Volume 63 — Florida Reports

<p>1. - Threats made against the deceased by two of the three persons indicted for his murder on the night before the homicide, not made in the presence of the third party, are admissible in evidence against the two who made them, as tending to show their animus against the deceased, and the third person indicted is not injured by such evidence when the court instructs the jury that such threats are not evidence against such third party.</p> <p>2. No error is committed in refusing to permit a party charged wich an unlawful homicide to prove that he voluntarily surrendered to the officer,- when the State had not undertaken ■ to show that he evaded arrest.</p> <p>3. The question whether the title to an act was broad enough to cover some of its Sections is of no moment, when the sections of said act were subsequently embodied in the General Statutes of 1906.</p> <p>4. Section 3262, General Statutes of 1906, is not unconstitutional because it excepts sheriffs and other police officers from its operation, as said exception or classification is based on a public necessity, and is not in conflict with any specific provision of the constitution.</p> <p>5. The statutes against carrying concealed weapons have no-connection with- Sec. 20, of the Bill of Rights, which preserves “to the people the right to hear arms in defense of themselves and the lawful authority of the State.”</p> <p>6. Since the adoption of Sections 3262 and 3263 of the General Statutes of 1906, the carrying of concealed weapons is a breach of the peace which authorizes an arrest by an officer without warrant; and Sec. 3929 is broader and gives an officer authority to arrest without warrant any one who in the presence of such officer violates any of the penal laws of this State, or of any municipality, and makes it the duty of such officer to arrest without warrant and take into custody any person whom, such officer has reasonable ground to believe, and does believe, has committed any felony, or whom he finds in the act of committing any felony, or about to commit a felony, or engage in a fight, or other breach of the peace.</p> <p>7. Where a person fires a pistol in a village behind a cold drink stand within one hundred yards of an officer’s residence, it may fairly be said tk$.t the pistol was fired in the presence of the officer and is an offense under Sec. 3626 General Statutes of 1906, for which an officer may arrest the person firing the pistol without warrant. ' -</p> <p>8. Requested instructions not warranted by the evidence are' properly refused.</p>

<p>Writ of Error to the Circuit Court for Dade County.</p> <p>T3ie facts in the case are stated in the opinion of the court.</p>

<p>Writ of Error to tlie Circuit Court for Calhoun County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to tbe Circuit Court of Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>In a prosecution for assaulting a female child under ten years of age with intent to carnally know and ab.use her, where the evidence of guilt is direct and positive, and is ample to sustain a conviction, the judgment will not be reversed on the ground that the evidence does not support the verdict.</p>

<p>Writ of error to the Circuit .Court for Clay County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of error to the Court of Record for Escambia County. The facts 'in the case are stated in the opinion of the court.

Writ of error to the Criminal Court of Record for Duval County. The facts in the case are stated in the opinion of the court.

Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated m the opinion of the court.

<p>Writ of error to the Circuit Court for Osceola County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. The legislature may enact special or local laws within its discretion for the protection of fish or game in this State, and by valid general laws may prescribe punishment and penalties for violations of the special or local laws.</p> <p>2. After an adjudication that Section 3 of Chapter 5973, Acts of 1909, is invalid, sections 1 and 2 of the Chapter, remained in force declaring certain acts to be unlawful.</p> <p>3. Sections 1 and 2 of Chapter 5973, Acts of 1909, do not unlawfully discriminate against persons or deny to any person the equal protection of the laws.</p> <p>4. Sections 1 and 2 of Chapter 5973, Acts of 1909, are not void for uncertainty in the description of the territory covered by the regulation.</p> <p>5. The constitutionality of a provision of a statute cannot be tested by a party whose rights or duties are not affected by it, unless the provision is of such a nature that it renders invalid a provision of the statute that does affect the party’s rights or duties.</p> <p>6. Where a person is charged with taking fish “in Indian River,” in violation of a statute regulating the taking of fish “in any or all of the salt or fresh waters of the counties of” B., S. &e., such charge is not the basis for a contention that the statute is invalid because it conflicts with the right to fish in one’s own fresh water pond.</p> <p>7. Sections 1 and 2 of Chapter 5973, Acts of 1909, being existing valid laws, the enactment of Chapter 6222, Acts of 1911, a general law, provides a valid punishment for violation of the first named sections, without referring to them, di- specifically to Chapter 5973.</p>

Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated in the opinion of the court.

