Volume 82 — Florida Reports

<p>An Appeal from a Decree of the Circuit Court for Hills-borough County; F. M. Robles, Judge.</p>

<p>The allegations of the hill of complaint and the exhibits made a part thereof, showing the present construction of a railroad bridge over a navigable stream some distance from the complainant’s riparian holdings, do not justify an injunction to preserve the common law riparian rights of the complainant.</p>

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

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

<p>1. In an action on a contractors’ bond to recover losses resulting from a failure of the contractors to complete the construction of a building undertaken and partially performed, where it appears that some changes were made in the building plans after the contractors abandoned the contract and that such changes were not acquiesced in by the sureties, and increased the cost of completion, and it does not appepar that such changes did not augment the amount awarded against the sureties or that the plaintiff completed the building without undue expenses to the sureties, the judgment will be reversed for appropriate proceedings.</p> <p>2. While sureties are liable to the full extent of their undertaking, their obligations should not be extended beyond the intent of the bond as expressed in its various terms.</p>

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

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

<p>It is not clear that in enacting Sections 13 and 20 of Chapter 7345, Acts of 1917, it was the law making intent to extend the common law scope of the writ of mandamus, and to make it applicable to persons who fail or refuse to dip their cattle pursuant to administrative regulations under the statute, particularly when the title of the Act indicates no such intent and such matter may not be properly connected with the subject that is expressed in the title of the Act.</p>

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

<p>1. To so modify a requested instruction as to make it accord with the facts in proof is not error.</p> <p>2. It is not error to refuse to give requested instructions upon points of law covered by the general charge.</p> <p>3. Evidence examined and found sufficient to support the conviction of murder in the second degree.</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 Hillsborough County; F. M. Robles, Judge.</p>

<p>1. A person owning an .interest in land which is sought to be partitioned is a necessary party to the proceedings.</p> <p>.2. .Where there is a decree awarding a partition of lands in which a person is interested who is not made a party to the proceedings, the decree will be reversed on apppeal.</p> <p>3. A bill in chancery which seeks,to annul the proceedings and decrees in another suit decided in the same court is not an original bill, but a bill of review. *</p> <p>4. A bill of review which does not rest upon error apparent, nor upon new matter arising after the rendition of the' decree sought to be annulled, may be filed only after leave of the court has been obtained.</p> <p>5. The allowance of a bill of review is not a matter of right in the parties, but rests in the sound discretion of the court to be exercised cautiously and sparingly and under circumstances that demonstrate it to be indispensable to the merits and justice of the cause.</p> <p>6. Want of equity in a bill of review may be taken advantage of by demurrer.</p> <p>7. Where an appeal is taken from an order dismissing a bill of review wbicb was filed without leave of the Court and rests upon no error apparent, nor matter arising after the rendition of the decree sought to be annulled, a motion to dismiss the appeal will be granted.</p>

<p>A Writ of Error to the Circuit Court for Seminole County; E. F. Householder, Judge ad litem.</p>

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

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

<p>EQUITY PRACTICE — DIVORCE—GROUNDS FOR, MUST BE STATED IN BILL MORE FULLY AND WITH GREATER PARTICULARITY AND DETAIL THAN IN THE BARE LANGUAGE OF THE STATUTE. IT IS ERROR TO ENTER A FINAL DECREE OF DIVORCE, WITHOUT ANY NOTICE OF THE FINAL HEARING, AND ON THE SAME DAY WITH THE FILING OF THE TESTIMONY TAKEN BY THE MASTER, WHEN THE MASTER’S REPORT IS FILED BEFORE .THE EXPIRATION OF THE TIME ALLOWED BY : LAW FOR THE TAKING OF EVIDENCE, AND WITHOUT ANY SETTING OF THE CAUSE DOWN FOR FINAL HEARING</p> <p>1. It is error for the court to render a final decree of divorce on the same day that the master’s report of the evidence taken is filed, when such report is filed before the time allowed by the rules for the taking of evidence has expired, and without any setting of the cause down for hearing, and without any notice of the final hearing.</p> <p>2. When a bill for divorce alleges the habitual indulgence by the defendant of a violent and ungovernable temper, simply in the language of the statute, but fails to give in detail such facts and circumstances, and such a continued series of such facts, acts- and behaviour as that the court can adjudge for itself whether such acts, facts and behaviour constitute the “habitual indulgence of a violent and ungovernable temper” as is authorized by the statute, such bill fails to state a case authorizing a divorce and should be dismissed on final hearing.</p>

