South v.), and there is nothing in the decision in Allen v. Lewis, 38 Fla. 115, 20 South. 821, inconsistent with this view, as is contended by plaintiff in error. Before considering in detail the other assignments of error, it will be proper to say that, according to the evidence given in the abstract, plaintiff failed to show any title in the original plaintiff, George Burt, or in herself, to any part of the lands sued for. The abstract states that plaintiff proved title back to A. D. 1852 from grantors then in possession, claiming to own in fee by certain deeds, which are not set forth in the abstract. The descriptions of lands in these deeds as given in the abstract do not purport to include the lands in dispute, nor is there any testimony which tends to show that these descriptions embrace the lands in controversy or any of them. The first deed mentioned is one from Burt, Reid, and Carr to Isaac H. Bronson. It is inferentially stated that this deed conveyed nearly all of the "Palatka tract" or "Brush grant," the whole of which is now embraced in the town of Palatka, but there is nothing to show that the lots sued for are embraced in this description. The next deed mentioned is one from Isaac H. Bronson to James Burt, which, according to the abstract, conveys every part of the estate, lands, and lots described in the deed from Burt, Reid, and Carr to Bronson, reserving, however, what Bronson had sold previously to May 15, 1855; also the homestead (Sunnyside) of said Bronson, and 28 several lots set aside to the wife of Bronson, and certain water lots, and subject to all contracts of sale made by Bronson prior to May 15, 1855. The abstract states that three separate schedules, designating 121 several lots or blocks as either sold, reserved, or bargained, were attached to this deed, but such schedules are not given in the abstract. The next deed mentioned is from James Burt to George Burt, dated August 3, 1858; and the abstract states that it conveys all the lots and blocks of the Palatka tract described in the schedule attached, and designated on the map of Palatka and the plat of the Palatka tract; also all contracts for sale as in an attached schedule to be fulfilled by the grantee. The schedules attached, it is stated. describe 58 several lots or blocks,-being nearly the whole of Palatka as platted, but there is nothing to show that this deed embraces the lands in controversy. It is stated that a map of the city of Palatka was filed in evidence, but the map is not included in the abstract. It will thus be seen that it is not made to appear that the deeds relied upon purported to convey the lots in controversy. They may all have been excepted or reserved from the conveyances in the schedules attached, and, indeed, may not have been mentioned or referred to in the deeds at all. There is nothing to show that plaintiff or George Burt was ever in possession of the lots in controversy; and even though we concede that the evidence shows that Burt, Reid, and Carr, or Bronson or James Burt, were in possession claiming the same, this cannot benefit plaintiff, in the absence of proof that these identical lots were included in the deed from James to George Burt. The plaintiff failed to prove title or right of possession to any part of the lands sued for. Bearing these facts in mind, we will proceed to consider the other assignments of error. The eighth has been disposed of by what has been said in relation to the effect of the evidence, except the last ground of the motion for a new trial, which will necessarily be disposed of in considering the third assignment of error. The third assignment of error complains of the action of the court in permitting the original second plea to be withdrawn during the trial. There can be no doubt that the court had power, in its discretion, to permit an amendment of the pleadings by withdrawing a plea, even during the trial, under the statute hereinafter referred to. This power is not denied by the plaintiff in error, but she contends that the court abused its discretion in this instance, to her injury, because, as she alleges, the plea withdrawn was an admission of record that defendant had never been in possession of the lands sued for, and would estop it from claiming title by adverse possession to any part of such lands, and that the court, by permitting the withdrawal of the plea, deprived her of the benefit of this estoppel by the record. Even if this contention be sound, it does not follow that the ruling complained of will avail to reverse this case. That it would be clearly an error without injury is apparent when we remember that plaintiff showed no title whatever to, or prior possession of, the property in controversy; and therefore the verdict must necessarily be for defendant, without reference to the question of adverse possession, upon the familiar principle that a plaintiff in ejectment must recover upon the strength of his own title, and that he cannot recover, even as against one without title, unless he shows title or prior possession. Under the facts of this case, there is no reversible error in the ruling here complained of. The fourth and fifth assignments of error may be considered together. They complain of the ruling permitting the amended plea to be filed after the verdict. Section 1042, Rev. St., provides that "upon application of any party desiring amendment the courts of this state shall at all times amend all defects and errors in any pleading or proceeding in civil causes, whether there is anything to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments shall be made with or without costs, and upon such terms as the court, ing the real facts, as it afterwards did by may deem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for." This section has been several times before this court for consideration (Robinson v. Hartridge, 13 Fla. 501; Smith v. Westcott, 34 Fla. 430, 16 South. 