Dunbar a fee-simple title to Rustic Lawn plantation. The grounds, therefore, upon which the heirs of William H. Dunbar based their claim to the property in controversy were without support in law, and the decision of the chancellor denying an amendment of the bill in order to make them parties thereto is, as we think, correct.

It only remains to consider what interest, if any, the grantees of Mrs. Martha Claiborne have in Rustic Lawn plantation. William H. Dunbar died in 1887, and had, in 1860, conveyed this plantation by way of mortgage to secure L. D. Aldrich in the payment of a large sum of money, which mortgage was foreclosed in 1868, when Mr. Aldrich became the purchaser thereof; and during the life of William H. Dunbar, and until the title to the property passed from him by sale under said mortgage, he claimed to be the sole owner thereof as against Mrs. Claiborne as well as all others, and since the purchase thereof by L. D. Aldrich and a deed thereof to him of date of June 1, 1870, he and his devisees had been, before suit brought, for more than 10 years in the adverse possession and enjoyment of said plantation, claiming the fee against all the world; and we think the title of Mrs. Claiborne, acquired by her as an heir of John W. Dunbar, is long since barred by the statute of limitation of 10 years.

Affirmed.

LITTLE et al. v. BRADLEY. (Supreme Court of Florida. Jan. 13, 1902.) APPEAL-WAIVER-MISJOINDER OF PARTIESNOTE-ACTION AGAINST GUARANTOR-DECLARATION-PLEA-DEMURRER.

1. An assignment of error not argued in the appellate court is considered as abandoned.

2. When the plaintiff admits a demurrer to his declaration on the ground of misjoinder of parties, and moves the court to be allowed to strike out the name of the party improperly joined, and discontinue the case as to such party, the court does not err in granting such motion, and in permitting the plaintiff to amend the declaration in accordance therewith.

3. When a declaration alleged the making of a note in which it was provided that, in the event the note was not paid at maturity, it might be placed in the hands of an attorney for collection, and in that event the makers and indorsers should pay an additional sum for attorney's fees, and, further, that one B. T. and the defendants guarantied the payment of the note, and the declaration does not show any qualification or limitation of the contract of guaranty, it is not obnoxious to demurrer on the ground that it "charges liability on the part of all the defendants for attorney's fees, when the same shows on its face that only the maker of said note is liable therefor, if at all." 4. A contract of guaranty may be coextensive with the contract, the performance of which is guarantied.

5. When the declaration shows that the real relation existing between the plaintiff and another person, to whom a note sued on is executed, is that of principal and agent, and not that of trustee and cestui que trust, though the note is payable to the other person as trustee, under section 981, Rev. St., authorizing suits

by the real party in interest, the plaintiff may maintain the suit in her own name, though the note be not indorsed by the payee.

6. To a declaration charging the defendants with the guaranty of the payment of a note, non assumpsit is a proper plea.

7. Under section 1064, Rev. St., and rule 64 of the rules of the circuit court in commonlaw actions, to a declaration charging the defendants with the guaranty of the payment of a note a plea alleging that the defendants did not guaranty the payment of the note as alleged in the declaration is a permissible plea; and although such a plea is embraced in the plea of non assumpsit also filed, if not equivalent to it, yet it is not for that reason subject to demurrer, though it might have been stricken by the court, as tending to embarrass a fair trial of the action. The ruling in Gas Co. v. Pebley, 5 South. 593, 25 Fla. 381, that a special plea tendering an issue covered by the plea of not guilty is demurrable, is not in conformity with subsequent decisions, and is not approved.

8. A plea which does not traverse any material fact alleged in the declaration, in terms thereof, but raises a question of law, whether, upon the facts stated in the declaration, and which the plea does not specifically deny, and therefore admits, the defendants can be held liable, is demurrable.

(Syllabus by the Court.)

Error to circuit court, Duval county; Rhy don M. Call, Judge.