<p>1. Certificates of analyses of samples of fertilizer analyzed by the State Chemist, which are verified by the affidavit of the State Chemist as true and correct under the provisions of Section 1271, General Statutes, 1906, made for a citizen of this state of fertilizer purchased by him from any manufacturer or vendor in this state for his own use, are competent evidence in any court of law or equity in this state.</p> <p>2. Sections 1271 and 1272, General Statutes, 1906, do not appear, from the facts presented, to deprive the defendant corporation of property without due process of law nor to deny to it the equal .protection of the law.</p> <p>3. Where there is such an insufficiency of evidence as to leave a material point in controversy uncertain and such a point is covered by the pleadings and it affirmatively appears that the additional evidence is available and justice seems to require a more complete development of the rights of the parties under the law, the cause may he remanded with direction to take further evidence on such point.</p>

<p>A Writ of Error to the Circuit Court for Broward County; E. B. Donnell, Judge.</p>

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

<p>1. The mere fact that defendant was riding in a car alone with the wife of another does not make the defendant the aggressor in bringing on a difficulty with the husband unless he committed some act or attempted act of violence toward the husband or the wife.</p> <p>2. The mere walking or driving of a married woman with another man, or a married man with another woman, is not sufficient provocation to justify an assault by either spouse.</p> <p>3. Where the evidence so greatly preponderates against a verdict that it may well be assumed that the jury were influenced by considerations outside the evidence, the verdict will be set aside and a new trial granted.</p>

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

<p>1. In order to warrant a recovery of damages by a plaintiff the evidence must be of such a nature as to produce a reasonable belief of the facts essential to the verdict, and the verdiet should accord with the manifest weight of the evidence and the justice of the case.</p> <p>2. Where the evidence would not in law support a verdict for the plaintiff there can legally be no recovery and the court should direct a verdict for the defendant.</p> <p>3. Where the trial judge in directing a verdict for the defendant states that “there is not sufficient evidence in this case for a recovery,” and the ruling is justified by the evidence, the directed verdict will not be disturbed on writ of error, no errors of law appearing.</p>

<p>A Writ of Error to the Circuit Court for Marion County; W. S. Bullock, 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 Pinellas County; O. K. Reeves, Judge.</p>

<p>1. The offense denounced by Section 3534 Gen. Stats., 1906, Sec. 5424, -Kev. Gen. Stats., 1920, and making punishable the. abomniable and detestable crime against nature either with mankind or with beasts is not merely the common law- crime against nature, but includes other acts of bestiality.</p> <p>2. Motions in arrest of judgment cannot be based upon matters wbicb do not appear upon the face of the record proper.</p>

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

<p>A Writ of Error to the Circuit Court for Okeechobee County; E. B. Donnell, Judge.</p>

<p>An Appeal from the Circuit Court for Brevard County; James W. Perkins, Judge.</p>

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

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

<p>1. The unexplained possession of recently stolen property is sufficient proof to uphold a verdict of guilty upon a charge of larceny.</p> <p>2. Larceny may be proved by circumstantial evidence if it is of sufficient probative force to support a legal inference of guilt beyond a reasonable doubt.</p> <p>3. Where the evidence is legally sufficient to support the verdict and there is nothing to indicate that the jury was influenced by considerations outside the evidence, the verdict will he affirmed.</p>

<p>An Appeal from the Circuit Court for Polk 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>A Writ of Error to the Circuit Court for Bay County ; 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>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 a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Bobles, 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>An Appeal from a Decree of the Circuit Court within and for the County of Brevard; James W. Perkins, Judge.</p>

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

<p>Application for supersedeas order;</p>

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

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

<p>1. Where a real estate broker procures a customer willing, ready and able to purchase property offered for sale according to the terms of the offer and the transaction is defeated on account of some fault of the principal, the broker is entitled to his commission although the sale is not consummated.</p> <p>2. Absolute precision and technical nicety of expression in instruction to the juries are not required.</p> <p>3. If instructions to juries contain correct declarations of the legal principles involved and fairly and reasonably present the issues made by the pleadings and presented by the evidence and the law applicable thereto, they are sufficient.</p> <p>4. It is not error for the court to refuse to give requested instructions which are substantially covered by charges which are given.</p>

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

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

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

<p>An'Appeal from an Qrder of the Circuit Court within and for the County of DeSoto; George W. Whitehurst, 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 the Circuit .Court for Hillsborough County; F. M. Robles, Judge.</p>

