Volume 81 — Florida Reports

<p>1. Where a railroad is operated over a street that divides the city into two parts so that it is impossible for the public to go from that part of the city lying on one side of the street to that part lying on the other side, without passing over the tracks and right-of-way of the railroad, the public has a right to cross the railroad tracks and right-of-way at any point unless prohibited by law, and such crossing by the public is not an appropriation “of private property or right-of-way” in contravention of Article XVI, Section 29, of the Constitution of Florida.</p> <p>2. Where a railroad is operated over a street that divides the city into two parts so that it is impossible for the public to go from that part "of the city lying on one side of the street to that part lying on the other side, without passing over the tracks and right-of-way of the railroad, and the city under its police power for the protection of the railroad and the safety of the public, may prohibit the passage over the railroad tracks and right-of-way by the public except at such points as the city may designate, and may require the railroad to provide safe and convenient means of passage at such points.</p> <p>3. The public; has a right to go from one part of the city to the . other, ánd this right is superior to'the right of the railroad to maintain its tracks and operate its trains through the city. The city council has the right in the exercise of a sound discretion to determine at what points the public shall cross the right of’ way and tracks of the railroad company, and may establish such points as are required for the convenience of the public in the transaction of its business or for such other purposes as are common to the inhabitants of a city. ■ .</p>

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

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

<p>Where there is sufficient evidence to sustain a decree of divorce and awarding the custody of minor children, hut the provision of the decree denying alimony to the wife appears to be inequitable, the decree may on appeal be affirmed in part and reversed in part so as to allow appropriate provision to be made by the lower court for the support of the wife as the circumstances may warrant.</p>

<p>A Writ of Error to the Circuit Court for-.Osceola County; C. O. Andrews, Judge. .</p>

<p>An Appeal from the Circuit Court for DeSoto County: George W. Whitehurst, Judge.</p>

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

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

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

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

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>Where a declaration in two counts sufficiently alleges an acceptance of a cheek, and a promise to pay checks drawn as alleged, to state a cause of action, it is error to sustain a demurrer to the declaration.</p>

<p>In an action for personal injuries when the testimony clearly shows negligence of the plaintiff that contributed directly to his injury, and the alleged negligence of the defendant railroad company is strongly rebutted by the evidence, a judgment for the plaintiff awarding large damages will be reversed.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; R. B. Huffaker, Referee.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; R. B. Huffaker, Referee.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; R. B. Huffaker, Referee.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; R. B. Huffaker, Referee.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Putnam; J. T. Wills, Judge.</p>

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

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

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

<p>Where the testamentary capacity of a testator and alleged undue influence over him in making a will are adjudged by the County Judge on evidence taken before -him and the will is sustained for .probate, .and such adjudication is, on appeal, affirmed by the Circuit Court, and the evidence, without reference to the burden of proof, fully sustains the adjudication' in favor of the-validity of the. will, this court will not, on appeal, disturb such adjudications.</p>

<p>A-Writ’of-Error to a Judgment of the Circuit Court within and for the County of Pinellas; O. K. Reaves, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Jackson; D. J. Jones, Judge.</p>

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

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

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

<p>An Appeal from an Order of the Circuit Court within and for the County of St. Johns; George Couper Gibbs, Judge.</p>

<p>An Appeal from a Decree of the Court of Record in and for the County of Escambia; C. M. Jones, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Osceola; C. O. Andrews, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Broward; E. B. Donnell, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Broward; E. B. Donnell, Judge.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; George C'ouper Gibbs, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Palm Beach; E. B. Donnell, Judge.</p>

<p>1. Entire and exclusive jurisdiction over the matter of requiring physical connection between rail and water carriers has been given by Congress to the Interstate Commerce Commission, and there is no field for the operation of State laws, or control by the State Railroad Commission, over the same subject matter.</p> <p>2. Until Congress gave to the Interstate Commerce Commission entire and exclusive jurisdiction over the matter of physical connection between rail and water carriers, the State had full power and jurisdiction over the subject, but when Congress exercised the power, and lodged the entire and exclusive jurisdiction over it in the Interstate Commerce Commission, the right of the State over the same subject matter was extinguished.</p> <p>3. A concurrent power of the Federal and State governments may be exercised by the States until the same field is covered by Congress, and when that is done, State legislation on the subject becomes inoperative and ineffective.</p> <p>4. The test is not whether the State legislation is in conflict with the details of the Federal law or supplements it, but whether the State has any jurisdiction of a subject over which Congress has exerted its exclusive control.</p>

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

<p>1. The office of an instruction, is to enlighten the jury upon questions of law pertinent to the issues of fact submitted to them in the trial of a case.</p> <p>2. An instruction which tends to confuse rather than enlighten and which is calculated to and may have misled the jury and caused .them to arrive at a conclusion that otherwise might .not have been reached by them is ground for a reversal of. the judgment.</p> <p>3. The question of who are parties to an action or to whom ■ the fruits of their verdict in plaintiff’s favor may accrue is not a question for the jury’s consideration.</p> <p>4. If there is uncertainty about the identity of the plaintiff in an. action that question should be determined by the court before proceeding with the trial of the ease.</p> <p>5. In a charge to the jury by the court plaintiff was referred to as “somebody has brought a suit” against the defendant, “just who it is I don’t know from the pleadings,” and later in the charge in referring to the plaintiff the court used the expressions “whoever is the plaintiff” and “whoever is suing.” Held: that the .natural tendency of this language was to confuse and mislead the jury and its use is ground for reversal of a judgment for defendant where the record shows that there was evidence before the jury which would have been a sufficient basis for a verdict for plaintiff.</p>

<p>1. The statute (Chapter 7736, Acts of Extraordinary Session of the Legislature, 1918, Laws of Florida) designed, among other things, to make it unlawful for any person, to engage in the manufacture, sale, barter, .exchange or transportation of intoxicating liquors and providing for the forfeiture of personal property used in or to facilitate the violation of the provisions of the Act| does not authorize'such forfeiture “when it shall be made to appear that the bona fide owner of such personal property was not concerned in such violation as principal in the'first or second degree or accessory before or after the fact.”</p> <p>2. Under the statute (Chapter 7736,Acts of Extraordinary Session of the Legislature, 1918, Laws of Florida) the auto- . mobile of an innocent owner, although used in. the unlawful transportation of intoxicating liquor, is not' subject' to forfeiture, and the forfeiture proceeding of which such owner has no notice is ineffectual to divest him of title to such automobile.</p> <p>3. Where notice of forfeiture proceeding under the statute (Chapter 7736, Acts of the Extraordinary Session of tbe ' Legislature,'1918, Laws of Florida) is not given as required by the statute to the innocent owner of an automobile used-in the unlawful transportation of intoxicating liquor and such owner does not appear therein as a party claimant or otherwise, such proceeding is ineffectual to divest the owner of his property in such automobile, and the purchaser at a sale in such proceeding acquires no title thereto which will entitle him to the possession of the automobile as against such owner.</p>

<p>An Appeal from the Circuit Court for DeSoto County; George W. Whitehurst, Judge.</p>

<p>1. Fees collected by officers represent the charge which the State makes for services rendered by it through its officers, and constitutes a fund subject to the control of the State and to be applied as the Legislature directs.</p> <p>2. The effect of Chap. 7334, Acts of 1917', is to lodge in the Board of County Commissioners of the respective counties the-power to fix the compensation of all officers who are paid in whole or in part by fees, and in that respect is violative of Art. 3, Section 27, of the Constitution, which provides that the Legislature shall “fix by law” the “compensation” “of all State and county officers not otherwise provided for by this Constitution,” and of Art. 8, Sec. 6, which provides that the “compensation of the sheriff, constable, county assessor of taxes, tax collector, superintendent of public instruction and eountyssurveyor” “shall be prescribed by law.”</p> <p>3. The provsition of Sec. 1, Chap. 7334, that fixes the proportion of the net income of all officers derived in whole or in part from fees or commissions, which the officials shall receive as compensation or 'salary, and of Sec. 2, which empowers the Board of County Commissioners to fix the number and compensation of the deputies, clerks or assistants of all such officers, places the duty of fixing the- salaries of such officers in the hands of the county commissioners, and is violative of Art. 3, Sec. 2^, and Art. 8, Sec. 6, of the Constitution.</p> <p>4. Where the unconstitutional portion of an act cannot be declared void without defeating the manifest legislative purpose, the entire statute must fail as unconstitutional and void.</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 Marion County; W. S. Bullock, Judge.</p>

