by claim proceedings, replevin, or a bill In chancery for an injunction. The proper remedy of defendants Lewis & Bro. is by motion to dissolve the attachments."

Upon this demurrer the circuit judge, on November 8, 1892, made the following order: "These several suits brought by attachment to November term, a rule day, these several causes coming on to be heard upon a motion made by the defendants and Mrs. Callie H. Lewis, the claimant in a claim suit now pending in this court involving the identical goods levied upon by the sheriff to satisfy the writs issued in the above cases, the motion being to vacate the levy made by the sheriff, and to have the property levied upon returned to the claimant, there was a demurrer interposed to the motion or petition, and upon a hearing of argument by counsel it is the order of the court that the demurrer is overruled, and, the plaintiffs asking time within which to file an answer, it is further ordered that they be allowed ten (10) days within which to make answer. It is further ordered that the sale of the goods levied upon be suspended for thirty days, and, if no answer filed by the plaintiffs, to abide the further order of the court." Afterwards, on November 17, 1892, the court made the further order following: "This cause coming on for further hearing, the respondents announcing that they do not desire to file answer to the petition, it is considered by the court and ordered that the motion to vacate the levies of the attachments of the respondents upon the stock of merchandise mentioned in the petition be denied, but that the sheriff of Jackson county, Florida, surrender possession of the same to Callie H. Lewis, the petitioner, within fifteen days from this date, unless supersedeas bond on appeal or writ of error be filed and approved within said time. The court hereby fixes the amount of bond that will be required from the respondents, or such of them as may desire to appeal or sue out writ of error, to operate as a supersedeas at the following amounts: The Standard Guano & Chemical Manufacturing Company at the sum of two thousand dollars; Lowenstein Brothers at the sum of four hundred dollars; the Barney Cavanaugh Hardware Company at the sum of two hundred dollars; T. G. Bush & Co. at the sum of three hundred dollars,-said bonds to be made payable to Callie H. Lewis, and to be conditioned to pay all costs, damages, and expenses which she may suffer or be put to by reason of the suing out of said writ of error, in case the judgment of this court be affirmed. The giving of such bond as herein prescribed for said respondents shall operate as a supersedeas of this judgment, and the judgment herein of November 8, 1892, overruling demurrer to petition herein and suspending sale under proceedings under attachment writs against Lewis & Brother, as to said respondents, immediately upon the

filing of said bond." From this judgment the defendants named in the petition have taken this writ of error.

The order overruling the demurrer to the petition, and the order directing the sheriff to surrender the goods levied upon under the respondents' several writs of attachment to the petitioner Callie H. Lewis are assigned as error. The court below erred in both of these orders. The respondents' demurrer to the petition should have been sustained, and the petition dismissed, for the following reason: By her petition Mrs. Callie H. Lewis shows that she has no other right, title, or interest in or to the personal property levied upon by the various writs of attachment in favor of the respondents to her petition than that of a mere mortgagee holding a lien thereon in the shape of a chattel mortgage. She does not show that she was in possession or entitled to the possession of the property in controversy that was levied upon by the writs of attachment as the property of Lewis & Bro. A person holding a bare mortgage upon personal property in this state, with no right to present possession of such property, cannot maintain a claim proceeding for such property, under the statutes of this state, as against attaching creditors of the mortgagor thereof. Stansel v. Rountree, 40 Fla. 428, 25 South. 277. As this disposes of the case, we will not discuss other questions presented.

The judgment of the court below is reversed, with directions to sustain the demurrer to the petition of the defendants in error, and to dismiss such petition.

CARTER, J., being disqualified, took no part in the decision of this case.

FLORIDA E. C. RY. CO. v. HAZEL. (Supreme Court of Florida. Dec. 21, 1901.) CONSTITUTIONAL LAW-TITLE OF ACT-CONSTRUCTION-RAILROADS KILLING STOCK – REPEAL BY IMPLICATION-APPEAL-ATTORNEY'S FEES.