Action by Lucy T. Bradley against J. A. Little and Lockhart Little. Judgment for Replaintiff, and defendants bring error. versed.

Defendant in error, Lucy T. Bradley, filed her declaration, the substance of the first count being that on or about May 15, 1893, one Bryan Taliaferro had in his hands $3,000 of the plaintiff's, and, as agent of the plaintiff, loaned the same to the Victoria Florida Phosphate Company, a corporation, which company on said day made and delivered to said Taliaferro, as trustee and agent of plaintiff, its promissory note, whereby it promised to pay to the order of said Taliaferro, trustee, $3,000 one year after date, with interest at the rate of 10 per cent. per annum until paid, payable semiannually, with the further agreement that if said note was not paid at maturity it might be placed in the hands of an attorney at law for collection, and in that event they should pay an additional sum of $300 for attorney's fees, and that defendants, J. Alex. Little and Lockhart Little, and Bryan Taliaferro, then and there jointly guarantied payment of said note, and that said note was taken by said Taliaferro as agent and trustee, and for the use and benefit of the plaintiff; that said Taliaferro departed this life about October 4, A. D. 1893; that said note was at maturity presented for payment and dishonored, whereof defendants had notice, but did not pay the same, but thereafter paid plaintiff on account the interest from time to time to November 15, 1895, and $500 on account of principal on July 3, 1895; that after said note was dishonored it was placed in the hands of Fleming & Fleming, attorneys at law, for collec tion.

In the second count it is alleged that the Victoria Florida Phosphate Company on May 15, 1895, by its promissory note, past due, promised to pay to the order of Bryan Taliaferro, trustee, $3,000 one year after date, with interest at the rate of 10 per cent. per annum until paid, payable semiannually, and further promised that, if said note should not be paid at maturity, it might be placed in the hands of an attorney at law for collection, and in that event the makers and indorsers should pay an additional sum of $300 for attorney's fees; that the payment of said note was then and there jointly guarantied by said Bryan Taliaferro and by the defendants, J. A. Little and Lockhart Little; that the consideration of said note was money of plaintiff loaned by her to said defendant company through said Taliaferro, who was, and acted as, her agent in that behalf, and took said note for her use and benefit, and the plaintiff is the owner and holder thereof; that said Taliaferro departed this life about October 4, 1893; that said note was at maturity presented for payment and dishonored, of which the defendants had notice, but did not pay same; that there has been paid on said note by defendants to plaintiff the interest to November 15, 1895, and $500 on account of principal on the 3d of July, 1895; and that after said note was dishonored it was placed In the hands of Fleming & Fleming, attorneys at law, for collection.

The third and fourth counts, being common counts, were withdrawn, and no question arises on them.

A note with indorsement thereon was filed with the declaration, but not made a part thereof.

(1)

Defendants filed demurrer to the declaration, assigning the following grounds: Said declaration contained no venue; (2) misjoinder of the Victoria Florida Phosphate Company with defendants, Little & Little; (3) charging liability on part of all the defendants for attorney's fees, when it appears that only the maker of the note is liable therefor, if there is any liability; (4) plaintiff does not show any proper capacity to sue.

The plaintiff admitting the ground of demurrer as to misjoinder (second ground), the court, on plaintiff's motion, ordered that the name of the Victoria Florida Phosphate Company be stricken out as a party defendant, and cause discontinued as to it, and the declaration be so amended.

The court overruled the demurrer, and required defendants to plead to the declaration.

Defendants filed the following pleas: (1) To the first and second counts of the declaration, that they never promised in manner and form as in the declaration alleged; (2) for a further plea to the first and second counts of the declaration, that they did not guaranty the payment of said note, as is al

leged in said declaration; (3) for further plea to first and second counts, defendants say they did not guaranty the payment of attorney's fees, as alleged in the declaration.