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

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

<p>An Appeal from a Decree of the Circuit Court within and for the .County of DeSoto; George W. Whitehurst, Judge.</p>

<p>Where a plea is so framed that a defense may be proven tinder it, a demurrer thereto should not be sustained.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>An Appeal from Decrees of the Circuit Court within and for the County of Osceola; C. O. Andrews, Judge.</p>

<p>1. Under the statute regulating the service of summons on private corporations, where the return shows service upon a mere agent of the defendant company, without showing the absence of all the officers of the company of the superior classes designated by the statute as those upon whom service shall be made, before resort is had to service upon, one of an inferior class, the service is unauthorized and ineffectual to give the court jurisdiction of the defendant company in the cause.</p> <p>2. Where a judgment is void because the court had not acquired jurisdiction of the defendant in the cause, such judgment may be vacated by the court, and a writ of error lies to the order of vacation.</p>

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

<p>A Writ of Error to a Judgment of tbe Circuit Court within and for. the County of Pasco; O. K. Reaves, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; George Couper Gibbs, Judge.</p>

<p>1. At common law it is not sufficient to allege the ownership of stolen property in a partnership without giving the names of the partners.</p> <p>2. Where no question of the sufficiency of an indictment alleging the ownership of stolen property in a partnership without giving the names of the partners was raised before the trial and verdict of guilty and no objections were interposed to the admissibility or competency of testimony to the effect that the alleged owner was a partnership composed of individuals whose names were given, a judgment of conviction will not be reversed upon the ground that the verdict is not supported by the evidence.</p> <p>3. The defect in an indictment charging the accused with larceny from a partnership without giving the names of the individuals composing the same when not called to the court’s attention before trial and verdict of conviction is not such as to require a reversal of the judgment where it does not appear that the accused was misled or embarrassed, but will be regarded as cured by the statute, Section 3962, General Statutes of the State of Florida.</p>

<p>An Appeal from the Circuit Court for Orange County; C. O. Andrews, Judge.</p>

<p>1. Habeas corpus is not designed to take tbe place of a writ of error. It is not the function of this writ to bring in review any irregularity, or mere error of procedure committed by a judicial tribunal having jurisdiction of the cause and the person, and under whose final judgment a party claiming to be unlawfully restrained of his liberty may be held.</p> <p>2. Habeas corpus is not a remedy for relief against indictments charging criminal offenses defectively or inartifieially, though it is a remedy where an indictment charges as an offense an act that, at the time of its commission, the law did not make criminal. In the former case the detention of the accused is not without jurisdiction, while in the latter, it is held to be without jurisdiction to arrest, try or punish a person for an act that is not made penal by any law.</p>

<p>I. Where the articles claimed in a replevin affidavit are identical with those enumerated in the defendant’s forthcoming bond, it is error for the court to permit the defendant to offer evidence that he did not receive a part of the property-described in his forthcoming bond.</p> <p>2. One who gives a forthcoming bond in a replevin suit is estopped from denying that the property was in his possession at the commencement of the action, and the giving of the bond for the return of the replevied property precludes the defendant from asserting that less property was replevied than was described in the bond.</p> <p>3. Where defendants in a replevin action are permitted to retain possession of the property upon giving a forthcoming bond, they are estopped from denying that the property was found in their possession at the time of the levy of the writ.</p> <p>4. The recital in the bond of the amount of property in the possession of the defendant does not preclude the plaintiff from proving that he claims less property than is described in the affidavit or in the bond, and the introduction of such testimony by the plaintiff does not open the question so as to permit the defendant to assert and prove that less property was replevied than is claimed by the plaintiff.</p>

<p>A Writ of Error to the Circuit Court for Duval County; J. Turner Butler, Referee.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Leon; E. C. Love, Judge.</p>

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

<p>In an action to recover damages for personal injuries, where liability appears, but the damages awarded in the judgment are manifestly and grossly excessive, a remittitur will be permitted to be entered, and in default thereof a new trial will be granted by the appellate court. And this may be done, even though the trial court had permitted a remittitur of a part of the amount found by the verdict, and had rendered judgment upon the remittitur for an amount less than that stated in the verdict.</p>

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

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

<p>An Appeal from the Circuit Court for Broward County; E. B. Donnell, 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>An Appeal from an Order of the Circuit Court within and for the County of Suwannee; M. F. Horne, Judge.</p>

<p>1. A presumption of a criminal intention may arise from proof of the commission of an unlawful act, hut the general rule, that if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, does not apply in the case of crimes like burglary, assault with intent to kill, or rape, for which a specific intent is necessary. Here the burden is on the State to prove affirmatively either by direct or circumstantial evidence that 'the act was done with the requisite specific intent.</p> <p>2. Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with that specific intent.</p> <p>3. Where a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proven as the act itself, and must be found by the jury as a matter of fact before a conviction can be had; and especially when the offense created by the statute, consisting of the act and the intent, constitutes substantially an attempt to commit some higher offense than that which the defendant has succeeded in accomplishing by it.</p> <p>4. Where a defendant is indicted for the commission of an offense with intent to commit another, as for instance rape, it devolves upon the prosecution to prove some act or deed evidencing such intent in order to warrant conviction of the defendant.</p> <p>5. The allegation of the intent in this case was an essential and material allegation, and it was necessary for the prosecution to prove facts in order to show beyond a reasonable doubt what that intent was.</p>

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

<p>A Writ of Error t'o a Judgment of the Court of Record within and for the County of Escambia; C. M. Jones, Judge.</p>

<p>1. Mere mental weakness will not authorize a court of equity to set aside a deed if it does not amount to inability to comprehend the effect and nature of the transaction and is unaccompanied by evidence of imposition or undue influence.</p> <p>2. Where there is conflict in the testimony, but there is evidence to support the finding of the chancellor, the decree will not be reversed unless it clearly appears to he erroneous.</p> <p>3. The finding of a chancellor on conflicting evidence will not be disturbed by an appellate court where the mind cannot repose with entire confidence and certainty on a conclusion in favor of either party.</p> <p>4. Every person is presumed to be sane until the contrary appears, and in civil actions the burden of proof of insanity rests upon him who alleges it.</p> <p>5. It devolves upon him who seeks to avoid a deed on account of insanity of the grantor to establish the fact of insanity by a preponderance of the evidence.</p>

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of Lake; C. O. Andrews, Judge.</p>

<p>A Writ of Error to the Circuit Court for Osceola County ; C. O. Andrews, Judge.</p>

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

<p>An Appeal from Orders 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 Santa Rosa County; A. C. Campbell, Judge.</p>

<p>A Writ of Error to the Circuit Court for Lake County; C. O. Andrews, Judge.</p>