<p>Writ of'error to the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of error to the Criminal Court of Record for Duval County. The facts in the case are stated in the opinion of the court..

<p>1. In proceeding under a statute, the only safe course to pursue is to comply with all the requirements set forth therein; but the mere failure of the Chairman of the Board of County Commissioners to sign the list of jurors before handing the same to the Clerk of such board for recordation in the minutes, in accordance with the provisions of Section 1571 of the General Statutes, is not sufficient to vitiate an indictment found by a grand jury drawn from such list.</p> <p>2. Pleas in abatement setting up mere irregularities in the selection of jurors should be drawn with the greatest accuracy and precision, and must be certain to every intent. They must leave nothing .to be supplied by intendment, and no supposable special answer unobviated. When it affirmatively appears that no possible injury could accrue to a defendant by an irregularity not amounting to a substantial departure from the requirements of law in the selection and empanel-ling of jurors, an objection thereto should not avail.</p> <p>3. A demurrer to a replication reaches back to the plea and if the plea is defective in substance the judgment of the court in overruling the demurrer must be held to be correct, regardless of the sufficiency of the replication.</p> <p>4. In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for a new trial, which is based upon the sufficiency of the evidence to sustain the verdict, the question thereby presented to an appellate court is whether or not the jurors acting as reasonable men could have found such verdict from the evidence adduced. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.</p>

<p>1. In tbe absence of a bill of exceptions, errors assigned upon matters in pads will not be considered.</p> <p>2. A jury while trying one case, should not be used in the trial of another case.</p> <p>3. A plaintiff, who continues the trial of his cause before a jury, which had been improperly used as the jury of another cause during an intermission, will not be entitled to a reversal, in the absence of any showing of objection before verdict to the irregularity or of probable injury.</p>

<p>Writ of error to .the Circuit Court for Manatee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of error to the Circuit Court for Hillsborough County. The facts of the case are stated in the opinion of the court.

<p>1. Section 33 of Article III of the Constitution forbids the legislature to lessen the time within which a civil action may be commenced on an existing ca se of action to recover the possession of land.</p> <p>2. To acquire title to real estate by adverse possession without color of title, the premises actually occupied must have “been protected, by a substantial enclosure” or have “been usually cultivated, or improved.” for the full statutory period.</p> <p>3. While the digging of holes on land and the placing of posts therein on which a wire fence is put may be a trespass, the land is not actually occupied so as to start the running of the statute by which the occupant may acquire a title by adverse possession without color of title until the land is “protected by a substantial enclosure,” by the completion of a proper fence, where the land is not “usually cultivated, or improved.’’</p> <p>•4. Great latitude is to be allowed in the reception of indirect, or circumstantial evidence. It includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior exx>erience, or be a deduction of reason from the circumstances of the particular case, or of reason aided by experience. The competency of a collateral fact to be used as the basis of legitimate argument, is not to be determined by the conelusiveness of the inferences it may afford .in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry or to assist, though remotely to a determination probably founded in truth.</p> <p>5. Where evidence that is admitted is merely cumulative and favorable to or not harmful to the complaining party and is ' not forbidden by law, reversible error cannot be based thereon.</p> <p>6. Receipts for labor performed in constructing a fence and bearing particular dates may be relevant to the issue as to when the fence was built.</p> <p>7. When there is evidence that title by adverse possession to land was acquired by a defendant in ejectment under the seven year statute of limitations that became effective August 1st, 1901, by an actual occupancy beginning after the seven year statute was in force and extending for the requisite period, it' is not error to refuse to direct a verdict for the plaintiff, or to charge that the possession must have continued for twenty years as required by the statute when the possession began prior to August 1st, 1901.</p> <p>8. The requirement of the statute that the land shall be “protected by substantial enclosure” to acquire title by adverse possession without color of title, should be applied with reference to the facts and circumstances of each case as it arises for adjudication.</p> <p>9. Where lands are wild and uncultivated and they are used for pasturage or for obtaining timber or fuel therefrom, or some such similar use, a substantial enclosure might consist in a wire fence sufficient to indicate a purpose to claim the ownership and use of the land to the exclusion of all others and to protect the land from trespassing vehicles, riders or stock.</p> <p>10. Although there may be occasional breaks for roads and standing water in a fence enclosing land, yet the fence may be a “substantial enclosure” when it is manifest that there was for the full statutory period a conspicuous effort to maintain a fence around the land commensurate with the attending circumstances for the obvious purpose of exercising rights of ownership of the land and to use the land in a way to which it was suited.</p>

