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(102 So.)

D. N Trotman, of De Funiak Springs, for G. B. SAWYERS, Trading under the Style of appellant. the G. B. Sawyers Company, Plaintiff in Er. ror, v. BOARD OF PUBLIC INSTRUCTION PER CURIAM. This cause having heretoFOR THE COUNTY OF PUTNAM, State of fore been submitted to the court upon the Florida, a Corporation, Defendant in Error. transcript of the record of the decree herein,

and briefs and argument of counsel for the re(Supreme Court of Florida, Division B. Oct. spective parties, and the record having been 17, 1924. Rehearing Denied Dec.

seen and inspected, and the court being now 13, 1924.)

advised of its judgment to be given in the Error to Circuit Court, Putnam County; s. premises, it seems to the court that there is

no error in the said decree. It is therefore J. Hilburn, Referee.

considered, ordered, and adjudged by the court Thos. B. Dowda and J. J. Canon, both of that the said decree of the circuit court be and Palatka, for plaintiff in error.

the same is hereby affirmed.
J. N. Blackwell and Walton & Dineen, all of
Palatka, for defendant in error.

WHITFIELD P. J., and WEST and TER

RELL, JJ., concur. PER CURIAM. In an action to recover $1,000 that accompanied a bid for bonds accepted on condition that the bonds be approved by a named attorney, it appears that the bonds were not approved by the attorney, yet judgment was STATE ex rel. J. N. ANDREWS, Plaintiff in by the referee rendered for the defendant, upon

Error, v. Christine CLOUD et al., Defend. the theory of fraud upon the part of the at

ants in Error. torney, who, upon examination of the tran- | (Supreme Court of Florida, Division B. . Oct. script of the proceedings, declined to approve

14, 1924.)
the bonds as having been legally issued.

No fraud or other matter was shown that Error to Court of Record, Escambia County;
would forfeit the deposit; therefore the judg. C. Moreno Jones, Judge.
ment is reversed.

Philip D. Beall, John M. Coe, and Forsyth
WHITFIELD, P. J., and WEST and TER- Caro, all of Pensacola, for plaintiff in error.
RELL, JJ., concur.

Carter & Yonge, of Pensacola, for defendants TAYLOR, C.J., and BROWNE, J., concur in in error. the opinion.

Watson & Pasco, of Pensacola, amici curiæ.

PER CURIAM. This cause having heretoJulia E. McCAULEY et al., Appellants, v. fore been submitted to the court upon the Janet K. BELL et al., Appellees. transcript of the record of the judgment here

in, and briefs and argument of counsel for the (Supreme Court of Florida, Division B. May respective parties, and the record having been 22, 1924. Rehearing Denied June 18, 1924.)

seen and inspected, and the court being now

advised of its judgment to be given in the Appeal fro Circuit Court, Franklin County; E. C. Love, Judge.

premises, it seems to the court that there is

no error in the said judgment It is therefore Carter & Carter, of Marianna, for appel- considered, ordered, and adjudged by the court lants.

that the said judgment of the court of record R. Don McLeod, Jr., of Apalachicola, and E. be and the same is hereby affirmed. Tillman Davis, of Tallahassee, for appellees.

WHITFIELD, P. J., and WEST and TER-
PER CURIAM, This cause having hereto- RELL, JJ., concur.
fore been submitted to the court upon the tran-
script of the record of the decree herein, and
briefs and argument of counsel for the re-
spective parties, and the record having been BOARD OF PUBLIC INSTRUCTION FOR
seen and inspected, and the court being now BRADFORD COUNTY, Appellant, v,
advised of its judgment to be given in the BANK OF STARKE, Appellee.
premises, it seems to the court that there is
Do error in the said decree. It is therefore (Supreme Court of Florida, Division B. Nov.
considered, ordered, and adjudged by the court

8, 1924.)
that the said decree of the circuit court be
and the same is hereby affirmed.

