grant such processes.</p> <p>3. The rights created under our primary laws are such that when violated the courts may be resorted to for their redress.</p> <p>4. The primary law has created certain rights, and vested certain persons with privileges, duties and powers which they may perform and enjoy, and where these privileges and duties are usurped by another, quo warranto will lie to protect against usurpation.</p> <p>5. Any of the processes of the court that would be available to a person holding an office'under the general election laws are available to one who has acquired rights, or upon whom duties are imposed by the primary, election laws that are analogous to the rights and duties of officers.</p> <p>6. Primary election laws and laws governing general elections áre so interwoven that together they comprise the election machinery of the State, and the rights, duties, privileges and powers' granted or" imposed hy one are equivalent’ to those granted or imposed hy the other in :so far as the processes of the courts may he invoked to enforce or protect them.</p> <p>7. The rights and powers conferred and granted by the. primary election law, are limited to those political parties which at the general election for State a>nd County Officers then next preceding a primary, polled more than "five per cent, of the entire vote cast in the State. , '</p> <p>8. A political party that polls more than five per cent, of the vote cast in a general election acquires the status of the political party under the provisions of Chapter 64G9, but it loses that status unless it polls more than five per cent, of the total Vote cast in the general election then next preceding a primary.</p>

<p>A writ of error to the Circuit Court for LaFayette County, M. F. Horne, Judge.</p>

<p>An Appeal from the Circuit Court for Franklin County, A. G. Campbell, Judge.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Franklin.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Franklin.</p>

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

<p>A Writ of Error to the Circuit Court within and for the County of Alachua; Fred Cubberly, Referee. •</p>

<p>An Appeal from Orders of the Circuit Court within and for County of Polk; John S. Edwards, Judge.</p>

<p>A Writ of Error to the Criminal Gourt of Record, Hillsborough County; W. S. Graham, Judge.</p>

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

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

<p>While courts will not by mandamus undertake to compel the continued operation of a railroad that does not and cannot pay operating expenses, yet a court of equity in enforcing contract liens upon railroad property for credits obtained upon the faith of thei railroad as a going concern, has no authority to order the operation of the road discontinued and the road 'dismantled to be sold as junk, at least when the State, who is interested in the continued use of the franchise granted to operate the railroad as a common carrier, is not a party to the proceedings.</p>

<p>1. Where a promise to perform a service is the sole consideration for a promissory note, a plea averring that the service had not been performed although the time agreed on for the service had expired when the action was begun is a good plea.</p> <p>2. Where one purchases a tract of land from another subject to a mortgage given by the vendor who agrees to satisfy the mortgage at his own expense as consideration for a promissory note from the vendee for an amount equal to the debt secured by the mortgage, a plea that the payee of the note had failed to discharge the mortgage indebtedness is sufficient as a plea of failure of consideration in an action by the payee of the note against the vendee of the land.</p> <p>3. Material alterations in a promissory note constitute a sufficient plea in bar to an action on the note and -full opportunity-should be given the defendant to avail himself of such defence.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Jackson; D. J. Jones, Judge.</p>

<p>An Appeal from a. Decree of the Circuit Court within and for the County of Hernando; W. T. Bullock, Judge.</p>

<p>Appeal from an Order of the Circuit Court within and for the County of Bradford; J. T. Wills, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Jackson; C. S'. Wilson, Judge.</p>