Plaintiff demurred to defendants' pleas as follows: (1) That said pleas did not set forth sufficient ground of defense; (2) that the first plea is inadmissible to the said cause of action set forth in the declaration; (3) that the second plea states a conclusion of law; (4) that the alleged guaranty being in writing, with copy attached to the declaration, that fact could only be traversed by the plea of non est factum; (5) that the third plea states a conclusion of law; (6) that the guaranty, being for payment without limitation, includes all payments provided to be made by the note.

The court made the following ruling on the demurrer: That the demurrer to the first, second, and third pleas be sustained, and defendants plead to the second and first counts on or before the 10th of November next.

Defendants thereafter filed the following plea to the first and second counts of plaintiff's declaration: That they did not make the guaranty as in said declaration is alleged. On motion of plaintiff this plea was stricken from the files on the ground that the same is a substantial repetition and reiteration of a plea of defendants in the cause which has been held bad on demurrer. Plaintiff thereafter filed a præcipe for default, which was entered against the defendants, which, in substance, declared that it appearing an order was made on the 18th of January, 1897, striking out defendants' pleas, and defendants not pleading further, default is entered against the defendants for want of defense. Afterwards a final judgment was entered against the defendants, and from this judgment the writ of error is sued out. Assignments of error were filed, and such of them as are essential to determine the case will be referred to in the opinion.

H. H. Buckman, for plaintiffs in error. Fleming & Fleming, for defendant in error.

HOCKER, C. (after stating the facts). The first assignment of error is "that the court erred in overruling the defendants' demurrer to the plaintiff's declaration." The first ground of demurrer to the declaration is not argued by the attorney for plaintiffs in error in his brief, and is therefore considered as abandoned.

Plaintiff below admitted the second ground of demurrer to the declaration, and the name of the Victoria Florida Phosphate Company was stricken out by order of the court, and the declaration amended in accordance with this order. We discover no error in this order of the court. Smith v. Westcott, 34 Fla. 430, 16 South. 332.

The third ground of demurrer to the declaration is that "the declaration charges liability on the part of all the defendants for attorney's fees, when the same shows on its face that only the maker of said note is liable therefor, if at all." We do not think this ground of demurrer was well taken. In both the first and second counts of the declaration it is alleged, in substance, that Bryan Taliaferro and the defendants, J. Alex. Little and Lockhart Little, then and there jointly guarantied the payment of the note sued on. It is alleged in the counts that in event the note was not paid at maturity the note might be placed in the hands of an attorney for collection, and in that event the makers and indorsers should pay an additional sum of $300 for attorney's fees. This was a part of the money contracted to be paid in the note, and it is alleged that the defendants guarantied the payment of the note. It does not appear from the declaration that there was any qualification or limitation of the guaranty. We have been referred to no authority, nor have we discovered any, which holds that the contract of a guarantor may not be coextensive with the contract the performance of which is guarantied. 1 Brandt, Sur. § 111; 2 Rand. Com. Paper, §§ 850, 851; Gridley v. Capen, 72 Ill. 11.

The fourth ground of demurrer to the declaration is that the plaintiff does not show any proper capacity to sue; it being argued that the declaration fails to allege indorsement of the note by Bryan Taliaferro, trustee. its payee. The court is of the opinion that this suit is maintainable under our statute (section 981, Rev. St.) authorizing suits by the real party in interest, under the facts alleged in the declaration, which show that the real relation existing between plaintiff and Taliaferro, the payee of the note, was that of principal and agent, and not that of trustee and cestui que trust, though the note is payable to Taliaferro, trustee. Whether, if the latter relation existed, the suit could be maintained by the plaintiff, is not intended to be decided. Cassidy v. Bank, 30 Minn. 86, 14 N. W. 363; Warnock v. Richardson, 50 Iowa, 450; Guano Co. v. Holleman (C. C.) 12 Fed. 61. In this connection other questions are presented and argued in the brief of plaintiffs in error, but it does not appear that they are embraced in the grounds of demurrer, and we do not, therefore, consider them. Railroad Co. v. Ashmore (decided at this term) 32 South. -.

