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G. B. SAWYERS, Trading under the Style of the G. B. Sawyers Company, Plaintiff in Error, v. BOARD OF PUBLIC INSTRUCTION FOR THE COUNTY OF PUTNAM, State of Florida, a Corporation, Defendant in Error. (Supreme Court of Florida, Division B. Oct. 17, 1924. Rehearing Denied Dec.

13, 1924.)

D. N Trotman, of De Funiak Springs, for appellant.

PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now 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

J. Hilburn, Referee.

It is therefore no error in the said decree. 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 the same is hereby affirmed. Palatka, for plaintiff in error.

J. N. Blackwell and Walton & Dineen, all of Palatka, for defendant in error.

WHITFIELD P. J., and WEST and TERRELL, 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 by the referee rendered for the defendant, upon the theory of fraud upon the part of the attorney, who, upon examination of the tran-(Supreme Court of Florida, Division B. Oct. script of the proceedings, declined to approve the bonds as having been legally issued.

No fraud or other matter was shown that would forfeit the deposit; therefore the judgment is reversed.

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

TAYLOR, C.J., and BROWNE, J., concur in the opinion.

STATE ex rel. J. N. ANDREWS, Plaintiff in Error, v. Christine CLOUD et al., Defendants in Error,

14, 1924.)

Error to Court of Record, Escambia County; C. Moreno Jones, Judge.

Philip D. Beall, John M. Coe, and Forsyth Caro, all of Pensacola, for plaintiff in error. Carter & Yonge, of Pensacola, for defendants in error.

Watson & Pasco, of Pensacola, amici curiæ.

PER CURIAM. This cause having hereto

Julia E. McCAULEY et al., Appellants, v. fore been submitted to the court upon the Janet K. BELL et al., Appellees.

(Supreme Court of Florida, Division B. May 22, 1924. Rehearing Denied June 18, 1924.) Appeal from Circuit Court, Franklin County; E. C. Love, Judge.

Carter & Carter, of Marianna, for appel

lants.

R. Don McLeod, Jr., of Apalachicola, and E, Tillman Davis, of Tallahassee, for appellees.

PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed.

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

transcript of the record of the judgment here-
in, and briefs and argument of counsel for the
respective parties, and the record having been
seen and inspected, and the court being now
advised of its judgment to be given in the
premises, it seems to the court that there is
It is therefore
no error in the said judgment
considered, ordered, and adjudged by the court
that the said judgment of the court of record
be and the same is hereby affirmed.

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

BOARD OF PUBLIC INSTRUCTION FOR
BRADFORD COUNTY, Appellant, v.
BANK OF STARKE, Appellee.

(Supreme Court of Florida, Division B. Nov.
8, 1924.)

Appeal from Circuit Court, Bradford County; A. V. Long, Judge.

E. M. Johns, of Starke, for appellant.
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.

(Supreme Court of Florida, Division B. Nov. 8, 1914.)

transcript of the record of the order herein, and briefs and argument of counsel for the 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.

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

Eli C. WALKER, Appellant, v. Robert H. YOUNG et al., Appellees.

(Supreme Court of Florida, Division B. Oct. 25, 1924.)

4. Indictment and information

176-Exact time of commission of offense charged in indictment held immaterial.

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 before indictment being sufficient.

5. Criminal law 881 (2)—Jury's verdict held responsive to charge; "dangerous weapon;" "death-dealing instrument."

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.

Elwyn Thomas, of Ft. Pierce, for appellant. L. R. Baker and John Ziegler, both of West Palm Beach, for appellees.

PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the order herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said order. It is therefore considered, ordered, and adjudged by the court that the said order of the circuit court be and the same is hereby affirmed.

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

(157 La.)

No. 26756.

STATE v. PENTON.

dict finding defendant "guilty of striking with a death-dealing instrument with intent to kill" was responsive to the charge, in view of Rev. St. § 791, as amended by Act No. 43 of 1890, and Act No. 44 of 1890; "death-dealing instrument" being a "dangerous weapon" within purview of the law.

[Ed. Note.-For other definitions, see Words 'and Phrases, First and Second Series, Dangerous Weapon.]

trict Court, Parish of Washington; Prentiss Appeal from Twenty-Sixth Judicial DisB. Carter, Judge.

Gordon Penton was convicted for willfully striking another with a dangerous weapon with intent to murder, and he appeals. Af firmed.