1. Where the title of an act clearly, though briefly, expresses the subject-matter of legislation contained in the body of the act, and there is nothing in the act which is not properly connected with such subject-matter, the requirement of section 16, art. 3, Const. 1885, that the subject of an act of the legislature be briefly expressed in the title, is complied with.

2. Courts should not resort to critical or technical construction of the language of the title of an act, in order to exclude parts of the body of the act from its purview as being in violation of the constitutional requirement that the subject of an act be briefly expressed in the title; nor should the title be held insufficient to embrace parts of the body of the act unless the question be free from doubt.

3. The title of chapter 4069, Acts 1891. is sufficient to sustain the provisions in the body of the act authorizing the recovery of double damages and attorney's fees by owners of live stock killed or injured by the engines and cars of railway companies failing to fence their tracks as therein required.

4. Repeals by implication are not favored,

and, in order that the court may declare that one statute repeals another by implication, it must appear that there is a positive repugnancy between the two, or that the last was clearly intended to prescribe the only rule which should govern the case provided for, or that it revises the subject-matter of the former.

5. The provisions of chapter 4069, Acts 1891, relating to the recovery of double damages and attorney's fees for live stock killed by the engines and cars of railroad companies failing to fence their tracks as therein required, were not repealed by section 7, c. 4189, Acts 1893.

6. The supreme court has no jurisdiction to entertain a motion for the allowance of a reasonable attorney's fee for services rendered in behalf of a defendant in error in said court, filed in a cause pending in said court upon writ of error from a judgment of a circuit court rendered in favor of defendant in error against plaintiff in error for double damages, costs, and attorney's fees, under chapter 4069, Acts 1891.

(Syllabus by the Court.)

Error to circuit court, St. Johns county; C. L. Collins, Referee.

Action by John Hazel against the Florida East Coast Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

W. A. MacWilliams, for plaintiff in. error. Fowler & Fowler, for defendant in error.

PER CURIAM. It appears from the abstract in this case that the defendant in error instituted suit in the circuit court of St. Johns county against plaintiff in error to recover double damages and attorney's fees for the killing of certain live stock; the declaration, filed January 1, 1896, alleging the failure of defendant to fence its tracks as required by chapter 4069, Acts 1891. The company demurred to the declaration upon the ground that the act referred to was unconstitutional, which demurrer was overruled. Thereafter it pleaded, "Not guilty." The referee to whom the case was referred, after hearing evidence, found for the plaintiff, and entered judgment for the sum of $100 double damages, and $35 attorney's fees, besides costs. Motions for a new trial and in arrest of judgment were made and overruled, and the company took writ of error to this court.

The errors assigned relate to the rulings before stated, but the only questions presented and argued in the briefs are as follows: First, whether the provisions authorizing double damages and attorney's fees in the act referred to are unconstitutional, because of a defect in the title of the act; second, whether such provisions were repealed by section 7, c. 4189, Act 1893.

Chapter 4069 is entitled "An act requiring railroad companies to fence their tracks, and providing remedies against them for failure to do so." The first section requires railroad companies or persons operating railroads in this state to begin within 60 days after the passage of the act to construct a fence on both sides of its line, so as to pre31 So.-18

vent the intrusion of any cattle and horses upon its track, except in certain places therein designated. The second section requires the companies or persons to commence to construct such fence within 60 days after the passage of the act, and to continue such construction uninterruptedly until the work is completed, which is required to be done within 2 years after the approval of the act, and also to erect proper stock guards as provided in the third section. The third section specifies the character of fence and stock guards to be constructed. The fourth section provides that any railroad company or person owning or operating any railroad in this state failing to fence at least 1/22 part of their entire line of road, and to provide stock guards as required, each and every month after 60 days from the passage of the act, shall be liable for double the amount of all damages caused by injury or killing any live stock, cattle, or horses by railway engines or cars, and all costs, expenses, and reasonable attorney's fees incurred in collecting same by suit; and a lien is thereby given for the amount of said damages, costs, and attorney's fees upon the railroad line, appurtenances, properties, franchises, machinery, and equipments, equal in dignity to laborers' liens. It also provides for the recovery of the damages and attorney's fees, and the enforcement of the liens in courts having jurisdiction, within 12 months after the presentation of a claim, for such damages as are in the statute specified; and in all such suits the burden of proof is declared to be upon the company or person operating the road. The fifth section requires the maintenance of such fences after their construction, and in default thereof the same liability is imposed as in cases where fences are not constructed as required. The sixth section regulates the liability for stock killed while complying with the provisions of the act, and also provides that the act shall not apply to log roads.