<p>Writ of error to the Circuit Court for Jefferson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for LaFayette County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Writ of error to the Circuit Court for Duval County. Statement. Charles Butler is alleged to have been killed by a train of the Southern Railway Company, and this action, begun August 26th, 1908, in the Circuit Court for Duval County, is in the name of his minor children by nest friend under the statute to recover such damages as they may have sustained by the death of their father. See Section 3145 and 3146 of the General Statutes as amended by Chapter 5648 Acts of 1907.

<p>In an action for brokerage for bringing about a sale of realty, evidence that another agency to Avhom a commission was paid, was the actual procuring cause is admissible.</p>

<p>Writ of error to the Circuit Court for Dade County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. A demurrer to the evidence admits the truth thereof and also such conclusions as the jury may fairly and justifiably draw therefrom. Forced or violent inferences from the evidence are not thereby admitted, but the testimony is to be taken most strongly against the demurrant, and such conclusions as a jury might justifiably draw therefrom the court ought to draw.</p> <p>'■2. The true and proper object of a demurrer to the evidence is to refer to the court the law arising from admitted facts— certain and determinate facts. Where the evidence is conflicting and not clear, certain and determinate, it is the province of the jury to weigh it, and the presumptions arising therefrom.</p>

<p>1. Equitable estoppels are proper defenses in actions of ejectment in this State, and evidence of such estoppels is admissible under the plea of not guilty.</p> <p>2. Equitable estoppel, so far as it relates to the trial of title to land, is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words or silence, led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.</p> <p>3. If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.</p> <p>4. Where a party entered on and made final payment for government land, but died about 1S46, before obtaining patent for the land, and for more than 30 years others have had possession of the land and put improvements on it, claiming ownership of it by virtue of deeds of conveyance primarily from the administrators of the deceased entryman, during which time the heirs of the decedent made no claim to the land, and there are no circumstances to prevent such possession and improvement under claim of ownership from operating as an equitable estoppel against such heirs, in an action of ejectment brought to .recover the land on a patent issued in 1906 in the name of the deceased entryman, a judgment for the defendant will be affirmed.</p>

<p>1. A declaration against a .domestic corporation upon a note made by it in the county but payable elsewhere is not defective for failing to allege that the corporation had an office in that county.</p> <p>2. The right of a domestic corporation to be sued only in a county where it has an office, is not jurisdictional, and the fact must appear and be claimed, before error can be predicated upon a deprival of that right.</p> <p>3. In an action upon a promissory note of a corporation, under the single plea of payment, the omission of the words “Treasurer, Assistant Treasurer,” from the note attached to the declaration is immaterial.</p> <p>4. An assignee of a negotiable instrument for a pre-existing debt is a holder for value.</p>

