That after the vacation of said default and final judgment in said cause the said John A. Henderson caused another suit to be filed in the circuit court of Hillsborough county, Fla., upon the letter hereinabove set out, dated June 4, 1919. And such proceedings have been had in said second suit that a verdict was recovered against the said Benjamin and Kendrick, and in favor of the said John A. Henderson, in said court on February 24, 1922, for $5,116.72, on which a judgment has been entered and an execution issued and certain property of the said defendants, Benjamin and Kendrick, has been levied upon and is being advertised by the sheriff of said Hillsborough county, to wit, to be sold on the first Monday in April, 1922.

Your orator alleges:

That, while the said second suit, based upon said letter, is predicated upon the legal ground that the said letter is a separate and independent promise to pay for a lawful and valid consideration, the same is nevertheless connected with and grows out of the liability of the said Kendrick and Benjamin as sureties upon your orator's bond as guardians as hereinabove stated. That complainant alleges and states the truth to be that the action of his said son, John A. Henderson, under the circumstances hereinabove stated and set forth, with full knowledge all the time that his indebtedness to your orator for the value of the land, of the mercantile business, and of your orator's payments to him by the advances of cash as in the bill set forth. were equal to and exceeded any liability with your orator might be due on the said guardian's bond, is in fraud of the rights of your orator and of the said Benjamin and Kendrick, and that if he collects the judgment against Benjamin and Kendrick it will to that extent augment the legal and moral liability of your orator, and will thus indirectly force your orator to pay out large sums of money to which the said John A. Henderson has no legal, equitable, or moral right. That the said John A. Henderson, taking advantage of the circumstances as hereinabove detailed, and with knowledge that your orator owed him nothing, having allowed his said first suit to be prosecuted, notwithstanding his assurance to your orator and the said Benjamin and Kendrick that it would not be further prosecuted and would be dismissed, and having taken advantage of the fact that your orator and his codefendants in said suit lived in cities far distant from each other, that communication between them was difficult and expensive except by letter, and in that way unsatisfactory, has so manipulated the processes and procedure of the courts of law and taken the advantage of the ignorance of the true facts on the part of the said Benjamin and Kendrick as to work a positive and pronounced fraud upon your orator.

"Eighth. The premises considered, and your orator, being without remedy except by this his bill in a court of equity, prays:

"(a) That an accounting shall be taken and made under the supervision and direction of

this honorable court between your orator as guardian for the said John A. Henderson, and that it be ascertained what amount your orator owes or has owed to the said Henderson as said guardian, and that your orator shall be credited in said accounting with such payments or advances in money as it shall be found that your orator has made to the said John A. Henderson which are properly chargeable against him, an itemized account and statement of which your orator is willing and will produce and verify, and that the said John A. Henderson be charged with the price and value of the said store which he assumed and agreed to pay to your orator, and also with the reasonable value of said land, which he received through your orator and which he refused to reconvey and redeed to your orator as hereinabove set forth, and that a balance shall be struck, and a suitable decree rendered fixing and determining what amount, if any, shall be paid by your orator to the said John A. Henderson, or what amount, if any, shall be paid by the said John A. Henderson to your orator.

"(b) That a temporary injunction be issued restraining the said John A. Henderson from selling under execution aforesaid, to wit, that certain execution dated February 24, 1922, issuing out of the circuit court of Hillsborough county, Fla., in the said suit herein referred to as the second suit, to wit, that certain cause wherein John A. Henderson is plaintiff and W. H. Kendrick and G. N. Benjamin are defendants, the lands and property and every part and parcel thereof, of the said W. H. Kendrick and G. N. Benjamin, and that the said John A. Henderson be restrained and enjoined from collecting or attempting to collect said execution, and be restrained and enjoined from enforcing or attempting to enforce said execution, until the further order of this court, and that upon a final decree of this court, when it shall be made to appear that there is no indebtedness by your orator to the said defendant, John A. Henderson, or no further indebtedness when your orator shall have paid any amount which the court may find to be due, that said injunction be made permanent and that said judgment be canceled and declared null and void, as well as said execution.

"(c) Also, that the said W. H. Kendrick and G. N. Benjamin be enjoined and restrained from paying to the said John A. Henderson or the said sheriff said execution or any part thereof, or any moneys on account thereof.

"(d) Also, that the said suit herein described as the first suit, namely, that certain cause now pending in the circuit court of Hillsborough county, Fla., at law, wherein Sidney J. Catts, as Governor, for the use of John A. Henderson, is plaintiff, and your orator and the said Benjamin and Kendrick are defendants, to be enjoined, that is, that the said John A. Henderson be temporarily enjoined from further prosecuting same, and that on final hearing he be permanently enjoined from further prosecuting same."

General relief was also prayed.

By answer the defendants W. H. Kendrick and G. N. Benjamin averred facts consistent with those alleged in the bill of complaint, and joined in the prayers for relief.

Motions for temporary injunctions as

prayed were denied, and an appeal was taken.

It seems clear from the above extracts, considered with the allegations as stated at length in the bill of complaint, that an equity appears for an accounting between the guardian and his ward, and that appropriate decrees should be rendered for or against the guardian which will affect the real liability of his sureties, the defendants Benjamin and Kendrick; and to this end appropriate injunctions should restrain the enforcement of the judgment rendered in the law action against Kendrick and Benjamin that is connected with and grows out of their liability as sureties on the guardian's bond, until the entire controversy is adjudicated in this suit.

or of any state or territory within the United States or any foreign country, within seven years, when it appears that the defendant, or judgment debtor, has not been a resident of, nor within the jurisdiction of, the state of Florida for the period of seven years subsequent to the date of the judgment.