332), and in the last case it is said, "Our trial courts are clothed with a very broad discretion in the matter of allowing amendments of the pleadings in civil causes, and unless there is a very gross and flagrant abuse of the discretion, this court will not interfere with its exercise." So far as we have been able to ascertain, no case permitting amendment of pleadings after verdict has ever been before this court; but the authorities quite uniformly sustain the proposition that, under statutes like ours, such amendments may be allowed in furtherance of justice, and various illustrations of such amendments may be seen by consulting the following cases: Peaslee v. Dudley, 63 N. H. 220; Morse v. Whitcher, 64 N. H. 591, 15 Atl. 207; Davis v. Railway Co., 83 Iowa, 744, 49 N. W. 77; Tremaine v. Hitchcock, 23 Wall. 518, 23 L. Ed. 97; Caldwell v. Meshew, 53 Ark. 263, 13 S. W. 761; Floyd v. Woods, 4 Yerg. 165; Price v. Transportation Co., 31 N. J. Law, 229; Independent Order v. Paine, 122 Ill. 625, 14 N. E. 42; Dougan v. Turner, 51 Minn. 330, 53 N. W. 650. In Metcalfe v. McCutchen, 60 Miss. 145, and Ball v. Railway Co., 71 Iowa, 306, 32 N. W. 354, misdescriptions in the lands sued for were held to be properly corrected by amendments after verdict, even though the corrected descriptions embraced land entirely different from that originally sued for. See, also, Hinman v. Booth, 21 Wend. 267; Zeilin v. Rogers (C. C.) 21 Fed. 103. Without undertaking to lay down a general rule applicable to all amendments after verdict, we think there is no doubt that the power exists, though it ought to be more cautiously exercised in such cases than in cases where the application is made before verdict, and where the amendment makes a new issue, which has not been submitted by the parties to the jury on the trial, a new trial ought ordinarily to be granted; and if it did not clearly appear in this case that the plaintiff in error was not only not injured by the amendment, but that she was actually benefited thereby, we would reverse the judgment and direct a new trial in this instance. The plaintiff chose to sue the defendant for the whole of certain blocks of land containing 25 acres, though it is apparent from the evidence as given in the abstract that defendant claimed no title to or possession of any part of the land sued for, except a strip covered by its right of way through the lands. The defendant, instead of plead the amended plea, pleaded the general issue, "Not guilty," along with a plea denying possession of any of the lands; and these pleas were applicable to all the lands sued for. Upon the trial the plea denying possession was withdrawn, so that the only issue submitted to the jury was framed upon the plea of not guilty, and to this issue the verdict of the jury responded in defendant's favor. As we have seen, the verdict was, according to the testimony exhibited to us by the abstract, correct, and entitled the defendant to a judgment in its favor, which would have been applicable to all the lands embraced in the declaration. As the defendant really claimed title to and possession of the strip covered by its right of way only, it sought after this verdict to put the pleadings in such shape that the judgment to be entered in its favor would operate as an estoppel or be available as res judicata against the plaintiff upon the question of title to the strip really claimed by it only, and the court permitted this to be done. The judgment which could rightfully have been entered upon the verdict would have operated as an estoppel upon the title to all the land sued for, while the judgment entered after the amendment was permitted operates as an estoppel upon the title to only that portion of the property described in the plea as so much of the blocks of land described in the declaration as is covered in each block by defendant's railway tracks and ditches as laid; and as to the other property the judgment cannot operate as an adjudication of title, but only that defendant was not in possession as alleged in the plea. The effect of filing the amended plea, under the circumstances, was to withdraw so much of the plea of not guilty as applied to those portions of the land sued for not specifically claimed by defendant in the amended plea. While the amended plea created a new issue as to the property not covered by the railway tracks and ditches as laid, it did not as to that particular part of the land. The effect of the amendment was to change the character of the judgment to which defendant was entitled to one more favorable to the plaintiff; and, as she showed no right on the trial to recover anything, we do not see that she has a right to complain that the court permitted the defendant to voluntarily relinquish the right to have entered a judg ment which would have been more unfavor able to her than the one actually entered. Under these circumstances, it seems to the court that plaintiff was not injured by the amendment; that the amendment did not necessitate the granting a new trial, as it simply effected a voluntary relinquishment on the part of defendant of a portion of the fruits of its victory, and, in truth, simply put the defendant's plea in such form as to exhibit the real matter in controversy between the parties as understood by them and the court and jury at the trial. The judgment of the circuit court is affirmed. DENMARK v. STATE. (Supreme Court of Florida. March 19, 1901.) CRIMINAL LAW-GRAND JUROR AS TRIAL JUROR-WAIVING CHALLENGE-SEAL ING CHARGES. 