Appeal from Circuit Court, Bradford Coun

ty; A. V. Long, Judge.
WHITFIELD, P. J., and WEST and TER-

E. M. Johns, of Starke, for appellant.
RELL, JJ., concur.

D. E. Knight, of Starke, for appellee.

PER CURIAM. This cause having heretoWm. D. SHAW, Appellant, v. GENEVA MILL fore been submitted to the court upon the CO., Appellee.

transcript of the record of the order herein, (Supreme Court of Florida, Division B. Nov. and briefs and argument of counsel for the 8, 1914.)

respective parties, and the record having been

seen and inspected, and the court being now Appeal from Circuit Court, Walton County; advised of its judgment to be given in the A. G. Campbell, Judge.

premises, it seems to the court that there is no

error in the said order. It is therefore con- , to ascertain those facts, is frivolous, and propsidered, ordered, and adjudged by the court erly overruled. that the said order of the circuit court be and the same is hereby affirmed.

4. Indictment and information om 176-Exact

time of commission of offense charged in in

dictment held immaterial. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

That prosecuting witness fixed date of crime other than as set out in indictment was immaterial; proof that offense was committed any time within prescriptive period of one year be

fore indictment being sufficient. Eli C. WALKER, Appellant, v. Robert H. YOUNG et al., Appellees.

5. Criminal law e881(2)- Jury's verdict held

responsive to charge; "dangerous weapon;" (Supreme Court of Florida, Division B. Oct.

"death-dealing instrument.” 25, 1924.)

In prosecution for striking another with a Appeal from Circuit Court, St. Lucie Coun- dangerous weapon with intent to murder, verty; C. E. Chillingworth, Judge.

dict finding defendant "guilty of striking with

a death-dealing instrument with intent to kill" Elwyn Thomas, of Ft. Pierce, for appellant. was responsive to the charge, in view of Rev.

L. R. Baker and John Ziegler, both of West St. 8 791, as amended by Act No. 43 of 1890, · Palm Beach, for appellees.

and Act No. 44 of 1890; "death-dealing instru

ment” being a "dangerous weapon” within purPER CURIAM. This cause having hereto- view of the law. fore been submitted to the court upon the (Ed. Note. For other definitions, see Words transcript of the record of the order herein, and Phrases, First and Second Series, Dangerand briefs and argument of counsel for the re ous Weapon.) spective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the

Appeal from Twenty-Sixth Judicial Dispremises, it seems to the court that there is no

trict Court, Parish of Washington; Prentiss error in the said order. It is therefore con

B. Carter, Judge. sidered, ordered, and adjudged by the court Gordon Penton was convicted for willfully that the said order of the circuit court be and striking another with a dangerous weapon the same is hereby affirmed.

with intent to murder, and he appeals. Af;

firmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

O. H. Carter, of Franklinton, for appellant.

Percy Saint, Atty. Gen., J. Vol Brock, Dist.

Atty., of Franklinton, and Percy T. Ogden, (157 La.) No, 26756.

Asst. Dist. Atty., of Crowley, for the State.

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STATE v. PENTON.

OVERTON, J. Defendant was indicted (Supreme Court of Louisiana. Nov. 3, 1924.) with a dangerous weapon, to wit, a scantling,

for willfully striking one Arthur Breland (Syllatus by Editorial Staff.)

with intent to murder. When his case was 1. Criminal law e600(2)-Refusal of continu. called for trial, two of his witnesses, Josie ance for absence of witnesses held not errone- Planche and Leroy Talley, were absent, and

therefore they failed to answer to their Trial court was authorized to refuse con names when called. Thereupon defendant tinuance for absence of witnesses duly sum filed a motion for a continuance, setting moned, in view of Act No. 84 of 1894, where forth the absence of these witnesses, the mastate admitted that such witnesses, if present, teriality and importance of their evidence, would testify as claimed by defendant.

and that, if present, they would testify that 2. Criminal law Om603(2)-Motion for contin. they saw defendant, a few minutes after the

uance for absence of witnesses properly over. difficulty out of which the present charge ruled.

grows, near the prosecuting witness Breland, Motion for continuance for absence of wit with his coat cut; that there are no other nesses, which failed to allege all their names witnesses by whom he can establish that and the facts expected to be established by them, and made no showing of reasonable dili- fact; and that, if granted a continuance, he gence to ascertain facts and names, and did not can and will have these witnesses present at show insufficient time for preparation, was

the next jury term of court. He also alproperly overruled.

leges, as an additional reason why he should 3. Criminal law Om603(2)-Motion for contin. be granted a continuance, that there are oth

uance, not stating facts expected to be estab. er witnesses absent who would testify to lished, nor showing diligence, insufficient.