<p>1. A contract for street improvement provides “that fifteen per cent of the entire contract price shall be retained and held by the city * for a period of thirty days after the completion of said grading, paving and curbing of said * Avenue, and that said per cent, of said contract shall be held and retained by the said city * for the purpose of having a sufficient sum of money to make any alterations or repairs and to do any work the contractors may neglect, fail or refuse to do,” and also “that before the last payment is made to the contractors, that said contractors shall produce to the city good and sufficient proof that all bills for labor and material furnished or performed, in reference to said street, by other persons to the contractors, have been fully paid. It is the intention herein that the contractors shall show that they have paid for all work and material before they receive their last payment for work and material under this contract.” Held, that such provisions are not so definite as to clearly evince an intention upon the part of the contracting parties to create a trust fund for the benefit of unpaid creditors of the contractors who might have supplied labor and material to them in prosecuting the work under the contract. Whitfield, J., dissenting.</p> <p>2. In order that a promise made by one person to another for the benefit of a third 'person shall constitute the first the debtor of the third and entitle the third person to sue the first on such promise, it must appear that there was a clear intent upon the part of both the first and the second that the first person shall become such debtor. The mere fact that the third might be benefited is not sufficient.</p> <p>3. The purpose of the statutory provision that “any civil action at law may be maintained in the .name of the real party in interest” is to relax the strict rules of the common law so as to enable those directly interested in, but not parties to, a contract, to maintain an action for its breach; and the statute should be so applied ^as to accomplish its salutary purpose.</p> <p>4. Where the clear intent and purpose of a contract is a direct and substantial benefit to third parties severally, and such parties are the real parties in interest, they may severally maintain actions for breaches of the contract that specially injure them. A party who is injured is the real party in interest in an action to recover damages for the injury..</p> <p>5. The liabilities of sureties on a surety bond cannot be enforced in equity in the absence of equitable considerations.</p> <p>6. A decree pro confesso does not bind a defendant as to matters not properly adjudicated in the suit.</p>

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

<p>An Appeal from a Decree of the Circuit Court for Alaebua County; James T. Wills, Judge.</p>

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

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

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

<p>1. Section 798 of the General Statutes of 1906 makes the due issuance, of bonds for constructing roads a prerequisite to the levy of a tax to meet interest payments and for a sinking fund to pay the bonds at maturity.</p> <p>2. ' Bonds have not been issued when no acceptable bids have been received for them and no specific offer to sell them at a stated permissible price has been made and accepted, and the bonds, though authorized to be sold, have not been prepared for execution and delivery.</p>

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

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

<p>1. After answer by respondents, in moving for a peremptory writ, relator admits all well-pleaded- averments, of respondents’ a-nswer.</p> <p>2. Courts will not anticipate constitutional questions in advance of the necessity of deciding them, and where a case can be properly and effectually disposed of by a court without passing upon the constitutionality of a statute, it is the court’s duty to do so.</p> <p>' 3. Where the constitutional validity of a statute is challenged and there are two possible constructions, by one of which the statute would be unconstitutional, and by the other it would be valid; it is the duty of the court to adopt that interpretation that brings the statute into harmony with the Constitution, if the language employed will permit.</p> <p>■4. Rules and orders made by administrative boards must accord with the authority conferred upon, the board by law. An administrative board can not legally confer upon its employees authority that under the law may be exercised only by the board or by other, officers or tribunals..</p> <p>,5. .By Section 6 of Chapter 6885, Acts'of 1915, Laws'of Florida, authority is given the State Plant Board to make rules and. regulations necessary for carrying into effect the provisions of the Act, and Section 12 of the statute provides that “whenever the Board, shall find there exists in this State, or any part thereof, any insect pest or disease, and that its dissemination should be controlled or prevented, the Board shall give public notice thereof, specifying the plants andi plant products infested or infected, or likely to become infested or infected therewith, and the movement, planting or other use of any such plant or plant product * * shall be prohibited * * until the Board shall find that the danger of the dissemination of such insect pest or disease has ceased to exist, of which the Board shall give public notice.” Held, That the statute does not give the Board power to confer upon employees authority to make rules or regulations nor to determine when rules or orders of the Board shall or shall not be applicable, and that the rule of the Board prohibiting the shipment of sugar cane infected or likely to be infected with mosaic disease “until such time as the Plant Commissioner shall have determined and declared that the disease has been apparently eradicated in such areas” is without authority and void.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Alachua; J. T. Wills, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Osceola; C. O. Andrews, Judge.</p>

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

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

<p>An Appeal from the Circuit Court for Monroe County; JEO. Pierre Braiming, Judge.</p>

<p>1. In ejectment the plea of .not guilty admits possession by the defendant at the time of the institution of the action.</p> <p>2. In the statutory action of ejectment plaintiffs may recover the land in controversy, together with mesne profits, which latter may include the value of crude gum removed by defendant from pine trees upon the premises while in his possession.</p> <p>S. Where defendant in ejectment bases his right to possession of the premises upon a tax deed and it is proved that for the tax year for which the land was sold because of nonpayment of the tax assessed against it the board of county commissioners of the county had not ascertained and determined the amount of money to be raised by taxes for county purposes and levied the tax authorized by statute and entered at large the determination and levy so made upon the records of the board, and is further proved that such tax sale was made before the tax became delinquent, it is not error for the court, upon motion of plaintiffs, to strike the tax deed previously offered in evidence by defendant.</p> <p>4. Where plaintiffs in ejectment prove title to the land involved in the suit it is not error for the court to direct a verdict for plaintiffs with respect to the recovery of possession of the land and submit to the jury only the question of mesne profits claimed by plaintiffs.</p>

<p>A Writ of Error to the Circuit Court for Alachua County; E. G. Baxter, Referee.</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 from an order of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Manatee; O. K. Reaves, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for Orange County; C. O. Andrews, Judge.</p>

<p>1. The Circuit Court has no jurisdiction where the declaration in several counts claims damages for killing stock at different times and places when no one claim for stock killed at one time exceeds one hundred dollars, though the total aggregate of claims made in several counts of the declaration for several separate and independent killings, amount to more than one hundred dollars.</p> <p>2. The jurisdiction of the court is determined by the actual demand in good faith made or by the actual damages claimed to have been sustained.</p> <p>3. The amount of damages stated in the ad, damnum clause of a declaration does not determine the jurisdiction, of the court, when the real “demand or value of the property involved” otherwise dlearly appears, and the ad damnum is in excess of the real demand.</p>

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

<p>1. Plaintiff in ejectment may recover against one in possession without title upon proof of prior possession in himself or proof of a grant to him from a grantor in possession.</p> <p>2. Where both parties in ejectment claim title from a common source to the property involved defendant is estopped- to show an outstanding title thereto in a third party.</p> <p>3. Under the provisions of Section 2455, General Statutes of 1906, Compiled Laws, 1914, deeds executed in the manner required by law operate under the statute of uses to vest title in the grantee, provided livery of seizin can be lawfully made of the land conveyed at the time of the execution of the deed.</p> <p>4. Whether an estate in remainder is vested or contingent, a conveyance by the life tenant passes only the life estate and does not operate to destroy the estate in remainder.</p> <p>5. The general rule is that the statute of limitations does not begin to run against a remainderman until his right of possession accrues.</p>

<p>1. By the common law a married woman had no power to convey her land and a deed of conveyance by her was generally deemed to be a nullity.</p> <p>2. “At a remote period therefore it came to be the settled law of England that a married woman might convey lands and interests therein by means of the collusive suit known as a ‘fine,’ and, later, by means of a ‘common recovery,’ wherein the intending purchaser, upon a pretense of a superior title, would bring an action against the husband and wife jointly, laying claim to the land proposed to be sold.” 1 Minor on Real Property, Sec. 308.</p> <p>3. In England and in the United States statutes have been enacted by which fines and common recoveries ceased, and the wife is authorized to convey her lands by deed supplemented by a judicial acknowledgment as provided for by such statutes.</p> <p>4. By statute in this State conveyance by fine or by common recovery is forbidden.</p> <p>5. In this State a married woman is authorized to sell, convey or mortgage real property owned by her in like manner as she might do if she were not married, provided her husband join in such sale, conveyance or mortgage. But to render such sale, conveyance or mortgage valid to pass title to the property “she must acknowledge, before some officer authorized to take acknowledgments of deeds, separate and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer’s certificate shall set forth all the foregoing requirements.”</p> <p>6. Conveyances duly executed in the manner required by statute operate under the statute of uses to vest title in the grantee, provided livery of seizin can be lawfully made of the lands conveyed at the time of the execution of the conveyance.</p> <p>7. In this State a married woman’s deed to real estate owned by her, duly executed as required by statute, in which her husband joins, plus her acknowledgment thereto separate and apart from her husband, duly authenticated as required by statute, operates under the statute of uses to convey her interest in the property.</p>