1. The inhibition placed by section 2851, Rev. St., upon the serving of a grand juror as a member of the trial jury to try an indictment found by him as such grand juror, is clearly and expressly made conditional upon a challenge being interposed by the defendant for that cause. The effect of the statute is not absolutely to disqualify a grand juror from serving on a trial jury to try indictments found by such grand juror, but makes it only a ground of challenge for cause, which challenge the defendant may waive or not, as he sees proper. By accepting the juror without exercising this right of challenge given him by the statute, the defendant waives such right, and it is too late after verdict to claim the benefit of it. It is the right and duty of defendants in criminal trials to discover on the voir dire examination of talesmen offered as trial jurors disqualifications in, and grounds of challenge for cause to, such talesmen; and if they fail so to do, they cannot, after verdict, avail themselves of their ignorance of the existence of such grounds of challenge. 2. Since the adoption of our Revised Statutes in 1892, the formality of sealing charges by the trial judge is no longer required. (Syllabus by the Court.) Error to circuit court, Duval county; Rhydon M. Call, Judge. Aaron Denmark was convicted of murder, and brings error. Affirmed. Chas. B. Peeler, for plaintiff in error. William B. Lamar, Atty. Gen., for the State. TAYLOR, C. J. The plaintiff in error was indicted on November 22, 1893, in the circuit court of Duval county, for murder in the first degree. On July 6, 1900, he was arraigned, and on July 11, 1900, he was tried and convicted of murder in the first degree, and on July 13, 1900, was sentenced to death, and from this judgment takes writ of error. The first assignment of error is that the court erred in passing judgment upon the defendant, because the indictment is insufficient, in law, form, and substance, upon which to base a judgment. We might disregard this assignment on the ground that it has been abandoned here without argument, but, in favorem vitæ, we have examined the Indictment upon which the trial was had, and find no defect therein. The second assignment of error is the denial of the motion for new trial. The grounds of the motion for new trial are: "(1) That the verdict is not supported by the evidence. "(2) That the verdict is contrary to the law. (3) That the verdict is contrary to the law as charged by the court, and the evidence produced on the stand. "(4) That one of the jurors in this cause, to wit, W. C. O'Neil, was member of the grand jury which found this indictment in this court at the fall term for the year A. D. 1893." As to the first three grounds of this motion, without rehearsing the evidence it is sufficient for us to say that we have carefully considered the evidence, and find it to be amply supportive of the verdict found, from the standpoint of both law and fact. In support of the fourth ground of the motion, it was shown by affidavits, and from copies of the minute entries of the circuit court for the November term, 1893, that the juror W. C. O'Neil who sat upon the trial jury was also a member of the grand jury that found the indictment; and it was further shown that neither the prisoner nor his counsel knew of such fact until after the verdict, but immediately upon the discharge of the jury the prisoner's counsel asked the juror W. C. O'Neil if he was not on the grand jury that found the bill, and the juror promptly replied that he was. Section 2851 of our Revised Statutes provides as follows: "No member of a grand jury which finds a bill of indictment shall be put upon a jury for the trial of that indictment, if challenged for that cause by the defendant." In the case of Gavin v. State (decided here at the last term) 29 South. 405, it was said of this statute: "The inhibition here placed upon the serving of a grand juror as a member of the trial jury to try an indictment found by him as such grand juror is clearly and expressly made conditional upon a challenge being interposed by the defendant for that cause. The effect of the statute is not absolutely to disqualify a grand juror from serving on a trial jury to try indictments found by such grand juror, but makes it only a ground of challenge for cause, which challenge the defendant may waive or not as he sees proper. By accepting the juror without exercising this right of challenge given him by the statute, the defendant waived such right, and it was too late after verdict to claim the benefit of it." The ignorance of the fact by the defendant that the juror was a member of the indicting grand jury cannot excuse his