<p>A Writ of Error to the Circuit Court for DeSoto County ; George W. Whitehurst, 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>1. An action at law may be maintained by a tax payer against the tax collector for the recovery back of a tax illegally assessed and collected upon real property.</p> <p>2. A tax assessment upon property which as of the time it was assessed was not in existence is an illegal assessment.</p> <p>3. The action by the tax payer to recover back taxes illegally assessed and collected must be brought against the tax collector before he turns the money collected over to the State and county authorities.</p> <p>4. A declaration in an action to recover from the tax collector taxes illegally assessed and collected, which fails to allege that the tax collector has not paid the money so collected over to the State and county authorities is fatally defective.</p> <p>5. When sustaining a demurrer to one or more special counts of a declaration which also contains several common counts, judgment should not be entered against the plaintiff because he refuses to amend his special counts, until the common counts are withdrawn.</p>

<p>A Writ of Error to tlie Circuit Court for Dade County; A. J. Rose, Referee.</p>

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

<p>Where the evidence is insufficient to sustain a verdict finding accused person guilty, an order denying a motion for a new trial is error and the judgment will be reversed.</p>

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

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

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

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

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

<p>CRIMINAL LAW — INFORMATION CHARGING CRIME SUBSTANTIALLY IN LANGUAGE OF STATUTE —EVIDENCE —MARRIAGE CERTIFICATE.</p> <p>1. An information that charges that the defendant “did live in a state of open adultery” is sufficient, though the statute denouncing the crime, uses the language “living in an open state of adultery.”</p> <p>2. In a trial for crime, a paper .purporting on its face to have been issued in another State, and to have been signed by a deputy clerk of the municipality of New York, that has no seal of any court or office, and is not authenticated in any manner, and there is nothing to identify the authenticity or genuineness of the paper as being tona fide what it purports to he on its face, is not. admissible in evidence to prove a marriage of the defendant.</p>

<p>A bill in chancery for the rescission of the sale of shares of stock in a corporation which alleges that the complainant, a widow, inherited the stock from her husband, who, at the time of his death, was the president and chief executive officer of the corporation, holding a majority of the stock; that within ten days after her husband’s death the vice-president of the corporation, who held the remaining shares of stock save one share and who for years had been associated with complainant’s husband in the management of the corporation’s affairs and knew the extent of its business and .the value of all its assets, began negotiations with the complainant for the purchase of her stock and represented the same to be less valuable than it was and the business and assets of the corporation to be less in volume and value than they were; that the complainant knew nothing of the value of her stock or the value of the corporation’s assets, hut relied upon the representations of the vice president who pretended to be solicitous of her welfare because of the obligations he owed to.her deceased husband and the friendship he had for him, and by such representations induced her to rely upon his integrity and honesty of purpose, fidelity, character and good faith, and sold to him her stock at much less than its value in ignorance of its real value, states grounds for the equitable relief of rescission of the sale of stock by the complainant.</p>

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

<p>1. Where an indictment for murder of W. charges that the defendant shot off and discharged a pistol “at, upon and into the sa-id W., thereby and thus striking the said W. with said leaden bullets, inflicting on and in the body of the said W. one mortal wound,” etc., proof that the mortal wound was in the head of W., is hot a fatal variance, since in yiew of the terms of the indictment the words “and in the body of” may be regarded as meaning “and in the person of,” or as being surplusage.</p> <p>2. It is well settled that a defendant is not entitled as of right to an instruction to the jury to return a verdict of acquittal.</p> <p>3. An instruction in a trial for murder that there is no evidence before the jury authorizing a conviction for a particular degree of unlawful homicide violates the spirit of the statute requiring the charge to be upon “the law of the case only,” but such a charge, though technically erroneous, will not constitute reversible error, if it relates to a higher degree than that of which the accused was convicted, or if it relates to a degree lower, but there was no testimony before the jury from which it could with any-reason have formed a verdict of guilty of the excluded lesser degree.</p> <p>4. Where the evidence is ample to sustain the verdict and no error appears, the judgment will be affirmed.</p>