<p>1. In ejectment plaintiff must recover, if at all, upon the strength of his title and not upon the weakness of the title of defendant.</p> <p>2. Except in cases where there is a claim of title in plaintiff and defendant from a common source, in order to recover in ejectment plaintiff must prove prior possession in himself, or deraign his title either from some predecessor in possession or from an original source.</p> <p>3. Where plaintiff relies upon prior possession of a predecessor from whom he has acquired title by judicial sale as giving him a right to recover in ejectment, he must prove such possession since the rendition of the judgment or decree upon which the sale was made.</p> <p>4. Plaintiff’s right to recover in ejectment depends not alone upon the strength of his title. He must prove also a right of entry. Title sufficient to warrant recovery and right of entry must co-exist.</p> <p>5. As against one in adverse possession at the time, a deed is void and conveys neither the title nor right of entry to the purchaser of the land.</p>

<p>An Appeal from an order of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, Judge.</p>

<p>1. Where there has been wilful, obstinate and continued- desertion by either the husband or wife for a period of a year, there is no obligation on the part of the deserted spouse thereafter to resume the marital relations, and the refusal to do so does not extinguish the cause of action.</p> <p>2. The refusal by a deserted spouse to resume marital relations after the obstinate, wilful and continued desertion for a period of a year, does not deprive him. or her of the right to a divorce on the grounds of such desertion.</p> <p>3. Where a husband or wife wilfully and wrongfully deserts the other, the willingness for, or tacit acquiescence in the desertion, on the part of the deserted spouse, will not defeat the cause of action if such wilful desertion is obstinate and continued for the period of a year.</p>

<p>1. The statute authorizes replevin hy third persons who claim property levied on in attachment proceedings.</p> <p>2. In replevin where on the issues presented the evidence is legally sufficient to sustain the verdict, approved hy the trial judge, and no error of law or procedure appears, the verdict will not he disturbed on writ of error.</p>

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

<p>1. Where a declaration consists of the common counts for goods bargained and sold, and goods sold and delivered, and, concludes with an allegation that the defendant in considera- ' tion óf the premises promised to pay the said several sums of money on request, the burden is upon the plaintiff under the general issue to prove the sale and delivery of the goods or delivery from which a sale may be inferred and the price agreed upon for the goods or their value.</p> <p>2. Under the general issue upon the common counts for goods bargained and sold the defendant may show that the goods were delivered to him. upon consignment for sale as agent for the plaintiff.</p> <p>3. Where under the general issue upon the common counts for goods bargained and sold, or goods sold and delivered, the plaintiff relies upon a promise as to the prfce to be paid, made by a person supposed to be acting as agent for the defendant, the burden of proof is upon the plaintiff to prove the authority of such person to bind the defendant by a contract of sale at an agreed price.</p> <p>4. The declarations of a person supposed to be another’s representative or agent are not alone sufficient to prove his authority.</p> <p>5. Evidence examined and found insufficient to prove tile authority of a person as agent to bind the defendant by a contract of purchase at an agreed price for goods alleged to have been sold to the defendant by the plaintiff.</p>

<p>1. Lands not covered by navigable waters and not included in the shore space between ordinary high and low water mark immediately bordering on navigable waters are the subject of private ownership, at least when the public rights of navigation, etc., are not thereby unlawfully impaired.</p> <p>2. Riparian rights generally are incident to a street easement only when and at the points where the street, by express provision or by intendment, extends to a navigable body of water.</p> <p>3. Where a dedication plat shows that a street line at some points extends to and along the water line of a navigable body of water, and at other points the street lines depart from the water line, and after encompassing considerable space again return to the water line, there may be riparian rights incident to the street easement at the points where . the line of the street and the navigable water line coincide or join, but there may be under appropriate* circumstances no riparian rights incident to the street where the street and water lines do not intersect, when it appears that the space delineated between the water line and the street line was not dedicated.</p> <p>4. Where a municipality apparently has rights in an easement in land that is in controversy between private parties, but the record affords no sufficient data for a proper decree as to the city, the rights of the other parties may be expressly adjudicated without prejudice to the municipality. Nor is the State prejudiced by the decree.</p> <p>5. A party asserting a counter claim by answer in equity, as permitted by statute, has tire burden of proof as to sucb counter claim seeking affirmative relief upon averments of new matter.</p>

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

<p>1. Where a mortgage expressly provides for the enforcement of the entire mortgage lien upon the defaults stated therein, the stipulated rights of the mortgagee are not dependent upon notice given to the mortgagor.</p> <p>2. Where solicitor’s fees allowed in foreclosure proceedings are excessive, the decree as to such fees may be reversed and the decree in other respects affirmed if no other errors of law or procedure appear.</p>

<p>1. The presumption of negligence cast upon railroads by o.ur statute in personal injury cases ceases when the railroad company has made it appear that its agents have exercised all ordinary and reasonable cafe arid diligence.</p> <p>2. A jury cannot lawfully find for the plaintiff unless the evidence is of such a nature as to produce a reasonable belief of the facts essential to the verdict:</p> <p>3. A trial court should not sustain a verdict when it is not in accord with, the manifest weight of the evidence or with the justice of the case.</p> <p>4. In appellate proceeding, it is encumbent upon the plaintiff in error or appellant definitely to show the errors complained of. And if this burden is not distinctly met, the action of the trial court will not he disturbed. Where the appellate court is in doubt as to the propriety of a ruling of the trial court, the ruling will stand.</p> <p>5. Where it is not clear that a trial judge erred in determining the probative effect of the competent testimony of witnesses taken before him, his judgment thereon should not be reversed, particularly where the testimony is conflicting and the witnesses are adversely interested or may not have had the same opportunities in observing, or equal qualities to appreciate, the facts testified to.</p> <p>6. A party moving for a directed verdict, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.</p> <p>7. In an action for negligence the question whether the railroad company has exercised all ordinary and reasonable care and diligence is to be determined by a consideration of the duty imposed by law upon the company under the facts and circumstances of each case that arises.</p> <p>8. In determining whether the trial court committed reversible error in directing a verdict for the defendant on the evidence adduced by both parties, the fair inferences to be drawn from all the evidence, in favor of the plaintiff, should he considered; hut if after doing this, the appellate court is in doubt as to whether there was substantial evidence to afford a sufficient legal predicate for a verdict for the plaintiff, the trial court will not be held in error for directing a verdict for the defendant, where the trial court saw and heard the witnesses testify, and no rule of law has been violated.</p> <p>9. The presumptions are in favor of the ruling made by the court, and the burden is on the plaintiff in error to clearly show from the evidence that the court committed the error assigned.</p> <p>10. When the evidence would not in law support a verdict for the plaintiff, there is no violation of the organic right to a jury trial in directing a verdict for the defendant.</p>

<p>The provisions of Section 1717, General Statutes of 1906, that “every acknowledgment of, or promise to pay a debt barred by the statute of limitations, must be in writing and' signed by the party to be charged,” do not apply where the new promise to pay the debt was made before the cause of action was barred by the statute of limitations.</p>