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

Percy Saint, Atty. Gen., J. Vol Brock, Dist. Atty., of Franklinton, and Percy T. Ogden, Asst. Dist. Atty., of Crowley, for the State.

OVERTON, J. Defendant was indicted for willfully striking one Arthur Breland

(Supreme Court of Louisiana. Nov. 3, 1924.) with a dangerous weapon, to wit, a scantling,

(Syllabus by Editorial Staff.)

1. Criminal law 600 (2)-Refusal of continuance for absence of witnesses held not errone

ous.

Trial court was authorized to refuse continuance for absence of witnesses duly summoned, in view of Act No. 84 of 1894, where state admitted that such witnesses, if present, would testify as claimed by defendant.

2. Criminal law 603 (2)-Motion for continuance for absence of witnesses properly overruled.

Motion for continuance for absence of witnesses, which failed to allege all their names and the facts expected to be established by them, and made no showing of reasonable diligence to ascertain facts and names, and did not show insufficient time for preparation, was properly overruled.

with intent to murder. When his case was called for trial, two of his witnesses, Josie Planche and Leroy Talley, were absent, and therefore they failed to answer to their names when called. Thereupon defendant filed a motion for a continuance, setting forth the absence of these witnesses, the materiality and importance of their evidence, and that, if present, they would testify that they saw defendant, a few minutes after the difficulty out of which the present charge grows, near the prosecuting witness Breland, with his coat cut; that there are no other witnesses by whom he can establish that fact; and that, if granted a continuance, he can and will have these witnesses present at the next jury term of court. He also alleges, as an additional reason why he should be granted a continuance, that there are oth

3. Criminal law 603 (2)-Motion for continuance, not stating facts expected to be estab-er witnesses absent who would testify to lished, nor showing diligence, insufficient. Motion for continuance, which neither sets out facts expected to be established by absent witnesses, nor shows exercise of due diligence

facts material to the issue in the case, though he is unable to state in detail what those facts are. He also alleges that he believes that one of the absent witnesses, Jul

(102 So.)

ius Swinson, is an important witness, though ruling, and submits the bill to us without aris unable to state the facts in detail to which the witness would testify.

When the motion was filed, the state admitted that, if the witnesses, Planche and Talley, were present, they would testify as set forth by defendant in his motion. The trial judge overruled the motion, and defendant excepted to the ruling. The admission made by the state was read to the jury. [1-3] The witnesses, Planche and Talley, were duly summoned. Hence defendant was granted legal process for obtaining his witnesses. In view, therefore, of the admission made by the state, the trial court was authorized to refuse the continuance prayed for, in so far as it was grounded on the absence of Planche and Talley. Act 84 of 1894; State v. O'Neal, 136 La. 558, 67 So. 365; State v. Stewart, 117 La. 490, 41 So. 798; State v. Lee, 50 La. Ann. 10, 22 So. 954. Nor do we think that the court erred in overruling the motion for a continuance, in so far as it is based on the absence of witnesses other than Planche and Talley. The motion even fails to allege the names of the remaining witnesses, who were absent, with the exception of one. It does not allege the facts, or any of them, that could be established by the remaining absent witnesses, if present, and while defendant seeks to relieve himself of the burden of setting out those facts by alleging his inability to give them in detail, yet he makes no showing whatever of the exercise of reasonable diligence to ascertain what facts were within their knowledge, nor to ascertain the names of those witnesses whose names he did not know, nor does he even pretend that he did not have sufficient time to prepare for trial. A motion for a continuance, which neither sets out the facts expected to be established by absent witnesses, nor shows the, exercise of due diligence to ascertain those facts, is frivolous, and therefore is properly overruled.

gument. The ruling made is correct, for the exact time charged in the bill of indictment was not material. It sufficed to prove that the offense charged was committed at any time before the finding of the indictment, and within the prescriptive period of one year prior to such finding. State v. Agudo, 5 La. Ann. 185; State v. Riggio, 124 La. 614, 50 So. 600; State v. Wichers, 149 La. 643, 89 So. 883. See, also, State v. Edwards, 149 La. 679, 90 So. 21, and State v. Williams, 143 La. 424, 78 So. 662.

[5] After the case was submitted to the jury, they returned the following verdict, to wit:

"We, the jury, find the accused guilty of striking with a death-dealing instrument with the intent to kill."