facts material to the issue in the case, Motion for continuance, which neither sets though he is unable to state in detail what out facts expected to be established by absent those facts are. He also alleges that he bewitnesses, nor shows exercise of due diligence lieves that one of the absent witnesses, Jul

ww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(102 So.) ius Swinson, is an important witness, thoughruling, and submits the bill to us without aris unable to state the facts in detail to which gument. The ruling made is correct, for the the witness would testify.

exact time charged in the bill of indictment When the motion was filed, the state ad-was not material. It sufficed to prove that mitted that, if the witnesses, Planche and the offense charged was committed at any Talley, were present, they would testify as time before the finding of the indictment, and set forth by defendant in his motion. The within the prescriptive period of one year trial judge overruled the motion, and defend prior to such finding. State v. Agudo, 5 La. :: ant excepted to the ruling. The admission | Ann. 185; State v. Riggio, 124 La. 614, 50 made by the state was read to the jury. So. 600; State v. Wichers, 149 La. 643, 89

(1-3] The witnesses, Planche and Talley, So. 883. See, also, State v. Edwards, 149 were duly summoned. Hence defendant was La. 679, 90 So. 21, and State v. Williams, granted legal process for obtaining his wit- 143 La. 424, 78 So. 662. nesses. In view, therefore, of the admission [5] After the case was submitted to the made by the state, the trial court was au- jury, they returned the following verdict, to thorized to refuse the continuance prayed wit: for, in so far as it was grounded on the ab

“We, the jury, find the accused guilty of sence of Planche and Talley. Act 84 of 1894; striking with a death-dealing instrument with State v. O'Neal, 136 La. 558, 67 So. 365 ; | the intent to kill." State v: Stewart, 117 La. 490, 41 So. 798; State v. Lee, 50 La. Ann. 10, 22 So. 954. Thereupon defendant filed a motion for a Nor do we think that the court erred in over new trial, in which he avers that the verruling the motion for a continuance, in so dict rendered should be set aside because it far as it is based on the absence of witnesses is not responsive to the charge preferred other than Planche and Talley. The motion against him. The charge, as we have seen, is even fails to allege the names of the remain- striking with a dangerous weapon with ining witnesses, who were absent, with the extent to murder, which is an offense denounced ception of one. It does not allege the facts, by section 791 of the Revised Statutes of or any of them, that could be established by 1870, as amended by Act 43 of 1890, and the remaining absent witnesses, if present, which includes the lesser offense of strikand while defendant seeks to relieve him- ing with a dangerous weapon with intent to self of the burden of setting out those facts kill, denounced by Act 44 of 1890. The jury by alleging his inability to give them in de evidently intended to find the defendant tail, yet he makes no showing whatever of guilty of the lesser offense, and the question the exercise of reasonable diligence to as is whether they actually did so find him; in certain what facts were within their knowl- other words, whether the verdict. rendered edge, nor to ascertain the names of those responds to the charge against him, which witnesses, whose names he did not know, nor charge includes the lesser offense of striking does he even pretend that he did not have with a dangerous weapon with intent to kill. sufficient time to prepare for trial. A mo- The defendant contends that it does not, betion for a continuance, which neither sets cause the jury have substituted the words out the facts expected to be established by "death-dealing instrument" for "dangerous absent witnesses, nor shows the exercise of weapon," which latter expression is used due diligence to ascertain those facts, is both in the charge and in the law, thereby frivolous, and therefore is properly over- finding him guilty of striking with a death. ruled.

dealing instrument, instead of with a danger[4] On the trial of the case, the prosecut- ous weapon, with intent to kill. However, we ing witness, Breland, fixed the date of the are not of the opinion that the verdict should crime charged as October 8, 1923. The in- be annulled because of the use of the words dictment sets out that the crime was com-death-dealing instrument" instead of the mitted September 23, 1923. Defendant there words “dangerous weapon." The verdict is upon objected to the introduction of any fur-clear and responsive. A death-dealing inther evidence from this witness, and moved strument, which is capable of being used to the court, because of the difference in date, strike another with, is a dangerous weapon to strike out the evidence already given by within the purview of the ldw him. The trial judge overruled the objection For the reasons assigned, the verdict and and the motion. Defendant excepted to the the sentence appealed from are affirmed.