<p>A case of Original Jurisdiction.</p>

<p>1. Under the provisions of its charter, the City of Miami has the right to require the drivers of all automobiles for hire using the public streets of the city, to obtain a license from the city, and, in the interest of public safety, it may inquire into and decide upon the qualifications and fitness of persons to operate auto-cars. It may fix the fares to be charged for the transportation of passengers or property; may require the drivers or owners of cars operating for hire within the city limits to give a bond to guarantee the payment of valid claims for injuries to persons or property; may prescribe the number of persons that may be permitted to ride at one time in any such automobile, and make reasonable' rules and regulations governing the operation of automobiles for hire in the interest of public safety.</p> <p>2. Under its charter the City of Miami may require all automobiles operated for hire within the City of Miami to enter into a reasonable bond to guarantee the payment of valid claims for injuries to persons or property.</p> <p>3. An ordinance which requires owners or operators of jitney busses to enter into a bond in the penal sum of $5,000.00, and which provides that such bond “shall contain a provision that there is a continuing liability thereunder of not less than the full amount thereof,” “notwithstanding any recovery thereon” is an unreasonable requirement, and not within the scope of the authority conferred by the charter.</p>

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

<p>1. To establish guilt upon a charge of larceny of property of the value of more than twenty dollars proof beyond a reasonable doubt that the property stolen was of the value of twenty dollars or more is required.</p> <p>2. One charged with the commission of a criminal offense is presumed to be innocent and every essential element of the offense charged must be proved as allegéd, otherwise a verdict of conviction will not be sustained by the evidence.</p>

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

<p>1. Where in a chancery cause a demurrer to a bill is interposed but not formally disposed of, and the parties by agreement proceed to take testimony before a special master and after-wards submit the cause to the chancellor upon its merits, who renders a decree or makes a decretal order therein, the demurrer will be treated as having been overruled.</p> <p>2. Under the provisions of Section 3197 Revised General Statutes of Florida, 1920, a married woman although not a resident of this State, may maintain a suit against her husband, a resident of this State, for maintenance or contribution, unconnected with cause of divorce.</p> <p>3. In a suit by a married woman against her husband for maintenance or contribution under the provisions of Section 3197 Revised General Statutes of Florida, 1920, the court has power to require the husband to provide temporary alimony and suit money for his wife.</p> <p>4. Tty-e Chancellor’s finding on the facts will be accorded the same yeigbt as the verdict of a jury,, and a decree solely on ■questions of fact will not be disturbed unless the evidence clearly shows that it was erroneous.</p> <p>5. In a suit by a married woman for maintenance and contribution, it is not necessary for the complainant to make such a case as would entitle her to divorce from her husband under the statutory provisions of the State in order to obtain the relief sought.</p>

<p>1. A judgment of conviction' will not be reversed even if technical errors were committed in' rulings upon admissibility of evidence or charges given or refused where the evidence is sufficient to sustain a conviction and no fundamental rights of defendant-were infringed.</p> <p>2. Where the evidence, is legally sufficient to support the verdict and there is nothing to indicate that the jury were influenced by considerations outside the evidence, a judgment of conviction will not be reversed although there may be conflicts in the evidence.</p>

<p>An Appeal from the Cirenit Court for Dade County; H. Pierce Branding, Judge.</p>

<p>1. The authority of the Clerk of the Circuit Court to enter final judgments consequent upon defaults, is derived entirely from the statute, which must be strictly followed.</p> <p>2. The statute, Section 1035 Revised Statutes (Section 2622, Revised General Statutes of 1920) that gives authority to clerks to enter final judgments contemplates that the clerk can enter a final judgment after default only in those cases where the cause of action is purely and simply a money demand founded upon a contract for the payment of money only. In cases where extrinsic evidence dehors the contract sued upon is necessary to ascertain the amount to be recovered the clerk has no authority to entertain such evidence or to found a final judgment thereon.</p>

<p>Where a declaration states a cause of action, and an order for compulsory amendment does not fix the time for such amendment, the cause should not on petition without notice be dismissed for failure to amend even though three rule days had elapsed since the order for amendment had been made.</p>

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

<p>1. An indictment which charges one person with an assault upon another with intent to commit a felony and a third person as being present at the time of the commission of the felony, aiding and abetting in its commission, charges such third person also with the offense of assault with intent to commit a felony. The distinction being that such third per- ■ son is charged as principal in the second degree while the principal offender is charged as principal in the first degree.</p> <p>2. It is not essential that a verdict of assault with intent to commit murder shall state the degree of murder.</p> <p>3. A person charged as principal in the second degree to an assault with intent to commit a felony may be convicted as principal in the first degree.</p> <p>4. A charge to the jury which is not so unclear in its language as to mislead the jury to the detriment of the defendant does not constitute reversible error.</p> <p>5. A person charged with a criminal offense and correctly named in the indictment, who is called to the bar by another name being a mere contraction of his Christian name and responds to such call and pleads to the indictment and goes to trial upon the merits waives whatever defense he may have interposed by plea in abatement.</p>