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

<p>1. An. instrument in writing under seal purporting to convey all the timber of all sizes for sawmill purposes for a period of one year, standing and being on certain lands under conditions which required the payment of certain sums of .money before the grantee should have the right to cut the timber standing on certain portions of the land construed to be a license to the grantee to enter and cut the timber within the period of time named upon the payment of the consideration named, which payment is a condition precedent to the passing of title to the timber.</p> <p>2. The intention of the parties to a written contract for the sale of standing timber should be gathered from the entire instrument without regard to the order in which the conditions, if any, occur.</p>

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

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

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

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

<p>1. Where bonds of a governmental subdivision are to be issued by administrative officers under statutory authority, the requirements of the statute conferring the authority must be substantially complied with in all material particulars or the bonds will not be valid, in the absence of permissible confirming or validating statutes.</p> <p>2. The statute authorizing the formation of Special Road and Bridge Districts in a county, contemplates the formation of districts with some fair reference to the advantage accruing therefrom to the persons and property bearing the tax burden assumed for the construction and maintenance of such roads and bridges.</p>

<p>1. Where there is a plain, adequate and complete remedy at law, equity has no jurisdiction, and a resort to a court of chancery is unnecessary and improper.</p> <p>2. -Personal property unlawfully detained hy another may he recovered in an action of replevin with, damages for its wrongful detention.</p> <p>3. A court of equity will not decree'the return of personal prop■erty unless it is of a peculiar character and value.</p>

<p>Where the trial judge refuses to sign a hill of exceptions presented to him for that purpose, the statute (Section 1696, Gen. Stats, of 1906) does not authorize its signature by the plaintiff himself and two attorneys who represented him in the trial and a paper in the form of a bill of exceptions copied in the transcript of the record in such case filed in this court authenticated in no way except by the signature and affidavit of such “three persons,” with nothing in the record to indicate that the trial judge permitted such paper “to be filed and become a part of the record” is not a bill of exceptions and such paper may be stricken from the record on motion.</p>

<p>A contract between a partnership and a corporation which is entered into between them for .the purpose of preventing or lessening competition in any commodity which is the subject of commerce or trade, or to increase or reduce the price of merchandise, produce or other commodities is, under the provisions of Chapter 6933, Acts of 1915, void and not enforceable in law or equity.</p>

<p>1. Under Section 3148 of the General Statutes, 1906, Section 4964, Revised General Statutes, 1921, wliicli provides that a railroad company shall he liable for any damage done to person or property by the running of its locomotive, cars or other machinery of the company unless the company shall make It appear that its agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against tbe company, the burden of proving injury is on tbe plaintiff; when that burden has been met tbe defendant must show absence of negligence.</p> <p>2. No presumption of negligence arises against the railroad company until tbe injury is shown to have been caused by tbe running of the railroad company’s locomotives, cars or other machinery.</p> <p>3. In an action for damages resulting from an injury to the plaintiff’s property by the negligent running of the railroad company’s locomotives and cars the plaintiff must show the injury to have been committed by tbe running of the defendant’s cars or locomotives before tbe presumption of negligent operation of such cars or locomotives arises against tbe company.</p>

<p>1. A common count for money payable to tbe plaintiff for money had and received by the defendant for the use of the plaintiff is - applicable in all cases where the defendant has obtained money which, ex aequo et tono, he ought to refund.</p> <p>2. License taxes involuntarily paid under an invalid ordinance of a municipality may be recovered in an action where the appropriate common counts are used.</p> <p>3. Taxes are not voluntarily paid within the rule that precludes a recovery, even if illegally exacted, where the failure to pay is a penal offense and payment is made to avoid proceedings to enforce the penalty.</p>

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

<p>A Writ of Error to a judgment of the Circuit Court within and for the County of Pinellas; O. K. Reaves, Judge.</p>

<p>An Appeal from a decree of the Circuit Court within and for the County of St. Johns; George Couper Gibhs, Judge.</p>

<p>1. The common law afforded no right of action to any one for damages resulting from the death of a person caused by the wrongful act, negligence or default of another, and statutes giving such rights should not by arbitrary construction be extended to include classes of. cases not within the meaning of the language used'.</p> <p>2. While Chapter 6487 is remedial in its nature and it should he so construed as to afford the remedy clearly designed, yet the statute should not hy judicial construction he extended to include rights of action that are not within the lawmaking intent as shown hy the language used.</p> <p>3. The Legislature-uses'such language as it chooses in enacting laws, and-the courts have no power to add to or take from the lawmaking intent as expressed in the language used, considered in view of the object sought to be attained.</p> <p>4.. Statutes imposing new liabilities. should he strictly con- . strued.</p> <p>5. Chapter 6487, Acts of 1913, gives a new right of action, and hy the language used therein does not make an individual liable in damages to a. parent for the death of a minor child caused hy the negligence of the employee of such individual.</p>

<p>1. At common law conformable with the maxim actio personalis moritur cum persona there was no right of action for damages resulting from death caused by the wrongful act or negligence of another.</p> <p>2. Section 3147, General Statutes of Florida, 1906, as amended by Chapter 6487, Acts of 1913, changes the common law-rule in this State and gives a right of action for death caused by the wrongful act, negligence, carelessness or default of another.</p> <p>3. Statutes giving a right of action where none existed at common law should not be extended beyond the meaning of the terms used, but such statutes are remedial in their nature, and should when sufficient for the purpose be so construed as to afford the remedy clearly designed.</p> <p>4. The intent of a valid statute is the law, and this intent may be ascertained by a consideration of the purpose of the enactment.</p> <p>5. The common law is in force in this State except when modified by competent governmental authority.</p> <p>6. Statutes and Constitutions in this country should be read in the light of the common law, from which our system of jurisprudence comes.</p> <p>7. When the Legislature by statutory enactment in express terms imposes civil liability upon an individual for the death of a minor child “caused by the wrongful act, negligence, carelessness or default” of such individual under the doctrine expressed in the maxim responde.a-t superior, an individual may also be civilly liable for the death of a minor child caused by the wrongful act or negligence of his servant or employee while acting within the scope of his employment.</p> <p>8. Where the Legislature by valid enactment imposes civil liability upon an individual for his own wrongs the law imposes liability upon such individual for the wrongs of his servants acting within the scope of their employment in the same class of cases.</p> <p>9. Repeals by implication are not favored, and a statute will not be construed as taking away a common law right existing at the time of its enactment unless imperatively required.</p> <p>10. Section 3147, General Statutes of Florida, 1906, as amended by Chapter 6487, Acts of 1913, gives a right of action against an individual whose “wrongful act, negligence, carelessness or default” causes “the death of any minor child.” Held, construing the statute in the light of the common law that the statute gives also a right of action against an individual whose servant while acting within the scope of his employment by his wrongful act or negligence causes the death of a minor child.</p> <p>11. The purpose of the statute is to authorize suits for the recovery of damages for the death of minors caused by the wrongful acts and negligence of others. The “loss of serv“ices” sustained by a parent in the death of a minor child is the services that such parent would be entitled to between the death and the majority of such minor.</p> <p>12. In an action for damages where liability is shown, but the amount recovered appears to be excessive, this court may adjudge an affirmance upon plaintiff’s entering an appropriate remittitur.</p>

<p>1. Where in a common law action a declaration contains several paragraphs which are numbered but which do not constitute separate counts, a plea so worded as to indicate that it was the defendant’s purpose that the plea should be applied to all the counts in the declaration to which the plea was applicable, yet in its introduction it 'purports to be confined to one count only it will be treated by the court as a plea to all the counts to which it is applicable.</p> <p>2. Action brought by one against another upon a money demand is not proved by a contract in which the defendant promises to pay in a thing other than money.</p> <p>3. Where an action is brought against a county for work done and materials furnished under a contract with the County Commissioners for the erection of a jail building there would be no implied liability against the county to pay for the value of the materials furnished or the work done where the Commissioners in letting the contract have proceeded in violation of the express mandatory provisions of the statute.</p>