failure to exercise his right of challenge. It appears, from the promptness with which the juror informed his counsel of the fact on the inquiry made after the verdict, that, had the defendant made the same inquiry of the juror while on the voir dire, the fact would then have been disclosed to him; and no reason is shown why such inquiry was not made of the juror on the voir dire,a proceeding the purpose of which is to disclose disqualifications in, and grounds of challenge to, talesmen proposed for jurors. A brief examination of the minutes of the court for the term at which the indictment was found, that were there present and accessible, would likewise have disclosed the fact. Under the circumstances, the defendant must be held to have waived his right of challenge to this juror, and that the objection to the juror comes too late after verdict, either as ground of a motion for new trial or in arrest of judgment. What has been said disposes, also, of the third assignment of error, based upon the denial of the defendant's motion in arrest of judgment, the grounds of which were: "(1) That the indictment is insufficient, in law, form, and substance, upon which to base a judgment. "(2) Because one of the jurors in this case, to wit, W. C. O'Neil, was a member of the grand jury that found the indictment in this court at the fall term for the year A. D. 1893." The fourth assignment of error is that the court failed to seal the instructions given to the jury. Since the adoption of our Revised Statutes in 1892, the charges of the court to juries are no longer required to be sealed by the judge. The law now only requires them to be in writing, and signed by the judge, and filed as part of the record in the case. Sections 1091, 2920, Rev. St.; chap TAYLOR, C. J. On the 8th day of November, 1892, the defendants in error filed their petition in the circuit court of Jackson county against the plaintiffs in error as follows: "In the Circuit Court of Jackson County, Florida. Barney Cavanaugh Hardware Co., a corporation under the laws of Alabama, vs. Lewis & Bro.; T. G. Bush & Co., a mercantile firm composed of T. G. Bush, J. S. Knight, and N. F. Neville, vs. Lewis & Bro.; Lowenstein Bros., a mercantile firm com posed of Marcus Lowenstein and Louis Lowenstein, vs. Lewis & Bro.; The Standard Guano & Chemical Manufacturing Company, a corporation under the laws of Louisiana, vs. Lewis & Bro., a mercantile firm composed of H. H. Lewis and Wm. A. Lewis, of Jackson Co., Fla. Original Suit Brought by Attachment. "To the Hon. W. D. Barnes, Judge of said Circuit: Your petitioners Lewis & Bro., a mercantile firm composed of H. H. Lewis and Wm. A. Lewis, and the defendants in the above-stated cause, now pending in the Jackson circuit court, and Mrs. Callie H. Lewis, respectfully showeth unto your honor: First, that they are residents, citizens of Jackson county, Florida; that on the 1st day of October, A. D. 1892, the said Lewis & Bro. executed to the said Mrs. Callie H. Lewis a chattel mortgage on a stock of merchandise in their storehouse in the town of Greenwood, in said county, to secure an indebtedness due to the said Callie H. Lewis by the said Lewis & Bro.; that the indebtedness undertaken to be secured was in excess of the security given in value, and that said stock of goods were at the time of the execution of said mortgage inventoried at $3,450.00 or thereabouts, and that the same were worth about three thousand ($3,000.00) in cash. "Your petitioners further show unto your honor that on the 7th day of October, 1892, S. Waxelbaum & Son, of Macon, Ga., and A. G. Levy & Co., of Mobile, Ala., procured writs of attachment issued by Frank Phillips, clerk of the circuit court of Jackson county, Florida, against Lewis & Bro.; that said attachments were levied by A. Scott, as sheriff of said county, on said stock of merchandise, to satisfy an indebtedness claimed by them in their affidavits of $5,461.00, besides the costs of court; that said levy was executed as aforesaid on the 7th day of October, A. D. 1892. "Your petitioners further show unto your honor that on the 24th day of October, 1832, your petitioner Mrs. Callie H. Lewis executed and filed with the clerk of said court (Frank Phillips) her claim affidavits, and with the sheriff aforesaid her claim bonds aggregating $5,800.00, whereupon the sheriff aforesaid released and turned over to your petitioner Callie H. Lewis the stock of merchandise aforesaid; that at the same time that the attachments were issued, or within one or two days thereafter, and before the claim of your petitioner was instituted in the said court, that S. Waxelbaum & Son instituted their suit of replevin for a portion of the same goods that had been levied upon by said A. G. Levy & Co., and that the same, amounting to about $800.00, were turned over to their possession, and in turn were with the remaining stock, which was inclusive of the entire stock levied upon, turned over by said sheriff to your petitioner Callie H. Lewis. "Your petitioners further show unto your honor that on the 18th day of October, 1892, and since that time, the Standard Guano & Chemical Manufacturing Company, a corporation under the laws of Louisiana, had procured and issued out of the same court, by the said Frank Phillips, as clerk aforesaid, two (2) attachments against the said Lewis & Bro. as aforesaid; that Barney Cavanaugh