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

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

<p>1. Where a valid contract of sale of a commodity for delivery at a time in the future at an agreed price is breached by the vendor, the measure of damages is the difference in price between what the vendee agreed to pay for the commodity and the market price at the time it was to have been delivered at the place of delivery.</p> <p>2. The repudiation of a contract of sale by the” vendor and refusal to deliver the thing sold gives to the vendee a right of action for the breach of the contract.</p> <p>3. Representations made by the purchaser of a commodity to the vendor as to why the purchaser wished to buy the article, the probability'of a decline in the market' price at a later time, as to the reason why he is agreeing to pay a larger price than the market seems to justify, aré not such representations as will justify an avoidance of the contract by the vendor upon discovering that they were untrue, where the relations of the parties were not of such a character as to require the exercise on the part of the vendee toward the vendor of a greater degree of good faith and fair dealing than he would be required to exercise in trading at a'rms length.</p> <p>4. A mere statement of opinion, belief or expectation, although false or resting upon no information is not such a false representation as to constitute fraud when made or exchanged between persons trading as strangers for an article of personal property.</p> <p>5. An averment in a plea to a declaration upon a contract of sale for its breach that the price which the vendee agreed to pay for the article was lower than the market price is not good as showing the plaintiff’s misrepresentation or purpose to deceive.</p>

<p>1. Striking a pleading is a severe remedy and should be resorted to only in cases palpably requiring it for the proper administration of justice.</p> <p>2. Even though there may be technical error in an order striking a pleading, such error will not require a reversal of the judgment if it affirmatively appears that the party whose pleading was stricken was not harmed thereby.</p> <p>3. Technical error in striking a pleading will not be held to be harmful if it affirmatively appears that the party whose pleading was stricken was permitted to submit his case under other pleadings that gave him all the benefits that he would have had if such pleading had not been stricken.</p> <p>4. Special pleas tendering an issue covered by a plea of the general issue in a case in which such latter plea is applicable may be stricken upon motion of plaintiff or by the court of its own motion.</p> <p>5. Where a contract of sale of personal property requires the vendor to deliver the property sold at some fixed time and place where payment of the purchase price therefor is to be made on delivery, title will not pass until delivery and payment are made in accordance with the terms of the contract.</p> <p>6. The rule is that where in the sale of personal property anything remains to be done before the sale is considered complete, whether by vendor or vendee, as between the parties themselves the title to the property does not pass. Held: Applying this rule, that where animals are sold according to weight and under the contract of sale the weight is to be ascertained at some later fixed date upon delivery, title will not pass until the weight is ascertained, payment therefor made and the animals delivered.</p> <p>7. A plea to. a declaration on a contract which attempts to set up a defense to the action that the contract entered into was máterially different from, the contract sued on amounts in legal effect to no more than- a denial of the contract asserted which is available as a defense under the plea that • defendant did not promise as alleged.</p>

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

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

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

<p>An Appeal from the CircuitCourt for Bradford County; A. V. Long, Judge.</p>

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

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

<p>1. A promissory note in the hands of the original payee is subject to all equitable defens.es to which the maker is entitled, even though the original payee had transferred the note before maturity in due course to a bona fide holder and afterwards acquired it again from such holder, unless the maker’s equities arose from transactions between him and the first transferee before maturity of the note.</p> <p>2. The sufficiency of an averment setting up an affirmative defense in an answer to a bill to foreclose a mortgage lien may under Chapter 6907, Laws of Florida, 1915, be tested by a motion to strike such averment.</p> <p>3. The breach of a parol agreement existing between the maker of a promissory note and the payee not in his individual capacity, but in a representative capacity as officer of a cor- . poration having no interest in the execution of the note is not the proper subject of a set off or counter claim in a suit by the payee of the note to foreclose a mortgage given to secure its payment.</p>

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

<p>1. A complete contract binding under the statute of frauds maybe gathered from letters, writings and telegrams between the parties relating to the subject matter of the contract, and so connected with each other that they may be fairly said to constitute one paper relating to the contract.</p> <p>2. A mere offer to sell real estate, upon specified terms, may be withdrawn at any time before its acceptance. But if the offer be accepted without conditions, and without varying its terms, and the acceptance be communicated to the other party without unreasonable delay, a contract arises, from which neither party can withdraw at pleasure.</p> <p>3. An informal execution of a deed majr be a sufficient writing to satisfy the statute of frauds in the matter of contracts to convey realty.</p> <p>4. A deed of conveyance is a contract in writing that does not require actual delivery to vendee to make it effective as an instrument in writing and signed by the party to he charged under the statute of frauds.</p>