<p>1. A motion to quash an indictment should be evidenced to the appellate court by the record proper, and not the bill of exceptions, and if not so evidenced will not be considered.</p> <p>2. An indictment against a negro woman and white man for violating the provisions of Section 3533, General Statutes, 1906, prohibiting such persons of opposite sexes from habitually living in and occupying the same room 'in the night time, charges a continuing offense, although the allegation was that on a certain day the man and woman habitually lived in and occupied the same room in the night time.</p> <p>3. Where a negro woman and white man are charged with the offense of habitually living in and occupying' the same room in the night time, it is necessary for the State to prove that the habit of so living together had been formed by them and was practiced within two years preceding the date alleged in the indictment.</p> <p>4. Where a continuing offense is charged in an indictment, evidence of acts and conduct of the defendant which occurred more than two years before the date alleged in the indictment are admissible to show the formation of a habit continuing into the period in which the statute does not bar the prosecution.</p>

<p>1. Tlie Legislature is accorded a wide latitude iu enactiug title? to Acts, and the subjects of legislation expressed in titles to Acts may be as broad or as restrictive as the Legislature desires, and when the title is not misleading and clearly violative of organic law, the Act will not be held inoperative in whole or in part because of an asserted defective title.</p> <p>2. Where an Act expresses a single subject, however broad or restrictive, and the Act contains provisions in accord with its title and also contains provisions that are not a part of or properly connected with the single subject that is expressed in the title, thereby making the title misleading, the provisions that are not a part of or properly connected with the subject expressed in the title, may be violative of the constitutional provisions that each law “shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title,” and for that reason such provisions may be inoperative.</p> <p>3. It is not necessary to detail in the title of an Act provisions contained in the Act that are a part of or are properly connected with the subject expressed in the title, and where the subject expressed in the title is by any reasonable intendment sufficiently broad for the provisions of the Act to be embraced therein or to be properly connected therewith, and the title is not misleading, such provisions will not'be held to be inoperative, as not being legally incorporated in the Act.</p> <p>i. While the title of an Act is by the Constitution required to briefly express the subject of the enactment, it need not state matters properly connected with such subject that are embraced in the body of the law; and the language used in expressing the subject of the enactment is within the legislative discretion.</p> <p>5. If the language of the title considered with reference to the legislative intent as shown by the purpose and object of the Act, may by any fair intendment cover the subject of the Act, the courts will not because of an asserted defective title refuse to give effect to any matter contained in the body of the enactment that is germane to or properly connected with the subject of the law, where the title is not so worded as to mislead an ordinary mind as to the real purpose and scope of the particular enactment. .</p> <p>6. A wide latitude must of necessity be accorded the Legislature in its enactments of law; and it must be a plain case of violating the requirements of the organic law as to titles of Acts before the courts will nullify statutes or portions thereof as not being within the purpose and scope of the subject as expressed in the title and of “matter properly connected therewith.”</p> <p>7. If the title of an Act fairly gives notice of the subject of the Act so as to reasonably lead to an inquiry into the body thereof, it is all that is necessary.</p> <p>8. Where the title of an Act is “to provide for the assessment and collection of the taxes for the city,” etc., the body of the Act may include provisions imposing license taxes upon occupations in the city, without violating Section 16, Article III, of the State Constitution.</p>

<p>1. The return day in appeals in chancery is governed by the statutes regulating writs oí error.</p> <p>2. The statute provides that the return day of a writ of error shall be “more than thirty days and not more than ninety days from the date of the writ,” or in chancery cases from the entry of the appeal.</p> <p>3. Where an appeal to the Supreme Court made returnable in violation of the statute so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court, the appearance of the appellee cannot of itself give the court jurisdiction of the subject-matter of the appeal, and such an appeal so taken should be dismissed by the court swa sponte.</p> <p>4. An appeal in a chancery cause entered on December 14, 1920, and made returnable January 10, 1921, violates the statute and will be dismissed sua sponte.</p>

<p>A Writ of Error to the Criminal Court of Record for Dade County; J. Emmet Wolfe, Judge.</p>

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

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of Bay; D. J. Jones, 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>A Writ of Error to the Circuit' Court for Lee County: George W. Whitehurst, Judge.</p>

<p>1. In a prosecution for crime a plea of not guilty puts in issue every material element of the crime charged in the information.</p> <p>2. A general verdict of guilty as. charged is a finding that every essential element of the crime charged has been proved. .</p> <p>3. If a verdict is in the nature of a special finding it must either in itself or by reference to the information or indictment contain a finding of every essential element of the crime charged.</p> <p>4. A verdict in which an attempt is made to set out the elements of the crime of which an accused is convicted, but contains no finding upon an essential element of the offense, is not sufficient.</p> <p>5. A verdict in a criminal case should be- certain and import a definite meaning free from ambiguity, but any words that convey beyond a reasonable doubt the meaning and intention of the jury are sufficient .and all fair intendments should be made to sustain it.</p> <p>6. Upon a charge of receiving stolen property, knowing the same to have been stolen, the verdict returned was as follows: “We the jury find the defendant guilty of receiving stolen goods as charged in the information to the amount of one case of cigarettes valued at $80. So say we all.” Held: That the words “as charged in the information” is an adverbial phrase qualifying rhe verb “receiving” which relates to and defines the character of the reception of the stolen goods and that the verdict read in the light of the information contains a finding on each of the material elements of the crime charged and is sufficient.</p>

<p>1. The Eighteenth Amendment to the Federal Constitution is an innovation in the dual system of government under the Constitution .of the United States. It extends the Federal power to intrastate control of intoxicating liquors for beverage purposes, and its prohibitions are in the nature of police regulations.</p> <p>2. In order that its prohibitions may be made effective under any and all conditions that may arise and by one enforcing authority if the other fails, the Eighteenth Amendment expressly confers upon the Congress and the several States “concurrent power to enforce” its commands by appropriate legislation. This provision confers independent, equal and complete power upon each sovereignty within its jurisdiction and by its own laws to severally enforce all the paramount prohibitions.</p> <p>3. While the State may enact and enforce incidental regulations and prohibitions of the possession of intoxicating liquors as a means to make prohibitions of the Eighteenth Amendment effective, yet as possession is not forbidden, but lawful possession is contemplated by the organic amendment, such incidental statutory prohibitions must not abridge rights conferred by Congress as to such possession, and within the Federal power.</p> <p>4. Where State regulations and prohibitions of the possession of intoxicating liquors are in substantial accord with Federal laws on the subject, the State laws may be enforced within organic limitations.</p> <p>5. As the express concurrent power of the Congress and the States to enforce the Eighteenth Amendment does not include concurrent power to define the subject-matter of the amendment, the definition of intoxicating liquors enacted by Congress is controlling to make the organic prohibitions effective wherever they are applicable.</p> <p>6. The Eighteenth Amendment being paramount in its provisions, and the power it confers upon Congress and the States to enforce its prohibitions, being concurrent, i. e., equal and separate power — State laws that are appropriate to enforce the organic prohibitions, are not excluded or superseded by the assertion of the Federal power .in the premises.</p> <p>7. Differences between State and Federal penalties for legally defined offenses of the same nature, do not invalidate the State law, since neither the Federal nor the -State Constitution controls penalties for offenses committed, no question of due process or equal protection of the laws or of cruel or unusual punishment being involved. A wrong doer can not justly complain of the resulting statutory penalty, if it does not violate his organic rights.</p> <p>8. While a State prohibition of a property right that is expressly permitted by Congress within the Federal power, may be invalid, yet a more severe punishment by the State than by the Federal power, for an unlawful act that either may penalize, is not illegal if due process and equal protection of the laws are not denied, and the punishment is not cruel or unusual, in violation of organic rights.</p> <p>9. Under the statute a proper allegation in an information that the defendant unlawfully had intoxicating liquors in his possession, puts upon the defendant the burden of showing that his possession is lawful under exceptions contained in the statute.</p>