It is contended that the liability for double damages and attorney's fees imposed by this act is a penalty; that the title of the act does not indicate that penalties are imposed, but only that remedies are provided; and therefore that the title is misleading and insufficient to sustain the provisions for double damages and attorney's fees, under section 16, art. 3, Const. 1885,-that "each law enacted in the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title." The wellsettled rule in this as well as other states is that when the title of an act clearly, though briefly, expresses the subject-matter of the legislation contained in the body of the act, and there is nothing in the act which is not properly connected with such subject-matter, the constitutional requirement quoted is complied with. There can be no doubt that under the first clause of the title of this act,

to wit, "An act requiring railroad companies to fence their tracks," it would be competent for the legislature to provide the means for its enforcement, and in doing so to authorize the recovery of double damages and attorney's fees. Railroad Co. v. Crider, 91 Tenn. 489, 19 S. W. 618; State v. Bernheim, 19 Mont. 512, 49 Pac. 441; Snook v. Clark, 20 Mont. 230, 50 Pac. 718; Railway Co. v. Harrelson, 44 Kan. 253, 24 Pac. 465; Plumb v. Christie, 103 Ga. 686, 30 S. E. 759, 42 L. R. A. 181; Burrows v. Transportation Co., 106 Mich. 582, 64 N. W. 501, 29 L. R. A. 468. The only question that can arise here is as to the effect of the last clause in this title, to wit, "and providing remedies against them for failure to do so"; it being argued that this clause so restricts the title as to make it misleading with reference to the provisions for double damages and attorney's fees. There is no doubt that a general title may become restricted by the addition of a provision or provisions thereto (State v. Burns, 38 Fla. 367, 21 South. 290, and cases cited), but we are of the opinion that the objection made does not apply to the title of the act under consideration. The court is not authorized to declare the title obnoxious to the constitutional requirement as to title, if the question be a doubtful one. Commissioners of Duval Co. v. City of Jacksonville, 36 Fla. 196, 18 South. 339, 29 L. R. A. 416. It is not clear that the word "remedies" was used in a technical sense in the second clause of the title, but, rather, that it was intended by this clause to assert in a most general way that means were provided for enforcing the act, without designating specifically whether these means consisted of the imposition of liabilities, penalties, or otherwise. It certainly does not exclude the idea that liabilities or penalties are imposed for violating the duty declared. The court should not resort to critical or technical construction of the language of the title in order to exclude parts of the body of the act from its purview. McAunich v. Railroad Co., 20 Iowa, 338; Burrows v. Transportation Co., supra. We do not feel authorized to declare that the matter objected to is not properly connected with the subject-matter embraced in the title, or that the title is so restricted as to render its insertion improper.

The second question presented is whether the provisions relating to double damages and attorney's fees in the act of 1891 were repealed by section 7, c. 4189, Act 1893. That act is entitled "An act to force railroad companies, other companies and other persons running cars or trains in this state to post marks, brands, color and sex of live stock that may be killed or injured by engines and cars; and to keep a record, and to provide for the payment of the same." The first six sections of this act require certain designated officials and employés of railroads to make certain reports of the killing or inJuring of stock by the operation of trains,

