The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-01-28
- :, p.der ,ec,iou Il Il article of he

opsrssivs uader section Il II article Of the
Constitutes.
Judgo0ent fevefged.
DAVIS icr Appellant; r. b Bedford for Appel
lee.
+. ]. Mccoy, Appellant, ~. Louis B"ley, Appel
lse-Escambia county.
RAxxY, j.:
1. An omission 70 state the name Of Defend
ant 10 the Introductory part Of bill Ia equity.
under Equity Rule ~, 10 ground OF special de-
murref Objection on account OF SUCH omission
cannot be made under mere general demurrer;
nor can such objection Be urged 10 me Appellate
Court when the record does not show that II
was presented and passed upon In the lower
court.
Q. An allegation in bill TO foreclose q mort
gage, that defendants interest, II he has any.
has accrued since the mortgage and Is subject to
proper party, and is not demurrable rs stating no
cause oil action against him.
g. An instrument executed by one member OF
Q partnership in the firm name and legally bind
ing upon the partnership and entitled to be re-
corded under the registry statutes of Florida,
may be admitted TO record upon the acknowl
edgment Of the partner who executed IL. (San.
ders vs. Pepoon, 4th Fla, 465. approved but dis
tinguishcd)
l. The statutory requirement that an officer
taking the acknowledgment Of an instrument
for record, shall know or have satisfactory proof
that the person making the acknowledgment is
the individual described in and who executed
the instrument applies only to cases in which
the instrument has been executed or is acknowl-
edged out of the State.
g. A mortgage duly recorded is moi void as
between the parties 10 it, or as tO third person
whose claim is not based on a valuable consider
| alton, from the fact that II permits the mOrtga
gOr to sell personal property covered by II with
| out accounting to the mortgage for the pro-
| ceeds.
Decree reversed and cause remanded.
]. p. Jones and J. E. Y0nge, for Appellant !;
J. c. Avery, for Appellee.
Louisville & Nashville r. R.. Plaintiff IN Error,
| vs.. Annie e. Yniestra, Defendant in Error
| Escambia county.
MoWHoRTER, C. j.:
| l. An instruction which assumes facts alleged
therein TO have been proven, is erroneous and is
| properly refused.
Q. Negligence on the part of plaintiff which
contributes to the injury of which he complains,
| is q matter OF defense which the defendant must
set up and maintain by proof, unless The plaintiff
own evidence in support of his cause Of action,
| shows that presumption oil contributory neg
| ligence is plainly inierabe from said evidence,
in which case the burden of proof is shifted and
1t becomes the duty OF the plaintiff to remove
| such presumption.
8. Notwithstanding the fact that person may
be guilty of negligent act from which injury
results to another, yet it the person injured
could by exercising ordinary prudence have pre-
vented said injury, or by his own act he contrib
uted to said injury, he can not recover damages
resulting therefrom.
l. The injury must he solely caused by the
negligence of the defendant. 1t is not enough
that i should be essentially so caused
8. Ordinarily the question of cOntributOry neg
ligence is a question of fact for jury under in
structions from the court, but when there is nc
contradiction in the evidence and the facts are
undisputed, and the conclusion and inference
to be drawn from it is indisputabe, involving
only a common instinct of mankind-selfpres
ervatiOn-it becomes a question law.
6. When railroad track, by authority OF Law, is
laid in public thoroughfare, the right of the com
pany owning said track TO operate trains thereon
is superior to the right of the general public to
walk along said track, but having superior
right thereon does not relieve the company from
liability TO damage for injury to persons caused
solely by its negligence in using said track.
Z. When a person voluntarily walks on and
along the track of railroad laid in public
thorOughfare, which he knew was used as a
switch yard on which locomotives were passing
to and fro night and day, where the walking or
either side OF said track was as good as on The
track, and in doing so is run over by a passing
train and killed. he has by the failure TO exer
else ordinary care and prudence directly con
tributed to his own misfortune, and his rcpresen
tative cannot recover from the company using
said track damages therefor.
Judgment reversed and new trial granted.
w. A. Blount, for Plaintiff in Error; J. G
Avery, for Defendant in Error.
Jehn Pine, Appellant, VS.. Marie Anderson, AID
ministratrix, ct al, Appellees - Escambis
county.
McWHoRTER, C. j.:
l. a
common law action can he brought before thi.
court, is by incorporating il in bill of excep
tons signed by the Circuit Judge.
Q. The court will 10 an appeal, when there il
no bill OF exceptions taken, inspect the record
and if there be no error apparent thereon will af
firm the judgment of the court below.
Judgment affirmed
r. q. Fries for Appellant; W. A. Blount fol
Appellees.
William Heron, Plaintiff in Error, vs. The State
Of Florida, Defendant in Eror-Orangt
county.
| VANVALKENBURGH, J.:
1. Where a charge of The court to the jury EN-
braces several distinct propositions, general ex
ception to the charge so gwen is not available il
any one of the propositions is correct Dupuis
vs.. Thompson 16 Fla, SO.
Q. On the trial of an Indictment for wilfu
and malicious destruction of property under
nS statutc' (mCO .. Olg., ch6pter oo, SOL tue
value Of the property is not question for the
jury, but the wilful and malicious destruction
of such property without regard to its value, is
the question for their consideration.
8. In such a case the destruction and malice
may be proven by circumstancal evidence salts
factory to the jury.
4 A person claiming land in possession of an
other, Ia remited TO his action at law or in equity
to recover possession, and he cannot resort TO
destruction of property By fire or otherwise TO
get the possession
Walter r. Yates, for Plaintiff in Error; Attor-