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

<p>1. ■ In suits involving the marital status- and .rights, strict rules of prqcedure are not required; and where the .rights of the .parties are in. substance protected, the proceedings are largely in the discretion of the trial court.</p> <p>2. Orders enlarging -the time' 'for' taking testimony ' in • equity causes are within the-sound, discretion-of .the .judge, when special cause is shown; .and unless abuse of .such discretion appears the appellate court will not interfere.</p> <p>3. Where there has been failure to' take testimony within the time allowed by Equity Rule 71, and laches in applying for enlargement of time to take it, the enlargement should not be granted except upon strong showing of disqualification or positive hindrance to act, or of excuse in the indulgence or assent of the other side.</p> <p>4. ' Where no testimony- has been taken in • a suit to set aside a decree of divorce and the time allowed -by the rule for taking testimony has expired, and counsel for complainant makes affidavit “that' a material part of the claim of the complainant depends upon the testimony of” the complainant and others whose names and their addresses in another State are given, and counsel also makes affidavit to the effect that the delay was due to his impression that he. was extending a courtesy to opposing counsel, an order denying a motion to dismiss and extending the time' for taking testimony will not be reversed as being an abuse of discretion or as being without a sufficient predicate.</p>

<p>1. In a trial for larceny, the non-consent of the owner must be proved, as it cannot be presumed from the taking.</p> <p>2. If the absence of the owner is satisfactorily accounted for his non-consent may be proved by circumstantial evidence, provided the circumstances are such as to exclude every reasonable presumption that the owner consented.</p>

<p>An Appeal from a decree of the Circuit Court within and for the County of Broward; E. B. Donnell, Judge.</p>

<p>1. The defendant in a replevin action may take a writ of error separate from his sureties on a forthcoming bond.</p> <p>2. It is a general principle applicable to traffic in personal property, that no one can transfer or confer a better title than he has, unless some principle of estoppel operates to bar a claim under an otherwise better title.</p> <p>3. In England, at common law, a sale in market overt confers a title upon a Kona fide purchaser, though the seller had no title whatever; but in this country there are no such markets and the principle of title acquired by purchase and sale in market overt does not obtain.</p> <p>4. The mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the-property under an incomplete conditional sale cannot in general defeat a recovery by the true owner', although such purchaser bought for value and without notice.</p> <p>5i Where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property with indicia of ownership or of authority to sell, but with title reserved in the owner until the payment of the ■ purchase price, a purchaser, who pays value for such goods and gets possession thereof without notice of the terms or conditions of the original delivery, consignment or sale, obtains a good title as against the original owner, which will in general prevail against the latter’s reserved title. '</p> <p><3. Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss.</p> <p>7. An alleged owner of an automobile under a secret trust, who permits a dealer in automobiles to have the car at his sales place under circumstances' that indicated authority to sell, is estopped to assert his title against a bona fide purchaser for value and without notice of the secret claim.</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 a judgment of the Circuit Court within and for the County of Suwannee; M. F. Horne, Judge.</p>

<p>1. A writ of certiorari is not a writ of right.</p> <p>2. If upon an inspection of the transcript of the record sent up under a writ of certiorari issued hy this court, it appears that the County Court was without jurisdiction of the sub- ' ject matter or-of the defendant, or that the charge-as made constitutes no offense under the law, either because of the invalidity of the statute or because of the absence of essential allegations, or that the judgment or other proceeding of record had on the charge is not in accordance with the essential requirements of the law, the judgment of'affirmance by the Circuit Court will be quashed;- otherwise, the writ of certiorari will be quashed.</p> <p>3. In a penal proceeding the offense made punishable by the statute must clearly appear by - the' allegations of the information or by necessary inference from express allegations.</p> <p>4. The misrepresentation made an offense by Section 3726, Gen. Stats., 1906, Sec. 5711, Rev. Gen. Stats., 1920, is that which is made in connection, with a sale of the commercial fertilizers referred to in the statute, which misrepresentation appears on the “label or tag” that is required to be attached to the package containing the commercial fertilizer that is sold.</p> <p>5. Where an information in a criminal prosecution does not contain essential allegations to state the offense, and the defect is fatal, it can not be cured by evidence; and relief by certiorari may be appropriate in the absence of appellate procedure where the penalty is a fine against a corporation, the writ of habeas corpus not being available as in case of illegal deprivation of personal liberty.</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 Jackson County; C. L. Wilson, Judge.</p>

<p>1. Error cannot be predicated upon the exclusion of a question if the testimony sought to be deduced is subsequently brought out.</p> <p>2. Evidence that has a tendency to prove an agency, is admissible, even though it be not full and satisfactory, and it is the province of the jury to pass upon it.</p> <p>3. Payment of a debt is not necessarily a payment of money; but that is payment which the parties contract shall he accepted as payment.</p> <p>4. An amended pleading which is complete in itself and does not refer to or adopt a former pleading as a part of it, supersedes the former pleading which ceases to be a part of the record.</p> <p>5. An. amended pleading takes the place of a former pleading, and stops all further use thereof, as a pleading.</p> <p>6. The prima facie effect of the amendment of a pleading is an acknowledgment hy the pleader that he has been mistaken, and not that a party or pleader has knowingly made a false statement in the pleading- amended.</p> <p>7. Papers not a part of the record in- a cause should not be exhibited to the jury and commented upon hy counsel in his argument before the jury.</p> <p>8. Counsel has no right to introduce arguments that are not supported hy the evidence produced on the trial.</p> <p>9. It is not proper to attack the credibility of a party to a suit, who testifies on his ow.n behalf, unless such comment is based on facts appearing in the evidence, or unless it can he deduced from the witness’ appearance and conduct while giving his testimony.</p>

<p>A Writ of Error to a judgment of the Circuit Court within and for the County of Bay; D. J. Jones, Judge.</p>

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

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

<p>A Writ of Error to the Circuit Court for Alachua County; L. P. Hardee, Referee.</p>

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

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

<p>An Appeal from the Circuit Court for Hillsborough County; F. M. Robles, Judge.</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 Dade County; G. W. Whitehurst, Judge.</p>

<p>1. In a suit to foreclose a chattel mortgage to secure a store account, where the defendant in a petition sets out and shows the Court that the discovery and production of the books and accounts and papers of the complainant is necessary to' enable- the defendant to make' a correct and definite answer Jo the bill, and asks that the complainant deposit them with the clerk of the Court a sufficient length of time for the defendant to examine them and prepare an answer to the bill, it is error for the court to refuse to make an appropriate order to permit the defendant to avail himself of the data contained in such books of accounts and papers.</p> <p>2. Where a series of notes secured by chattel mortgages are given from year to year, the new one for the balance due on the old, with additional amounts charged to the mortgagor between the date of executing the old and new mortgage, in a suit to foreclose the last mortgage, the defendant has a right to set up in his answer and prove, everything in relation to all transactions between the complainant and the defendant from the date of the first transaction for which first the note and chattel mortgage was given.</p> <p>3. The giving of a note and chattel mortgage to secure a store account covering a period of a year is not conclusive that the amount stated in the notes and mortgages is correct, and is not an acknowledgment of the amount of the indebtedness, and where the answer denies that the amount stated in the note is the amount of the indebtedness of the mortgagor, he has the right to show that the amount stated in the mortgage is not correct, and for this purpose he may require the production of the books of account of .complainant.</p>

<p>1. Where no material errors of law or procedure are shown to have been, committed in a trial and the evidence is sufficient to sustain the verdict, the judgment will not be reversed on writ of error.</p> <p>2. Where the nature of the case does not warrant it, the court should not in a tort action charge the jury that in determining the amount of damages to be awarded, they may - consider “the age of plaintiff, his sex and race;" but where the verdict is for the defendant the erroneous charge may be immaterial or harmless.</p>