The second assignment of error, "that the court erred in allowing the amendment to said declaration by striking therefrom Victoria Florida Phosphate Company as defendant, and in holding said declaration sufficient with only that amendment," has been considered and disposed of under the first assignment of error.

The third assignment of error is, "The court erred in sustaining plaintiff's demurrer

to defendants' pleas." The first of these pleas is non assumpsit. In view of the allegations of the declaration charging the defendants with the guaranty of the payment of a note, we think non assumpsit is a proper plea. In Bemis v. McKenzie, 13 Fla. 553, this court had occasion to pass upon the scope of this plea under the rules then in force, and it was held, under those rules, that such a plea was good as to the common counts, and say: "The rule prohibiting the plea of non assumpsit is confined to cases where the action is only on the note, and on the promise to pay contained in or implied by law from it. It is to be read as if it were worded thus: 'In all actions on bills of exchange and promissory notes simpliciter, without any other matter,' "-citing 2 Mees. & W. 721, 722. It is true that under the rules now existing non assumpsit cannot be pleaded to the common counts, because it is expressly forbidden; but it does not therefore follow it cannot apply to an action on a guaranty of the payment of a note, not alleged to be a part of the note itself. 2 Chit. Pl. (16th Ed.) p. 397. Under circuit court rule 64, the plea of non assumpsit is made applicable to this declaration.

The specific objection to the second plea is that it states a conclusion of law. This is a plea to the first and second counts of the declaration, and alleges that defendants did not guaranty the payment of the note as alleged in the declaration; thus traversing the contract or agreement alleged in the declaration. Under section 1064, Rev. St., and rule 64 of the rules of the circuit court in common-law actions, it is a permissible plea. It is true that, by the rule referred to, such a plea is embraced in, if not equivalent to, the plea of non assumpsit, and that, non assumpsit having been pleaded, the other was unnecessary, and might have been stricken by the court, on motion, as tending to embarrass a fair trial of the case, but it was not subject to demurrer. It is true that in Gas Co. v. Pebley, 25 Fla. 381, 5 South. 593, this court held that a special plea tendering an issue covered by the plea of not guilty is improper and demurrable. But we think the proper practice was announced in Wade v. Doyle, 17 Fla. 522-531. It is there said that "a special plea amounting to the general issue is an objection to the manner of pleading. It may be in sub

*

stance a good plea, and yet subject to attack on this ground. Where special demurrers are allowed, such a demurrer is the proper method of attacking such a plea. Special demurrers are abolished in this state, * but the court has power to strike out a plea of this character, * tending, as it does, when filed with the plea of the general issue, to embarrass the trial." We think the doctrine of this case is the correct one. It was followed in Barco v. Fennell, 24 Fla. 378, 5 South. 9, and it has been recognized in a number of cases since

the decision in Gas Co. v. Pebley, supra, viz.: City of Orlando v. Heard, 29 Fla. 581, 11 South. 182; Parkhurst v. Stone, 36 Fla. 456, 18 South. 591; Camp v. Hall, 39 Fla. 535, 22 South. 792. The court therefore erred in sustaining the demurrer to the second plea. It is proper, however, to say that if this were the only error in the record, and it appeared that the defendant had not been prejudiced by the ruling, the judgment would not be reversed for what is a mere formal error. We advert to it for the purpose of calling attention to the correct practice.

It seems to us that the third plea was obnoxious to demurrer. The declaration alleged the making of a note by the Victoria Florida Phosphate Company providing for the payment of principal and interest and a certain sum for attorney's fees, and that defendants guarantied payment of said note. The plea does not deny any of these facts, or that defendants guarantied payment of the note, as alleged. It does not traverse in terms of the declaration, but seems rather to raise a question of law,-whether, upon the facts stated in the declaration, and which the plea does not specifically deny, and therefore admits, the defendants can be held to have guarantied the payment of attorney's fees.