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

<p>LARCENY — ANIM0 FURANDI MUST BE SHOWN.</p> <p>1. In larceny it is essential to a conviction that the property was taken "animo furandi,” and where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been, mistaken, he can not he convicted of larceny.</p> <p>2. In charges of larceny where the taking is open, and there is no subsequent attempt to conceal the property, and. no denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence, before a conviction is authorized.</p>

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

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

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

<p>1. An order nunc pro tunc may he made tp correct a mistake in failing to enter an order that was actually made.</p> <p>2. An order can he entered nunc pro tunc to make a record of what was previously done hy the court, although not then entered; hut where the court has wholly omitted to make an order, which it might or ought to have made, it cannot afterward he entered nunc pro tunc.</p> <p>3. In the absence of a contrary showing the presumption is that a nunc pro tunc order was made to effectuate an order actually and duly made, hut which hy mistake was omitted from the minutes of the court.</p>

<p>Where there is substantial competent evidence to support the verdict and there is nothing to indicate that the jury were influenced hy considerations outside the evidence, the verdict will not be disturbed.</p>

<p>1. Where a party is not injured by tbe rulings of a trial court upon his pleas, hut is allowed to avail himself, under the pleas which are filed and not stricken, of the matters sought to be presented under the pleas which are stricken, the rulings will not be considered reversible error even if the pleas stricken should have been allowed to stand.</p> <p>2. In an action upon a simple contract alleged in the declaration to have been made by plaintiff with the defendant through the latter’s agent, a plea of the general issue denies the agency of the person named as the agent of the defendant through whom the contract is alleged to have been made.</p> <p>3. In an action upon a simple contract, the defense that it was not valid under the statute of frauds is available under the general issue.</p> <p>4. Evidence examined and found sufficient to support the verdict.</p>

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

<p>Where a charge given to the jury assumes that essential elements in, the case have been established by the proofs,, when the evidence as to them is not conclusive, but is conflicting, and the charge, appears to - have been harmful to the complaining party, the judgment will be reversed.</p>

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

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

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

<p>1. The intention to feloniously deprive the owner permanently of his property at the time of the taking is an essentia] element in the crime of larceny, and whether such intention existed is a question of fact for the jury.</p> <p>2. In a prosecution for larceny where the defendant offers evidence that the taking was in good faith under a claim to title in himself, a presumption of fact arises in his favor that the taking lacked the elements necessary to constitute larceny.</p> <p>3. One who obtains possession of an article by trick, device or ■ fraud, with intent to appropriate the article to his own use, the owner intending to part with the possession only, commits larceny when he subsequently appropriates the article.</p> <p>4. It is not necessary to constitute the offense of larceny that the person taking the property should do so from motives of gain, an intention to deprive the owner of it permanently is alone sufficient when the taking was by stealth and unlawful.</p> <p>5. A charge to the jury which may be more liberal than the law requires, but in favor of the defendant, will not be considered cause for reversal of the judgment.</p> <p>6. Evidence examined and found sufficient to show lack of consent to the taking.</p> <p>7. It is not error to refuse instructions requested by the defend- and when such instructions are fully covered by the general charge.</p> <p>8. Charges inapplicable to the evidence are properly refused.</p> <p>9. In a prosecution for larceny the corpus delicti can not be proved by the confession of the defendant, but such confession may be considered in connection with other evidence to establish it.</p> <p>10. A recommendation by the jury to mercy in a prosecution for larceny is without authority of law and can not be considered by the court as a circumstance of any significance affecting the weight which the jury gave to the evidence or the credibility of the witnesses.</p>