(157 La.)

view. Judgments set aside, and judgment No. 26629.

for third opponent ordered. POSNER V. LITTLE PINE LUMBER Hakenyos & Scott, of Alexandria, for apCO. et al.

plicant.

Blackman & Overton, of Alexandria, op. In ro GEORGE C. VAUGHAN & SONS, Inc. posed. (Supreme Court of Louisiana. Nov. 3, 1924.)

By the WHOLE COURT. (Syllabus by Editorial Staff.) 1. Partnership w95 - Partner's sale of in- distribution of a fund in the hands of the

ROGERS, J. This is a contest over the terest in unliquidated partnership creates no sheriff of the parish of Rapides. vendor's lien. One partner's sale of his interest in un- ber of the partnership known as the Little

On February 4, 1920, J. D. Colbert, a memliquidated partnership is not sale of specific property or interest therein, and hence creates Pine Lumber Company, sold his entire undi. no vendor's lien.

vided interest in and to the partnership to

the remaining partners, L. R. Baker and J. 2. Partnership 264—Partner's sale of Inter. w. Stell. The consideration of this sale,

est to copartner does not dissolve and liquid which was by notarial act, was $1,700, of date partnership.

which amount $1,000 was paid partly in cash Partner's disposal of interest to copartners and partly in its equivalent, and for the balis not sale of interest in specific property, and does not operate as dissolution and liquidation ance of the purchase price the purchasers

executed two notes of $300 and $400 respecof partnership.

tively. The note of $300 was paid. Plaintiff 3. Partnership ww 95-Partner's sale of inter became the owner of the note for $400.

est to copartners held sale of unliquidated in. The notes evidencing the credit portion of terest in unliquidated partnership.

the said sale were identified by the notary ^ Partner's sale to copartners of interest in with the act of sale, which, among other partnership, owning property worth enough to stipulations, contained the following: secure loan of $36,000, for $1,700, and vendees' assumption of debts, held sale of unliquidated

"It is declared by the parties that this purinterest in unliquidated partnership, so that chase of Colbert covers and includes his internote evidencing deferred payment on purchase est in all of the property of the said partnerprice was not secured by vendor's lien on spe- ship, whether specifically described herein or cific articles or pieces of partnership property.

not.

"It is further stipulated by the parties that, 4. Partnership w236–Sale of interest to co. in further consideration of the sale by the

partner does not relieve seller of obligations vendor of his interest in saíd partnership, the to creditors,

said Baker and Stell assume all liabilities of Partner's sale of his interest to copartners | the Little Pine Lumber Company, and release does not relieve him of obligations to partner- the said Colbert from all responsibility thereship creditors.

for." 5. Partnership 95Payment of debts, after The real estate and the most valuable por

sale of interest to copartners, immaterial on tion of the. personal property owned by the question of creation of vendor's lien.

partnership was described in the act of sale, That partnership debts were paid, after which was recorded in the conveyance recpartner's sale of interest to copartners, from ords, but not in the mortgage records, of the proceeds of mortgages executed to creditor, is parish of Grant, where the property was sitimmaterial on question of creation of vendor's

uated. lien securing note for deferred palyment on purchase price; question of such lien vel non be- $400, brought suit against the makers to re

Plaintiff, as the owner of the note for ing determinable as of time of sale.

cover the amount thereof, and for the recog6. Partnership am 178-Debts must be paid be- nition and enforcement his vendor's lien and fore division of property by partners.

privilege on the “undivided one-third interAssets of partnership belong to no partner est of J D. Colbert in and to the partnership separately, but are common stock pledged for of the Little Pine Lumber Company, and partnership debts, which must be paid before particularly in and to the following describdivision of property by partners.

ed property" (here followed a description of

the property). Certiorari to Court of Appeal, Second Cir

Attached to the petition was defendant's cuit.

confession of judgment, waiver of citation, Action by Isaac Posner against the Little and legal delays for answering, and consent Pine Lumber Company and others, in which to the jurisdiction of the district court for George C. Vaughan & Sons, Inc., filed third the parish of Rapides. On the day the peopposition. Judgment for plaintiff was af- tition was filed judgment was rendered in firmed by the Court of Appeal, and third op- favor of plaintiff as prayed for. ponent applies for certiorari or writ of re Subsequently, George C. Vaughan & Sons,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*