Thereupon defendant filed a motion for a new trial, in which he avers that the verdict rendered should be set aside because it is not responsive to the charge preferred against him. The charge, as we have seen, is striking with a dangerous weapon with intent to murder, which is an offense denounced by section 791 of the Revised Statutes of 1870, as amended by Act 43 of 1890, and which includes the lesser offense of striking with a dangerous weapon with intent to kill, denounced by Act 44 of 1890. The jury evidently intended to find the defendant guilty of the lesser offense, and the question is whether they actually did so, find him; in other words, whether the verdict rendered responds to the charge against him, which charge includes the lesser offense of striking with a dangerous weapon with intent to kill. The defendant contends that it does not, because the jury have substituted the words "death-dealing instrument" for "dangerous weapon," which latter expression is used both in the charge and in the law, thereby finding him guilty of striking with a deathdealing instrument, instead of with a danger

are not of the opinion that the verdict should be annulled because of the use of the words "death-dealing instrument" instead of the words "dangerous weapon." The verdict is clear and responsive. A death-dealing instrument, which is capable of being used to strike another with, is a dangerous weapon within the purview of the law

[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 crime charged as October 8, 1923. The indictment sets out that the crime was committed September 23, 1923. Defendant thereupon objected to the introduction of any further evidence from this witness, and moved the court, because of the difference in date, to strike out the evidence already given by him. The trial judge overruled the objection and the motion. Defendant excepted to the

For the reasons assigned, the verdict and the sentence appealed from are affirmed.

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2. Partnership 264-Partner's sale of interest to copartner does not dissolve and liquidate partnership.

Partner's disposal of interest to copartners is not sale of interest in specific property, and does not operate as dissolution and liquidation of partnership.

3. Partnership 95-Partner's sale of interest to copartners held sale of unliquidated interest in unliquidated partnership.

Partner's sale to copartners of interest in partnership, owning property worth enough to secure loan of $36,000, for $1,700, and vendees' assumption of debts, held sale of unliquidated interest in unliquidated partnership, so that note evidencing deferred payment on purchase price was not secured by vendor's lien on specific articles or pieces of partnership property. 4. Partnership 236-Sale of interest to copartner does not relieve seller of obligations to creditors.

Partner's sale of his interest to copartners does not relieve him of obligations to partnership creditors.

5. Partnership 95-Payment of debts, after sale of interest to copartners, immaterial on question of creation of vendor's lien.

That partnership debts were paid, after partner's sale of interest to copartners, from proceeds of mortgages executed to creditor, is immaterial on question of creation of vendor's lien securing note for deferred payment on purchase price; question of such lien vel non being determinable as of time of sale.

view. Judgments set aside, and judgment for third opponent ordered.

Hakenyos & Scott, of Alexandria, for applicant.

Blackman & Overton, of Alexandria, opposed.

By the WHOLE COURT.

distribution of a fund in the hands of the ROGERS, J. This is a contest over the sheriff of the parish of Rapides.

On February 4, 1920, J. D. Colbert, a member of the partnership known as the Little Pine Lumber Company, sold his entire undivided interest in and to the partnership to the remaining partners, L. R. Baker and J. W. Stell. The consideration of this sale, which was by notarial act, was $1,700, of which amount $1,000 was paid partly in cash and partly in its equivalent, and for the balexecuted two notes of $300 and $400 respecance of the purchase price the purchasers tively. The note of $300 was paid. Plaintiff became the owner of the note for $400.

The notes evidencing the credit portion of the said sale were identified by the notary with the act of sale, which, among other stipulations, contained the following:

"It is declared by the parties that this purchase of Colbert covers and includes his interest in all of the property of the said partnership, whether specifically described herein or

not.

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Plaintiff, as the owner of the note for $400, brought suit against the makers to recover the amount thereof, and for the recog

6. Partnership 178-Debts must be paid be- nition and enforcement his vendor's lien and fore division of property by partners.

Assets of partnership belong to no partner separately, but are common stock pledged for partnership debts, which must be paid before division of property by partners.

Certiorari to Court of Appeal, Second Cir

cuit.

Action by Isaac Posner against the Little Pine Lumber Company and others, in which George C. Vaughan & Sons, Inc., filed third opposition. Judgment for plaintiff was affirmed by the Court of Appeal, and third opponent applies for certiorari or writ of re

privilege on the "undivided one-third interest of J D. Colbert in and to the partnership of the Little Pine Lumber Company, and particularly in and to the following described property" (here followed a description of the property).