<p>1. Objections to evidence should be specific, clearly indicating not only the grounds of objection but the particular part of the document, or thing introduced, or statement of the witness to which the objection is deemed to be applicable.</p> <p>2. A motion to strike evidence which is deemed inadmissible should be confined to that part of the evidence which is objectionable and not be directed to the entire statement or testimony of the witness as a whole.</p> <p>3. Section 4263 Revised General Statutes which provides for the payment of attorney’s fees to the plaintiff by an insurance company or association which unsuccessfully defends an action upon a policy of insurance issued by it is valid as an appropriate police regulation of a business affected with a public interest.</p> <p>4. Attorney’s fee provided for by statute to be paid by insurance companies, corporations or associations which unsuccessfully defend actions upon policies of. insurance issued by them, should be demanded in the declaration, as if the action sought to enforce a penalty.</p> <p>5. Where a declaration upon an insurance policy does not contain a clause demanding the payment to plaintiff of an attorney’s fee or alleging what sum is under the circumstances a reasonable attorney's fee, evidence upon the subject is inadmissible and judgment should not be entered therefor, but in such case if the parties during the trial agree among themselves, either in writing or orally, upon a sum to be paid by the defendant as a reasonable attorney’s fee in the event of judgment for the plaintiff the judgment will not be reversed because it adjudges the payment of such attorney’s fee.</p> <p>6. In an action upon a fire insurance policy insuring against loss or damage to personal property by fire, where the policy contains a clause to the effect that the property described in the policy is to be covered by the insurance only while the property is located and contained in a certain building, it is error to refuse to instruct the jury that it should not consider the value of any property destroyed and described in the policy which at the time of its destruction was located in a building other than the one named in the policy.</p> <p>7. Where a correct instruction is requested and refused it will not be deemed to he reversible error if the same benefit sought by the complaining party in the instruction requested is obtained by an instruction given by the court in its general charge.</p> <p>8. Under a plea, to a declaration upon a fire insurance policy, averring that the plaintiff was guilty of false swearing in the proof submitted by her of the property which she claimed was destroyed, it is not error to instruct the jury that the plea set up an affirmative defense and the burden was upon the defendant under it to show not only that the plaintiff swore falsely, but that the oath was made for the purpose of deceiving and defrauding the defendant.</p> <p>9. The charge of the Court in its entirety upon any one phase of the case should be considered before it can be detetrmlned that a particular requested charge upon an isolated point was erroneously refused. If the charge considered as a whole is without error and covers the point embraced in the refused instruction the refusal to give the special instruction, is not reversible error.</p> <p>10. Evidence examined and found sufficient to support the verdict.</p>

<p>1. Books and documents necessary to the proper determination of the case, cannot be considered by this court unless copied in the transcript of record duly certified to by the clerk of the Circuit Court.</p> <p>2. Physical objects incapable of being copied in the transcript of the record, introduced in evidence as exhibits, may upon proper order be sent to the appellate court for its consideration, but this does not apply to books and documents that are capable of being copied.</p> <p>3. If everything contained in books, whether material or not, is admitted in evidence, it must all be brought to this court by being copied in the transcript, as this court does not know and cannot say what should be included and what omitted.</p> <p>4. If only certain indicated portions of books are offered in evidence, only such portions should be incorporated in the transcript.</p> <p>5. If books and papers are offered in evidence, only certain portions of which are material or relevant, counsel may under the provisions of Section 3174 Revised General Statutes of Florida, 1920, stipulate in writing what portions of such books and papers shall be included in the transcript of the record.</p> <p>6. If there are marginal notations which require the scrutiny of the court to determine their genuineness, the books upon proper order may be sent with the transcript of the record, but they come to the court only for such purpose, and cannot be considered as evidence unless their ■ contents are copied in the transcript.</p>

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

<p>1. Where the testimony shows an elaborate and well conceived plan to burn a house with intent to injure an insurance company, and the house is actually burned as the result of such plan, it is no defense that the fire did -not occur in just the manner in which it was planned.</p> <p>2. Where a motive' and desire to have property destroyed by fire is shown, and a well conceived plan to carry out the desire, and an opportunity to carry out the plan, and the house burns as a result of the plan, although not exactly in accordance with it, a conviction will be sustained.</p> <p>3. Where a trial judge is advised that improper influences are being exercised either for or against a defendant, it is proper for him to apprise the jury of such fact, and caution them against such sinister influences, and warn them to remain entirely away from any conversation between or with any individuals in relation to the case on trial.</p> <p>4. On the authority of the case of Vasques v. State, 54 Fla. 127, it is held that the omission of the words “or lack of evidence" from an instruction that “doubt which is not suggested by or does not arise from the evidence is no reasonable doubt, and should not be considered,” is not reversible error.</p> <p>5. The instruction that “a doubt which is not suggested by or does not arise from the evidence is no reasonable doubt, and should not be considered,” approved in the Vasques case, would state the rule more clearly, and remove all criticism, if the words “or lack of evidence” were included in it.</p>

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

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

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

<p>1. Where the decree of a chancellor is unsupported by and contrary to the evidence it will he reversed by this court' on appeal.</p> <p>2. In an equity suit brought by a property owner to restrain a tax collector from seizing personal property for the purpose of enforcing collection of a property tax assessed against such .property, where the decree .is against the property owner, there is no authority in this State for including in such decree an amount to be paid by such complainant property owner as attorney fees to the defendant tax collector.</p>