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

<p>1. The Eighteenth Amendment, being the paramount law of the United States and of the States, on the subjects covered by it, supersedes or restrains the operation of all provisions of the Federal Constitution and of the amendments thereto, in so far as such provisions are in conflict with the commands of the latest amendment. All State laws, whether organic or statutory, that conflict with the Eighteenth Amendment are thereby rendered unenforceable.</p> <p>2. Neither the Congress nor a State can confer a right that violates the commands of the Eighteenth Amendment. But the Congress and the several States have express “concurrent power to enforce” the amendment “by appropriate legislation.”</p> <p>3. In so far as State laws are appropriate to enforce the prohibitions contained in the Eighteenth Amendment, they may be valid, though they differ from Federal enforcement laws as to procedure or penalties, for in enforcing the organic prohibitions the State and Federal powers are concurrent.</p> <p>4. In the absence of an. organic definition Congress has implied power to define the subject of a Federal organic prohibition or regulation; and the definition of “intoxicating liquors” enacted by Congress is dominant to make the prohibition of the Eighteenth Amendment uniformly effective wherever they are applicable.</p> <p>5. In enforcing the organic prohibitions the Congress and the States may enact statutory regulations and prohibitions of the possession of intoxicating liquors for beverage purposes as a means to effectuate the main, purpose. But such statutory prohibitions'must conform to all applicable provisions of organic law.'</p> <p>6. The courts take judicial notice that whiskey is an intoxicating liquor, the possession of which is regulated by statute within organic limitations.</p> <p>7. Where an illegal sentence is rendered upon a plea of guilty, and the defendant seeks relief in habeas corpus proceedings, the petitioner may be remanded for a proper sentence, if the plea of guilty is predicated upon a sufficient charge under a valid statute.</p>

<p>Where replevin is brought by a married woman as plaintiff, and a motion by her counsel that her husband “be joined with her as a party plaintiff” is granted, and judgment is rendered against the married woman “joined by her husband plaintiffs,” and G-. and S. “the sureties on the plaintiffs’ bond,” both for the property and for damages, the judgment is not void and will not be qua’shed on certiorari.</p>

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

<p>1. Under the statute (Section 5051, Revised General Statutes of Florida, 1920) the unlawful carnal knowledge and abuse of a female child under the age of ten years is rape.</p> <p>2. Under an indictment charging unlawful carnal knowledge and abuse of a female child under the age of ten years there may be a conviction of an assault with intent to commit rape.</p>

<p>An Appeal from an Order of the Circuit Court for De Soto County; John S. Edwards, Judge.</p>

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

<p>1. Neither evidence of the contents of pleas nor the pleas themselves of defendants, not signed or sworn to, in an action on a bond upon which they are sureties are admissible as evidence against such defendants who are complainants in a subsequent suit between such sureties brought for the purpose of requiring certain of them, who are defendants in the latter suit, to contribute each his ratable proportion of the obligation to complainants who have paid the amount in full upon the grounds, first, that if offered for the purpose of adding probative force to the evidence of defendants such evidence is inadmissible because in the nature of self-serving declarations, and, second, if offered to discredit complainants in the latter action it is inadmissible because such pleas "are neither signed nor sworn to by them and are therefore ineffectual to estop them from assuming a contrary attitude.</p> <p>2. “The rule is well settled both in England and in the United States that an act done by a person in the presence of another, and by his direction or with his consent, as the signing or execution of a sealed instrument, for example, is not regarded as the act of an agent, but is the direct act of the person by whose direction it is done.”</p> <p>3. Where testimony is conflicting, but there is evidence sufficient to support the finding of the chancellor upon questions of fact the decree will not be reversed unless it clearly appears to be erroneous.</p>

<p>1. In an action by a passenger for injuries received by the operation of a railroad train,' it is in general sufficient to allege ultimate facts showing that,the relation of passenger and, carrier existed,, and that the defendant negligently did qr omitted the act or acts that prqximately caused or coritributed to causing the injury as stated, the specific fact' that actually caused the injury being duly alleged so that a definite issue may be presented for trial. ‘</p> <p>2. In an action under the statute for damage done by the running of a train of a railroad company, where the plaintiff clearly proves the negligence alleged, the statutory presumption is then superfluous, and it need not be given in. the charge.</p> <p>3. Where the' statutory presumption of negligence is applicable to put upon the defendant railroad company the burden of proving due care and diligence, the presumpt ion does not outweigh proofs that the employees of the defendant company did in fact use due care in the premises; but the question of liability is to be determined by a proper consideration of all the evidence adduced under appropriate charges as to the law.</p> <p>; • i</p> <p>4. While passengers take the risks properly incident to volúntary travel on a mixed passenger and freight train, yet they do not take risks that are imposed by negligent operation; and if such a train is so operated as to unduly or unreasonably cause sudden violent movements and stops, that ■ injure passengers while they are exercising. the privileges they are entitled to as such passengers, the company may be liable in damages for injuries proximately resulting from such negligent operation.</p> <p>5. A passenger on a railroad train is not required to remain in his seat at all times during the transit; and if- in the exercise of due prudence, he stands or moves about in the car, and while so standing or moving is injured by unduly violent stops or movements of the car in its operation, he may recover reasonably compensatory damages.</p> <p>6. Where there is sufficient evidence to sustain a finding that ’ the car on which plaintiff was a passenger was suddenly and with great and unusual violence moved in a manner.: substantially as alleged in the declaration, and the':. ev,i7 dence of the injuries sustained by the plaintiff as a proximate result of the violent impact, is sufficient to support ' the amount of damages awarded by the verdict, thé jud¿-"' ment will be affirmed.</p>

<p>An Appeál from a Decree of the Circuit Court within and for the County of Pinellas; O. K. Reaves, Judge.</p>

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

<p>1. Where the necessities of the wife and the faculties of the husband are established by the pleadings it is not error for the judge to make an. order for temporary alimony and counsel fees, without reference to a master.</p> <p>2. Alimony pendente, lite is awarded to furnish the wife, from whom the husband has withdrawn his support, with the means of living, and for the further reason, in which there is a high public interest, that she may not become a charge on the State, while her rights are being adjudicated. ' Counsel fees are awarded to enable the wife to maintain or defend her suit.</p> <p>3. The matter of granting a stay of an order awarding temporary alimony and counsel fees is within the judicial discretion of the Circuit Judge, subject to review in this court upon application by the appellant.</p> <p>4. Upon a proper showing this court will make an allowance for counsel fees for an indigent wife for services rendered to her in this court.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; George Couper Gibbs, Judge.</p>

<p>A Writ of Error tó a judgment of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>1. Rule 20 of the Supreme Court requires the brief for the plaintiff in error to be in accordance with and confined to the distinct. specifications of error contained in the assignment of error and each ground of error insisted upon to be argued and separately presented and numbered in proper order with citations of authorities relied upon in support thereof.</p> <p>2. A general agent of a corporation cannot delegate to a subordinate agent the former’s authority to execute negotiable instruments on behalf of the corporation.</p> <p>3. Assignments of error not disqussed by counsel for plaintiff in error are considered as abandoned.</p> <p>4. There is no implied authority from a corporation to one of its officers to issue accommodation notes for third persons, although it might be bound by such obligations in the hands of a holder in due' course.</p> <p>5. Where the holder of a promissory note purporting to have been issued by a corporation by its treasurer for' the accommodation of a third person a co-partnership of which the treasurer executing the note was a partner and. such.fact is known to the holder of the note who discounted it before maturity, the burden is upon the holder to show that the treasurer making the note had authority from the corporation to execute a note in its behalf for such purpose.</p>