<p>1. At common law where on the receipt of goods by a carrier, an exhorbitant charge is made, and the same is coercively exacted either in advance or at the completion of the service, an action may be maintained to recover the overcharge.</p> <p>2. A statute will not be construed as taking away a common law right existing at the date of its enactment, unless the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy, or render its provisions nugatory.</p> <p>S. The common law right to recover freight charges collected in excess of reasonable rates, is essentially different from the right of action given by the statute to recover charges in excess of rates fixed by the railroad commissioners together with expenses incurred in the recovery, and there is no legislative intent expressed or implied to destroy or to supercede the common law right of action.</p> <p>4. A common count for money payable to the plaintiff for money had and received by the defendant for the use of the plaintiff is applicable in all cases where the defendant has obtained money which, ex aequo et T)ono, he ought to refund.</p> <p>5. A common count for money had and received lies for money paid by mistake or upon a consideration which has failed, or for money obtained through imposition, express or implied, or extortion or oppression, or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under these circumstances.</p> <p>O. Where a common carrier has exacted excess charges for the transportation of freight, such excess may be recovered in a common law action for money had and received by the defendant for the use of the plaintiff, whether the charges exacted are in excess of reasonable rates at common law or are in excess of rates prescribed and made prima facie reasonable under statutory authority.</p> <p>7. Under the statute the schedules of rates for the transportation of freight duly prescribed and certified as required by law shall in all suits brought against any railroad corporation wherein such rates are involved, be deemed and taken as prima facie evidence that such rates are just and reasonable.</p>

<p>Writ of error to the Circuit Court for Marion County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Santa Eosa County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Duval County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Wherever fraud is relied upon in any pleading, either at law or in equity, the allegations or averments should be specific and the ultimate facts constituting the particular fraud relied upon should be stated with certainty and distinctness, else such pleading, upon proper attack, will be held bad.</p> <p>2. The sufficiency of pleas setting up fraud as a defense is properly raised by demurrer.</p> <p>3. In an action upon a life insurance policy, which contains a clause that, with the execption of the suicide of the insured within one year from the date of such policy, “the policy will be incontestible from any cause from the date of its issue, provided the premiums have been duly paid,” a demurrer is properly sustained to pleas which attempt to set up fraud on the part of the insured in his answers to certain questions in his application for such policy, but which pleas fail to show any actual fraud practiced by the insured.</p>

<p>1. An order of tbe Circuit Court granting a new trial will be reversed, if it appears that the order has violated some settled principle of law.</p> <p>2. Whether a charge given to the jury is erroneous or misleading should be determined by a consideration of the charge complained of in connection with all the other charges given, and the pleadings and evidence in the case.</p> <p>3. When it appears from the whole record that an alleged misleading charge could not reasonably have influenced the verdict to the injury of the complaining party, a new trial on that ground should not be granted.</p> <p>4. Where a new trial is granted on the specific ground that a charge “was, perhaps, misleading in view of the evidence,” and the charge when considered with other charges given and the evidence could not reasonably have mislead the jury, and the motion for new trials does not disclose errors injuriously affecting the movant, the order granting the new trial will be reversed.</p>

<p>Writ of error to the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. A contract for the lease of timber for turpentine purposes and manufacturing naval stores for a term of........years, purporting to convey an uncertain interest m and out of land, or for a term of more than two years, to be valid, must be signed, sealed and delivered in the presence of two witnesses as provided by Section 2448 Gen. Stats, of 1906.</p> <p>2. A writing signed, sealed find delivered in the presence of one witness, which undertakes to sell and convey a turpentine still, three leases on timber made by a party having no apparent connection with the title to the land involved, is not proper evidence for the defendant in an action for damages to said land.</p> <p>3. When a plaintiff in an action for damages to land acquires title to the sam'e while the timber is being worked for turpentine and naval stores purposes under written license from the grantor of plaintiff, the latter can recover no damages for acts of the defendants in working the timber, done prior to notice to them, actual or constructive, of plaintiff’s acquisition of title.</p>