to provide blackboards at depots, and post marks and brands and other description of live stock killed or injured, and making certain omissions connected therewith misdemeanors punishable by fines. The seventh section reads as follows: "The posting of marks and brands shall be prima facie evidence of the killing or injuring of stock; and whenever the owner establishes his claim the railroad company shall pay to the owner the full cash market value for such stock. If the owner has to resort to law to collect his claim and judgment should be rendered against the railroad company and they should desire to appeal to a higher court, they must first pay all court costs in the lower court, including plaintiff's lawyers' fee which must in all cases be a reasonable lawyers' fee." The act contains no repealing clause, nor does it anywhere make any reference to the fencing of railroad tracks; but it is contended that the seventh fixes the amount of recovery by owners of stock killed by the operation of railroads in all cases, whether in consequence of failure to fence their tracks as required by the act of 1891 or otherwise, and therefore by implication repeals so much of the act of 1891 as gave double damages and attorney's fees. Repeals by implication are not favored, and, in order that a court may declare that one statute repeals another by implication, it must appear that there is a positive repugnancy between the two, or that the last was clearly intended to prescribe the only rule which should govern the case provided for, or that it revises the subject-matter of the former. State v. Palmes, 23 Fla. 620, 3 South. 171; Mitchell v. Duncan, 7 Fla. 13; State v. Moore, 37 Or. 536, 62 Pac. 26. The act of 1893 was certainly not a revision of the subject-matter embraced in the act of 1891, for it makes no reference whatever to fences. Nor can it be contended that there is anything in its language that indicates an intention to change, modify, or repeal the fence statute or any of its provisions, and there is no necessary repugnancy between the two acts. The clause, "and whenever the owner establishes his claim the railroad company shall pay to the owner the full cash market value for such stock," contains no negative words; nor is there anything in its language indicating an intention to apply the rule it announces to cases arising under the act of 1891. While the language is general, it is not exclusive, and we are of opinion that it must be so interpreted as to except the cases provided for by the act of 1891. Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614; U. S. v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130.

This disposes of all the questions presented, and, finding no error, the judgment must be affirmed.

In this case a motion has been made in this court for the allowance of an attorney's fee in favor of defendant in error for de

fending the suit in this court, but, without reference to the sufficiency of proof here to establish such a claim, we are of opinion that this court has no jurisdiction to entertain such a demand. If he is entitled to attorney's fees under the statute for maintaining his judgment in the appellate court, he must first resort to a court having original jurisdiction. Such motion is therefore hereby denied.

MYERS et al. v. STATE.

(Supreme Court of Florida. Oct. 23, 1901.) JUROR CHALLENGE-IMPANELING OBJECTIONS EVIDENCE EXAMINATION OF WITNESS IMPEACHMENT-OPINION EVIDENCEINSTRUCTIONS-CONSPIRACY — CIRCUMSTANTIAL EVIDENCE-MURDER.

1. After a trial juror is sworn in chief it is too late to challenge him peremptorily.

2. Objections to the time or manner of swearing trial jurors in chief must be followed by an exception to the ruling, in order to be available upon writ of error.

3. An objection to a question propounded to a witness, followed by an exception to the ruling permitting it, will not be considered by an appellate court, where no testimony was given in answer to the question objected to.

4. A trial judge, in his discretion, may permit leading questions to be propounded to witnesses, and in this state the exercise of such discretion is not reviewable by the supreme court upon writ of error.

5. If the state be permitted, upon crossexamination of a defendant's witness, to interrogate him respecting a supposed prior statement, supposed to be inconsistent with his present testimony, and the witness denies making the remarks attributed to him, and no effort is made by the state to prove such former prior statement, no ground of reversal exists on account of such cross-examination, even though defendant's objections thereto ought to have been sustained.

6. A witness cannot be cross-examined respecting matters collateral and immaterial, and beyond the scope of the direct examination, in order to contradict him by other evidence, so as to discredit his testimony.

7. In order to admit proof under section 1102, Rev. St.. that a witness made a former statement relative to the subject-matter of the case inconsistent with his present testimony, such former statement must in fact be inconsistent with the present testimony of the witness, and must relate to material matters pertaining to the subject-matter of the cause.