Attached to the petition was defendant's confession of judgment, waiver of citation, and legal delays for answering, and consent to the jurisdiction of the district court for the parish of Rapides. On the day the petition was filed judgment was rendered in favor of plaintiff as prayed for.

Subsequently, George C. Vaughan & Sons,

(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, prayed that its mortgages be decreed to prime the vendor's privilege claimed by plaintiff, and that they be granted preference on the proceeds of the sale of the property.

The district court rejected the demand of the third opponent, and ordered the fund in the hands of the sheriff to be paid over to the plaintiff. This judgment was affirmed by the Court of Appeal for the Second Circuit, and the case, upon the application of third opponent, is now before us for review. In support of its opposition, third opponent is relying upon only two of the grounds alleged therein. These grounds are:

First, that the deed from Colbert shows on its face that it is a sale of the undivided interest in an unliquidated partnership, which does not create, in law, a vendor's lien on specific articles of partnership property to secure the deferred portion of the purchase price of the sale of such interest; and

Second, that the said act of sale, never having been recorded in the mortgage records of the parish of Grant, is ineffective to preserve a vendor's lien on the property described therein to the prejudice of opponent's rights as a mortgage creditor on said property.

It is unnecessary for us to pass upon the second ground, since, in our opinion, the first ground relied upon by the third opponent is sufficient to grant the relief sought in its opposition.

[1] The Court of Appeal, in the two opinions which it delivered in this case, one on the original hearing and the other on rehearing, admits the correctness of the legal principle that the sale by one of the partners of his interest in an unliquidated partnership is not a sale of specific property or of any interest in specific property, and that, therefore, no vendor's lien can be created by such a transaction. It holds, however, that the act of sale from Colbert to Baker and Stell evidenced a dissolution of the partnership and a liquidation of its affairs, and that the sale by Colbert of his undivided one-third interest in the partnership property was not the sale of an unliquidated interest in an unliquidated partnership.

[2] If the position assumed by the Court of Appeal be legally correct, then every time one partner disposed of his interest in a partnership to his copartners it would constitute a sale of an interest in specific property, and operate as à dissolution and liquidation of the partnership. Such is not the law.

[3] The Court of Appeal concedes that there is no evidence in the record showing that the partners made up a statement of the partnership affairs, setting forth its assets 102 SO.-2

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"Which we drew from facts which were admitted, or else fully established by the record rather than from any direct evidence on the point."

And the court said further:

"The real trouble we encountered was because of the absence of positive evidence of what was done or intended to be done by the parties to the sale of Colbert's interest."

The act of sale, however, is unambiguous. The vendor therein, in express terms, sold his undivided interest in and to the partnership known as the "Little Pine Lumber Company" and consisting more particularly of the property which is then described. The deed, on its face, establishes the fact that the partnership was unliquidated, because the vendees therein assumed the payment of the debts of the partnership.

The Court of Appeal in its reasoning, by means of which it reached the conclusion that there must have been a settlement

among the partners and a liquidation of the partnership affairs, uses the following lan

guage:

Colbert and his two partners owned equal interests in the partnership, Colbert sold his one-third interest to his copartners business. The net value of the property was for $1,700, and they assumed the debts of the therefore $5,100. Now, the total value of the property must have been largely in excess of this last amount, because the day of the sale intervenors loaned Stell and Baker, Colbert's vendees, $14,000 on the whole property, and a few months later increased this loan by $22,000. It was impossible for the partners to arrive at a net value which each owned in the property, unless they cast up accounts of assets and liabilities. * In short, we think that the sale from Colbert to his two partners was in itself a liquidation and settlement of the partnership."

[4] If inferences are to be indulged in, then we are confronted by another and perhaps stronger inference than the one which influenced the Court of Appeal in reaching its conclusion. It is patent that Colbert would not for $1,700 have sold his interest in the partnership owning property, which was of sufficient value to secure a loan of $36,000, unless the partnership was heavily involved in debt. These debts, as part of the consideration for the sale, were assumed by the vendees. The fact that the vendees were willing to purchase the interest of their partner and assume the debts indicates that for reasons of their own they were desirous of having their partner retire from the firm. Certainly it was not necessary for Colbert to sell his interest in order that the partnership might borrow the money from the third

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