The fourth assignment of error is that the court erred in striking out defendants' plea filed November 10, 1896. This plea is substantially the same as the second plea, and is embraced in the first plea of non assumpsit. From what has already been said in regard to the ruling of the court on those pleas, it is not necessary to pass on this assignment of error

There are other assignments of error, but, in view of what has been decided in this case, it is unnecessary to consider them. The judgment should be reversed, and the cause remanded for further proceedings.

GLENN, C., concurs.

PER CURIAM. The foregoing opinion has been examined by the court, and is hereby approved and adopted, and ordered to be filed as the opinion of the court in said

cause.

MERRILL-STEVENS ENGINEERING CO. v. BREVARD COUNTY STATE BANK. (Supreme Court of Florida. April 16, 1901.) APPELLATE PRACTICE-CONSIDERATION ON ABSTRACT OF RECORD.

Where a cause is submitted to the appellate court upon abstracts of the record as prescribed by the rules of practice for the government of such court, and no exceptions to such abstracts are interposed, they are thereby admitted to be true and correct; and under the rules the appellate court is required in such a case to consider and dispose of the cause upon such abstracts alone, without reference to

the transcript of the record, and if no error is made to appear by such abstracts the judgment of the court below will be affirmed. (Syllabus by the Court.)

Error to circuit court, Duval county; Rhydon M. Call. Judge.

Action by the Brevard County State Bank Merrill-Stevens against the Engineering Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Adams & L'Engle, for plaintiff in error. W. H. Baker, for defendant in error.

PER CURIAM. This action was brought by the defendant in error against the plaintiff in error. There was judgment for the plaintiff, and the defendant takes writ of er

ror.

This cause coming on to be heard in its regular order on the docket, and the same being submitted upon abstracts of the record, that, by reason of not being excepted to, are admitted to be true, and which, under the rules, require a consideration of the cause upon the abstracts alone, without reference to the transcript of the record, after due consideration the court finds that no reversible error is made to appear by the said abstracts. It is therefore ordered and adjudged that the judgment of the court below is hereby affirmed, at the costs of the plaintiff in error.

FERRIS v. FERRIS.

(Supreme Court of Florida. Nov. 19, 1901.) APPELLATE PRACTICE-PARTIES-DISMISSAL.

Where indispensably necessary parties are omitted from an appeal, such appeal will be dismissed sua sponte by the court.

(Syllabus by the Court.)

Appeal from circuit court, Hillsboro county; William A. Hocker, Judge.

Action between Josiah Ferris and William H. Ferris. From the judgment, Josiah Ferris appeals. Dismissed.

G. A. Hanson, for appellant. F. M. Simonton, for appellee.

PER CURIAM. This cause, having been reached in its regular order on the docket for final adjudication, was referred by the court to two of its commissioners, Messrs. Maxwell and Glen (Commissioner Hocker having decided the case below), for investigation, who report that indispensably necessary parties have been omitted from the appeal, and the court, upon due consideration of the transcript of record, finding their report to be correct, and that such omitted and necessary parties have in no manner been brought within the jurisdiction of this court, it is therefore considered, ordered. and adjudged that the said appeal in said cause be, and the same is hereby, dismissed, at the cost of the appellant.

FERRIS v. SPAFFORD. (Supreme Court of Florida. Oct. 23, 1901.) APPELLATE PRACTICE-ABSTRACTS OF RECORD-ASSIGNMENTS OF ERROR.

Where a cause is submitted upon abstracts of the record without any exceptions thereto, the appellate court will consider the same under its rules upon such abstracts alone, without reference to the transcript of record; and where such abstracts do not contain any assignment of errors the cause will be dismissed. (Syllabus by the Court.)

Appeal from circuit court, Hillsboro county; Barron Phillips, Judge.

Action between Josiah Ferris and Oris J. Spafford. From the judgment, Ferris appeals. Dismissed.