8. Evidence offered by a defendant in a criminal cause, to the effect that a person not a witness in the case, and whose alleged improper conduct is not shown to have been known to or approved by any witness for the state, or any one in any manner connected with the prosecution of the defendant, attempted to procure a witness produced by defendant to give false evidence against him by threats of criminal prosecution, is properly excluded.

9. As a general rule the opinion of a witness as to the guilt or innocence of an accused person is not admissible in evidence, and therefore. in general, a witness cannot be contradicted or impeached by proof as to his opinion of the merits of a case, by cross-examination or otherwise.

10. An instruction to the effect that the evidence of an accomplice should be received by the jury with great caution, but if the testimony carries conviction, and the jury, after

careful consideration of all the evidence, are convinced of its truth, they should give to it the same effect as would be allowed to that of a witness who is in no respect implicated in the offense, is correct.

11. One conspirator cannot be held liable criminally for every accidental result arising from acts of co-conspirators while engaged in the execution of the common purpose, but only for such accidents as could reasonably have been foreseen to occur, or such as would probably happen in the execution of the conspiracy agreed upon.

12. An instruction to the effect that if the act of one conspirator, proceeding according to the common intent, terminates in a criminal result, though not the particular result meant, all the conspirators are liable; that is, a person may be guilty of a wrong he did not specifically intend, if it came naturally, even though accidentally, through some other specific or general evil purpose,-is unobjectionable, as applied to prosecutions for unlawful homicide, when the facts warrant it, at least to prosecutions for grades of unlawful homicide, in which no specific intent is required.

13. An instruction to the effect that the value of circumstantial evidence depends upon the conclusive nature and tendency of the circumstances relied on to establish any controverted fact; that they must not only be consistent with guilt, but inconsistent with innocence; that such evidence is insufficient where, assuming all to be proved which the evidence tends to prove, some other reasonable hypothesis of innocence may still be true, for it is the actual exclusion of every other reasonable hypothesis but that of guilt, which invests mere circumstances with the force of proof: that what circumstances will amount to proof can never be matter of general definition, the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury; that absolute, metaphysical, demonstrative certainty is not essential to proof by circumstances, but that it is sufficient if they, with all the other evidence, produce moral certainty, to the exclusion of every reasonable doubt,-is correct.

14. In a criminal case, where the trial consumed about seven days and more than thirty witnesses were examined, there was no reversible error in giving an instruction as follows. "This case has occasioned a great deal of trouble and much cost to the state and county, and has taken up an unusual amount of the time of the court, and it is important, both to the state and defendants, that the jury should arrive at some verdict. The jury should agree on a verdict. No juror from mere pride of opinion hastily formed or expressed should refuse to agree; nor, on the other hand, should he surrender any conscientious views founded on the evidence. It is the duty of each juror to reason with his fellows concerning the facts, with an honest desire to arrive at the truth, and with a view of arriving at a verdict. It should be the object of all the jury to arrive at a common conclusion, and to that end to deliberate together with calmness. It is your duty to agree upon a verdict, if that be possible without a violation of conscientious convictions."

15. Under a count in an indictment for murder, charging that A. inflicted the mortal wound, and that B. was present aiding and abetting, both may be convicted, though the evidence shows that B. inflicted the mortal wound, and that A. was present, aiding and abetting.

16. An instruction containing the proposition that "if the guilt of the prisoner is to be established by a chain of circumstances, and the jurors have a reasonable doubt in regard to any one of them, that one ought not to have any influence in making up their verdict," is properly refused.

17. Where the trial court, by an instruction, cautions the jury against conviction from prejudice, or on insufficient evidence, and directs them to acquit an accused unless satisfied from the evidence beyond a reasonable doubt of his guilt, it may properly refuse to give requested instructions cautioning the jury against hasty conclusions as to defendant's guilt from the cruel, brutal, and revolting manner of the killing of the deceased, as disclosed by the evidence.

18. The trial court properly refuses instructions containing propositions already substantially given in charges, though couched in different language.