Hardware Company, a corporation under the laws of Alabama, had procured attachments out of the same court issued by said clerk, and against said Lewis & Bro.; that T. G. Bush & Co., a mercantile firm composed of T. G. Bush, J. S. Knight, and R. F. Neville, of Mobile, Ala., procured out of the same court, by said same clerk aforesaid, writs of attachment against said same Lewis & Bro.; that Lowenstein Bros., a mercantile firm composed of Marcus Lowenstein and Louis Lowenstein, had also procured attachments issued out of said court by said clerk against your petitioners Lewis & Bro. as aforesaid; that all the above last named attachments had issued out of the circuit court of Jackson county, returnable to the November term thereof, since the 18th day of October, 1892, and since your petitioner Mrs. Callie H. Lewis had replevied the stock of merchandise which had been levied upon under the first-named attachments as the property of Lewis & Bro. "Your petitioners further show that on the 18th day of October, A. D. 1892, that A. Scott, as sheriff, aforesaid, did by virtue of his office as sheriff, and under the last-named writs of attachments, again seize and reduce to his possession the entire stock of merchandise which had been by him before levied upon; and while the same suits were pending in said court, and before the claim of the said Callie H. Lewis had been disposed of; that said sheriff, over the protest of your petitioner and the sureties on her forthcoming bond, had taken the goods then and there already in the custody of the law, and levied the lastnamed writs of attachments issued against said Lewis & Bro. since the interposition of her claim. "Your petitioners further show unto your honor that Frank Phillips, as clerk of said court aforesaid, did, on the 24th day of October, A. D. 1892, issue an order commanding the said A. Scott, as sheriff aforesaid, to sell said goods under the powers conferred under section 1655 of the Revised Statutes of Florida, and that A. Scott, in obedience to said order, did advertise the same to sell on the 29th of the present month,-only two days off; that a copy of said advertisement is hereto annexed. [Not found by the clerk.] "Your petitioners further show unto your honor that the said Lewis & Bro., as aforesaid, have filed with the clerk of said court a motion to dissolve all of the aforementioned attachments. "The premises considered, your petitioners Lewis & Bro., the defendants in all the beforementioned attachments, and Callie H. Lewis, the claimant to all the property lev. ied upon, move the court to grant an order vacating the last levies made by said sheriff in favor of the Standard Guano & Chemical Mfg. Co. in two different attachments brought by them at the same time in the same court, and levied on the said same stock of merchandise; also the levy made by said sheriff on said same stock in favor of the Barney Cavanaugh Hardware Co.; also the levy made by said sheriff in favor of T. G. Bush & Co. and Lowenstein Bros., -all against said Lewis & Bro., and levied on said same stock of merchandise,-and to return the possession of the same to the claimant Callie H. Lewis, because the stock of goods, the subject of the last-named levy which we ask to have vacated, was and is in the custody of the law, and because the same was tortious and void, because the same was forbid by the sureties who demanded its retention by the sheriff while in his possession last, that the same might be forthcoming under the terms of their bond; and because the same, if not prevented, will be sold, and put out of the reach of the sureties, whose power to have the same forthcoming would be then destroyed. "Mrs. Callie H. Lewis. "Lewis & Bro. "State of Florida, Jackson County. Before me, Frank Phillips, clerk of the circuit court of said county, personally came H. H. Lewis, one of the firm of Lewis & Bro., and one of the petitioners in above motion, who is also one of the defendants to the aforesaid and stated cases, who, being by me first duly sworn, deposes and says that all the matters and things alleged in the petition herein are true and correct according to his knowledge and belief. H. H. Lewis. "Sworn to and subscribed before me this, the 2d day of October, 1892. "Frank Phillips, "Clerk of the Ct. Ct., Jackson Co." To this petition the defendants named therein filed the following demurrer: "Now come the respondents, and demur to the petition herein, and for matters of law to be argued say that petitioners have not made or stated such a case as to entitle them to the relief prayed or sought. It is not shown that petitioner Callie H. Lewis was ever lawfully and rightfully in possession of the property levied upon by virtue of respondents' several writs of attachment. A mortgagee of a chattel mortgage has no standing in a court of law to interpose a claim to the mortgaged property levied upon. There is in the petition no allegation of legal title or possession of said stock of goods in Mrs. Callie H. Lewis. The giving of a claim bond by Callie H. Lewis and delivery of the property to her operated as a release of the lien of the previous attachments. Property, if in custodia legis by virtue of former attachments under our statute, is liable to levy under junior attachments. A motion to vacate is not the proper remedy of the petitioners. The remedy of petitioner Callie H. Lewis is |