G. A. Hanson, for appellant. Gunby & Gibbons, for appellee.

PER CURIAM. This cause, being reached in its regular order on the docket for final disposition, was referred by the court to its commissioners for investigation, and, they having reported that the said cause was submitted on abstracts of the record without exceptions thereto, and that such abstracts contain no assignments of error, and the court upon examination finding their report to be correct, it is therefore considered, ordered, and adjudged that the said cause be, and the same is hereby, dismissed, at the cost of the appellant.

AMERICAN BUILDING, LOAN & TON

TINE SAV. ASS'N v. WHITE et al. (Supreme Court of Florida. Nov. 13, 1901.) APPELLATE PRACTICE-TRANSCRIPT OF RECORD-COMPLIANCE WITH RULES.

When a bill of exceptions and transcript of record on writ of error is made up and prepared in such total disregard of the rules of practice in such cases as that nothing is properly presented thereby for review, the cause will, on motion, be dismissed.

(Syllabus by the Court.)

Error to circuit court, Orange county; Minor S. Jones, Judge.

Action by the American Building, Loan & Tontine Savings Association against W. A. White and James A. Knox. Judgment for defendants, and plaintiff brings error. Dismissed.

William H. Jewell, for plaintiff in error. Beggs & Palmer, for defendants in error.

PER CURIAM. This cause coming on to be heard upon motion of the defendants in error to strike from the files the transcript of record and to dismiss the writ of error upon divers grounds of noncompliance with the rules in the make up of such record, and it appearing to the court that the transcript of the record and bill of exceptions in said cause are made up and were prepared in such total disregard of the rules in such cases as that nothing is properly presented

for review thereby, it is therefore hereby ordered that the said cause be, and the same is hereby, dismissed, at the cost of the plaintiff in error.

PRESTON, Marshal, v. STATE ex rel. METCALF et al.

(Supreme Court of Florida. Oct. 23, 1901.) APPELLATE PRACTICE-SCIRE FACIAS AD au

DIENDUM ERRORES-RETURN.

A writ of scire facias ad audiendum er rores issued on January 28, 1897,-a day within a pending term of the appellate court,-and made returnable to a day within the same term, cannot be effectual to give such court jurisdiction over the person of the defendant in error served therewith; and if he in no wise appears, nor waives such defect in said writ, the cause will be dismissed.

(Syllabus by the Court.)

Error to circuit court, Orange county; John D. Broome, Judge.

Action by the state of Florida, on the relation of H. W. Metcalf and A. F. Williams, against J. W. Preston, as marshal and ex officio tax collector of the city of Orlando. Judgment for relators, and defendant brings Dismissed.

error.

W. H. Jewell, for plaintiff in error.

PER CURIAM. This cause, having been regularly reached on the docket for final determination, was referred by the court to its commissioners for consideration; and they having reported the same for dismissal, and it appearing to the court that the scire facias ad audiendum errores in the cause was issued on the 28th day of January, 1897, returnable to the 2d day of March of the same year,-the same being a day within the term of this court during which said writ was issued,-and, further, that no appearance has been made in this court by defendants in error, or waiver of the defect in said writ, it is therefore ordered that said cause be, and the same is hereby, dismissed.

SCHANG v. STATE.

(Supreme Court of Florida. Oct. 3, 1901.) CRIMINAL LAW--CARNAL ABUSE OF FEMALE CHILD-RAPE-ASSAULT WITH INTENT TO COMMIT.

1. Our statute (section 2396, Rev. St.) providing that "whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the state prison for life," defines the crime of rape; and, while it is necessary under it to allege and prove a different state of facts in order to justify a conviction where the female involved is over the age of 10 years than where she is under that age, the one case requiring force and want of the female's consent to be shown; the other, requiring simply the carnal knowl edge and abuse of the child, and that she is under 10 years of age, to appear,-yet in either