(102 So.) Inc., claiming to hold a conventional mort, and liabilities, and showing the net share gage and a chattel mortgage upon the part- due each of the partners. It based its opinnership property, to secure an indebtedness ion that a liquidation had taken place "upon of $36,000, filed a third opposition, and, for conclusions," says the courtvarious reasons set forth in the opposition,

"Which we drew from facts which were adprayed that its mortgages be decreed to prime mitted, or else fully established by the record the vendor's privilege claimed by plaintiff, rather than from any direct evidence on the and that they be granted preference on the point." proceeds of the sale of the property. The district court rejected the demand of

And the court said further: the third opponent, and ordered the fund in "The real trouble we encountered was because the hands of the sheriff to be paid over to of the absence of positive evidence of what was the plaintiff. This judgment was affirmed done or intended to be done by the parties to by the Court of Appeal for the Second Cir. the sale of Colbert's interest." cuit, and the case, upon the application of third opponent, is now before us for review.

The act of sale, however, is unambiguous. In support of its opposition, third opponent The vendor therein, in express terms, sold is relying upon only two of the grounds al- his undivided interest in and to the partleged therein. These grounds are:

nership known as the “Little Pine Lumber First, that the deed from Colbert shows Company and consisting more particularly on its face that it is a sale of the undivided of the property which is then described. The interest in an unliquidated partnership,

deed, on its face, establishes the fact that which does not create, in law, a vendor's lien the partnership was unliquidated, because on specific articles of partnership property to the vendees therein assumed the payment of secure the deferred portion of the purchase the debts of the partnership. price of the sale of such interest; and

The Court of Appeal in its reasoning, by Second, that the said act of sale, never that there must have been a settlement

means of which it reached the conclusion having been recorded in the mortgage records of the parish of Grant, is ineffective to among the partners and a liquidation of the preserve a vendor's lien on the property de partnership affairs, uses the following lanscribed therein to the prejudice of opponent's

guage: rights as a mortgage creditor on said prop

Colbert and his two partners ownerty.

ed equal interests in the partnership, Colbert It is unnecessary for us to pass upon the sold his one-third interest to his copartners second ground, since, in our opinion, the first business. The net value of the property was

for $1,700, and they assumed the debts of the ground relied upon by the third opponent therefore $5,100. Now, the total value of the is sutficient to grant the relief sought in its property must have been largely in excess of opposition.

this last amount, because the day of the sale [1] The Court of Appeal, in the two opin- intervenors loaned Stell and Baker, Colbert's ions which it delivered in this case, one on vendees, $14,000 on the whole property, and a the original hearing and the other on rehear- few months later increased this loan by $22,ing, admits the correctness of the legal prin. 000. It was impossible for the partners to ar. ciple that the sale by one of the partners of rive at a net value which each owned in the his interest in an unliquidated partnership is property, unless they cast up accounts of as

sets and liabilities. not a sale of specific property or of any in- that the sale from Colbert to his two partners

In short, we think terest in specific property, and that, therefore, was in itself a liquidation and settlement of no vendor's lien can be created by such a the partnership." transaction. It holds, however, that the act of sale from Colbert to Baker and Stell evi. [4] If inferences are to be indulged in, denced a dissolution of the partnership and then we are confronted by another and pera liquidation of its affairs, and that the sale haps stronger inference than the one which by Colbert of his undivided one-third inter- influenced the Court of Appeal in reaching est in the partnership property was not the its conclusion. It is patent that Colbert sale of an unliquidated interest in an unliq. | would not for $1,700 have sold his interest uidated partnership.

in the partnership owning property, which [2] If the position assumed by the Court was of sufficient value to secure a loan of of Appeal be legally correct, then every time $36,000, unless the partnership was heavily one partner disposed of his interest in a involved in debt. These debts, as part of the partnership to his copartners it would con- consideration for the sale, were assumed by stitute a sale of an interest in specific prop- the vendees. The fact that the vendees were erty, and operate as a dissolution and liqui- willing to purchase the interest of their partdation of the partnership. Such is not the ner and assume the debts indicates that for law.

reasons of their own they were desirous of [3] The Court of Appeal concedes that having their partner retire from the firm. there is no evidence in the record showing Certainly it was not necessary for Colbert that the partners made up a statement of the to sell his interest in order that the partnerpartnership affairs, setting forth its assets ship might borrow the money from the third

102 50.-2

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