(Syllabus by the Court.)

Error to circuit court, Marion county; William A. Hocker, Judge.

Nicholas P. Myers was convicted of murder, and Robinson Myers as accessory before the fact, and they bring error. Reversed.

Raymond B. Bullock, for plaintiffs in error. William B. Lamar, Atty. Gen., for the State.

CARTER, J. Nicholas P. Myers, otherwise called "Nick" Myers, was convicted of murder in the third degree, and Robinson Myers was convicted as an accessory before the fact, upon their joint trial in the circuit court of Marion county, held in October, 1900, and from the sentences imposed sued out this writ of error.

It appears from the bill of exceptions that a jury consisting of 12 named persons came, and each of said persons was ordered by the judge sworn in chief as tendered by the state and accepted by the defendants, to which defendants then and there objected, and gave notice of their right to challenge any of said jurors so sworn, if, after 12 were sworn in chief individually, the number of peremptory challenges to which either of defendants was entitled was not then exhausted; and thereafter Nicholas P. Myers, not having exhausted his peremptory challenges, before any witness was put upon the stand, and before the jury was sworn, collectively submitted his peremptory challenge to one of said jurors, which was denied by the court, for the reason that the jurors had been selected on the previous day, and tendered to the defendant, and each and all of them accepted and sworn as accepted, and therefore the challenge came too late, which last named ruling was excepted to. and is made the basis of the first assignment of error. It clearly appears that the juror challenged had been sworn in chief before the peremptory challenge was interposed. Under such circumstances the challenge came too late, and was properly disallowed. Bradham v. State, 41 Fla. 541, 26 South. 730. We do not understand that counsel deny the general proposition that a peremptory challenge must be interposed before the juror is sworn, but he contends that the court should have deferred swearing any of the jurors until the full number had been

selected and accepted, and that by swearing them in chief singly, as they were accepted, the right to peremptorily challenge a juror was prematurely taken away. That question is not presented for our consideration in this case. No exception was taken to the time or manner of swearing the jurors. It is true, objection was made, but the objection alone, without any exception, does not present the question for our consideration. Alexander v. U. S., 138 U. S. 353, 11 Sup. Ct. 350, 34 L. Ed. 954.

The second assignment of error complains that the court erred in admitting evidence in reply to the following question, alleged to have been propounded to Mrs. Caroline Arms, a state's witness, to wit: Was there any reason why he (I. O. Arms, the deceased) should leave home? We do not find from the bill of exceptions that the precise question stated was propounded, but do find that the witness was asked, "Do you know of any reason why he (Arms) should leave his home?" Which was objected to as seeking the opinion of the witness. The objec tion was overruled, and an exception taken, but the question was not answered by the witness. As no testimony was given in reply to the question, defendants have no cause to complain of the ruling.

The deceased was last seen alive about 4 o'clock p. m., December 22, 1897, engaged in work near his house. He failed to appear at supper time, and during that night and the next day parties were searching the neighborhood for him. Following certain tracks leading from a place near where he was last seen, members of the searching parties came upon a fire that had evidently been made of logs, and which was nearly burned out, and in this fire was a frame of bones, and several articles which it was claimed deceased had with him at the time of his disappearance. One witness, J. W. Elkins, was asked to describe what he found at the fire, and replied: "I took a stick and raked out fragments of bones, some of the pieces I thought were skull bones, one piece was the jaw bone, and finger bones I took them to be." Immediately following this answer of the witness in the bill of exceptions is the statement of an exception as follows: "Hereupon the defendants' counsel objects to witness testifying to matters of opinion, and the said judge's opinion and decision overruling said objection, to which ruling said defendants then and there excepted." Upon this exception is based the third assignment of error, to the effect that the court below admitted improper evidence against defendants, in that the witness Elkins was permitted to give his opinion as to the kind of bones taken from the fire. There was no objection to the admission of the evidence quoted, nor was there an objection to the question eliciting it, nor was there a motion to strike it out. The exception, as presented to us, does not seem to be aimed at