<p>1. In an action to recover damages for property burned by fire set out or communicated by the negligent operation of a railroad locomotive, it is. encumbent upon the plaintiff to show that ‘.the damage complained of was in fact caused by the defendant as alleged.</p> <p>2. When it is duly made to appear that fire was proximately communicated to property by a defendant railroad company in the running of its trains or locomotives as alleged, and that inury resulted as charged, a presumption of negligence on the part of the defendant in causing the damage, is raised by the statute, and the burden is then upon the company to show by appropriate evidence that its agents “exercised all ordinary and reasonable care and diligence” to avoid the injury complained of.</p> <p>3. Proof that the fire causing the injury was in fact communicated from the defendant’s train or locomotive should be made by positive or affirmative evidence or by testimony from which a reasonably certain inference may be drawn that is not repugnant to the evidentiary facts and circum- , stances.</p> <p>4. To support a judgment for damages the evidence should, inherently and when taken in connection with other pertinent facts and circumstances in evidence, produce a reasonable belief of facts essential to a recovery.</p> <p>5. When evidentiary facts that are essential to a recovery are not clearly established, errors in charges that are calculated to confuse or mislead the jury, may be harmful and may cause a reversal of a judgment in order to preserve fundamental rights or to prevent a miscarriage of justice.</p> <p>6. The use of machinery and appliances of the most approved character that are in general use and appropriate to the service being rendered and reasonably safe in use under the circumstances in which a railroad is operated, satisfies the requirements of the law as to the defendant’s duty.</p> <p>7. Where the evidence does not clearly establish liability and inapplicable or inaccurate charges that are calculated to mislead or confuse the jury are given, a judgment for the plaintiff may be reversed.</p>

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

<p>1. All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration.</p> <p>2. Where it appears from the record and the opinion of the court that a certain conclusion upon a material question involved is inevitable and except for such conclusions the judgment would have been otherwise, such question will of necessity be held to be adjudicated by the court although .such conclusion is not stated in express words.</p>

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

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

<p>1. While parties may make a conveyance whereby one will be entitled to perpetual right to enter upon the land of the other and remove trees or timber thereby conveyed therefrom such an agreement is so unreasonable in its nature that no contract will be held to have this effect unless it is plainly manifest from its terms that such was the intention of the parties.</p> <p>2. A deed conveying trees or timber growing and standing upon land without stipulating the time within which it must be removed will be construed as implying that such removal shall be accomplished’ within a reasonable time, where the terms of the conveyance and the circumstances attending the transaction afford a just basis for an adjudication of such an implication or intendment.</p> <p>3. What may be regarded as a reasonable time for removing trees or timber from lands of another where no definite time ■ within which it should be removed is expressed in the conveyance of such trees or timber will1 be determined not by the arbitrary will of either of the parties to the • conveyance, but by a consideration of the terms, express .and implied, of the conveyance the location and nature of the trees or timber conveyed, the quantity of same, transportation facilities available, accessibility of manufacturing plants adapted to its manufacture, and uses of the timber and land, as well as all other circumstances surrounding the transaction and the parties thereto.</p> <p>4. A timber deed conveyed the pine and cypress trees or timber of certain stated dimensions then upon the land described, the conveyance containing a provision that the grantee should remove the pine trees - or timber conveyed .off the land “within ten years” from the date of the deed- and the cypress trees or timber when the grantee “so desires.” Held; that the provision when the grantee “so desires” did not give the grantee a perpetual right to go upon the land for the purpose of cutting and removing such cypress trees or timber nor the right to remove such cypress trees or timber conveyed at its own convenience without regard to lapse of time, but in view of the circumstances surrounding the transaction should be construed, to mean a reasonable time and without unnecessary delay.</p>

<p>1. The statute (Sec. 2908 Revised General Statutes) provides that “no writ of error shall be granted to the original plaintiff in any suit unless said plaintiff shall-first pay all costs which may have accrued in and about the said suit up to the time when said writ of error shall be prayed.” Held; that the payment of all costs which may have accrued in and about the said suit up to the time a writ of error is prayed is an indispensible prerequisite to the right of the original plaintiff to demand a writ of error and that the payment by him of such costs only as shall have been previously incurred in such litigation by said original plaintiff is pot a compliance with the statute.</p> <p>2. A writ of error will be dismissed on motion made for that purpose where plaintiff in error was the original plaintiff and had not previous to suing out his writ of error paid all costs incurred in the court below.</p>

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