2. Limitation of actions 87 (3) Statute relative to limitations against persons out of the state held applicable to actions on foreign judgments, and to persons never before in the state; "return to the state;" "absence."

Section 2928, Revised General Statutes 1920, which provides that if when the cause of action shall accrue against a person he is out of the state the action may be commenced within the term herein limited after his return to the state, and if after the cause of action shall have accrued he depart from the

ings.

Reversed.

TAYLOR, C. J., and WHITFIELD, EL LIS, BROWNE, WEST, and TERRELL, JJ.,

concur.

W. H. KENDRICK et al., Plaintiffs in Error, v. John A. HENDERSON, Defendant in Error.

(Supreme Court of Florida, May 14, 1924. Rehearing Denied June 12, 1924.)

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Mabry, Reaves & Carlton and Lunsford & Blake, all of Tampa, for plaintiffs in error.

Shackleford & Shackleford and Shackleford & Parks, all of Tampa, for defendant in error.

PER CURIAM. The judgment herein is affirmed subject to the decree this day rendered in the case of Henderson v. Henderson et al., 100 South. 792.

It is so ordered.

TAYLOR, C. J., and WHITFIELD, ELLIS, BROWNE, WEST, and TERRELL, JJ., con

cur.

VAN DEREN v. LORY.

(Supreme Court of Florida, Division A. May 5, 1924.)

(Syllabus by the Court.) 1. Limitation of actions 87(3)—Action on foreign judgment held not barred when defendant not in state for seven years.

of the time limited for the commencement of the action, applies in an action upon a judgment obtained in another state. In those cases in which the judgment debtor, subsequent to the judgment, comes into the state, the words in the statute "return to the state" are equivalent in meaning to the words "come into the state"; and the words "absence" and "return" are not confined in their application to those persons who have once been inhabitants of the state but are equally applicable to those persons who have never before been in the state.

[Ed. Note.-For other definitions, see Words and Phrases,. First and Second Series, Absence-Absent.]

3. Limitation of actions 87 (3)-Seven-year statute does not run until courts can adjudicate between parties on particular cause.

Section 2939 and paragraph 4 of section 2928, Revised General Statutes 1920, are in pari materia and limit the running of the sevenyear statute until the time when the courts of

this state had power to adjudicate between the parties upon the particular cause of action. 4. Limitation of actions 2(1), 87 (3)-Rule that lex fori controls subject to statutory provisions relative to absent defendants.

The lex fori determines the time within which a cause of action shall be enforced; but the rule is subject to the statutory modification in Florida prescribed by paragraph 4 of section 2928, Revised General Statutes 1920. Whitfield, P. J., and Terrell, J., dissenting.

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by Frank C. Lory against F. O. Van Deren. Judgment for plaintiff, and defendant brings error. Affirmed.

Snedigar & Miller, of Miami, for plaintiff in error.

E. B. Kurtz, of Miami, for defendant in

error.

C. L. Brown, of Miami, for plaintiff in er

ror.

The policy, as read by the ordinary person, would seem, among other things, to insure

PER CURIAM. In this case the Chief Justice, Mr. Justice ELLIS, and Mr. Justice WEST are of the opinion that the judgment rendered by the trial court to which the writ of error is addressed should be affirmed, while Mr. Justice. WHITFIELD, Mr. Justice BROWNE, and Mr. Justice TERRELL are of opinion that said judgment should be reversed; and, there being no prospect of a change of judicial opinion, the judgment should be affirmed on the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South. 51; Pensacola Electric Co. v. Humphreys, 61 Fla. 389, 54 South. 452; Quigg, Chief of Police, v. Radel, 87 Fla. - 97 South. 380; and State ex rel. Amos v. Hamwey, 100 South. 796, decided at this term.

An order will be entered affirming the judgment herein.

All concur.

ELLIOTT v. BELT AUTOMOBILE ASS'N et al.

for injuries to persons or property accidentally inflicted by the owner, or by any member of his immediate family over 16 years of age. It is because the insurance company does not so regard its contract that the case is here.

Under the title "Liability" there is a provision

"against actual loss sustained by subscriber on account of legal liability imposed upon him on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon any person, while this contract is in force, through the ownership, maintenance or use of said automobile. The liability of this association is limited to not more than $5,000 for injury to, or death of, any one person, and, subject to the same limit for each person, limited to not more than $10,000 for any one accident involving injury to or death of more than one person."

In the rider attached to and made a part of the policy are these clauses:

damages on account of such happenings as are provided for by the terms of the two preceding paragraphs, where the loss sustained by subscriber as a result of the judgment, if rendered against the subscriber or other person or persons, would be covered by this policy.

"Costs. 4. In addition to the coverage granted above, the association will also pay the cost and expenses attendant upon the investigation, adjustment, and settlement of claims, and will reimburse subscriber or other person or persons covered for all costs taxed and paid by subscriber or other person or persons covered, in any legal proceedings defended by this association, and all interest accruing after entry of judgment upon such part thereof as shall not above limited, where the suit is appealed by or be in excess of the association's liability as with the consent of the association."

Action by M. Leo Elliott against the Belt Automobile Association and others. Judgment for defendants, and plaintiff brings error. Reversed.

On February 21st, during the life of the automobile, inflicted personal injuries on O. D. Knowles, who brought an action for damages against the plaintiff, and recovered a judgment for $3,500.

Shackleford & Shackleford, of Tampa, for defendants in error.

BROWNE, J. This is an action on an insurance policy issued by M. Leo Elliott, plaintiff in error, by the Belt Automobile Indemnity Association.

of record unpaid.