<p>Writ of error to the Circuit Court for Dade County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit' Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Volusia County..</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Although as printed in the General Statutes of 1900, Section 1969, relating to discovery in ejectment, refers to Sections 1971 and 1972 of such statutes, which have no relevancy whatever to the subject matter of such Section 1909, in the Copy of such General Statutes on file in the office of the Secretary of State, which was the one actually adopted by the Legislator, such Section 1969 refers to Sections 1531 and 1535, which regulate the procedure in regard to interrogatories and provide that the answers given thereto “shall be evidence against, but not for the party making them.” The Section as it appears in the copy filed in the office of the Secretary of State, and not as it appears in the printed and published volume must govern.</p> <p>2. Where a defendant in an action of ejectment has, without objection, filed answers to interrogatories propounded under the statutes, seeking a disclosure of the title upon which such defendant relies, which answers are made by the statute evidence against such party, and the defendant waits until the case is actually being tried and then seeks by motion to amend one of such answers by making a material change therein, no reason or excuse being offered for the delay, such motion is properly denied.</p> <p>3. An objection to the admission in evidence of a certified copy of a deed on the ground that such deed was “not acknowledged as required by law, in that the acknowledgment thereto did not recite that the grantors in such conveyance were known to the officer taking said acknowledgment,” is properly overruled, when it appears that the statutes in force at the time such deed was acknowledged contained no such requirement.</p> <p>4. A substantial compliance with the requirements of statutes governing the acknowledgment or proof of the execution of instruments for the purpose of having them recorded is sufficient.</p> <p>5. Where the plaintiff.and defendant in an action of ejectment claim through a common source of title, errors committed in allowing improper evidence of such common title are harmless.</p> <p>O. Where the evidence fully makes out the plaintiff’s case, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff’s favor is proper.</p>

<p>Writ of error to the Circuit Court for Duval County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Duval County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Where one of three persons, who are members of a partnership, which is in possession of land under a lease from another party, acquires an adverse title to that of the lessor, and undertakes to prosecute an action of ejectment for his benefit in the name of the grantor of such adverse title, without surrendering possession of the land to the lessor, the rule that a lessee is estopped to dispute his lessor’s title applies.</p>

<p>Writ of error to the Circuit Court for Marion County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where a cause of action set forth in an amended pleading is new, difference and distinct from that originally set up, the new pleading is equivalent to the bringing of a new action, and the statute of limitations runs against the new cause of action to the time it is introduced into the pleading.</p> <p>2. The statute and rules allowing amendments do not gire to such amendments the benefit of the legal fiction of relation back to the beginning of the action, so as to deprive a defendant of a right to the bar of a statute of limitations.</p> <p>S. If an amendment of a complaint introduces new matter or a new claim, as to which the statute of limitations has perfected a bar, the bar cannot be avoided by the legal fiction of relation by referring the amendment to the commencement of the suit.</p> <p>4. Where a common law right of action is without leave of court substituted for a wholly different statutory right of action after the common law right of action is barred by the statute of limitations, an order of the court striking the amendment will not be reversed.</p>

<p>1. Even if the description of territory incorporated as a municipality by a special law, when properly construed, would cover non-contiguous lands, the law is not thereby rendered unconstitutional</p> <p>2. Where the description of territory incorporated as a municipality by a special law does not utterly fail to cover some area, and the desseription is not so uncertain as to make it impossible to determine the territory intended to be included in the municipality, the law is not void for uncertainty of description.</p>

<p>Writ of error to the Court of Record of Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>It is error to strike a plea of “did not promise as alleged” in an action on a simple contract other than a bill or note.</p>

Writ of error to the Circuit Court for Hillsborough ■ County. The facts in the case are stated in the opinion of the court'.

<p>Where an action at law is brought against several persons as late co-partners on a cause of action contracted while the part- . nership was a going concern under Sec. 1404, General Statutes of 1906, the service of process upon one member of the late firm, is a valid service authorizing a judgment against the late firm, binding the firm property and the individual property of the member who was actually served.</p>

<p>In an action seeking to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, where it is conclusively established by the evidence that the plaintiff, of her own volition- and for ■ her own convenience, went to the freight dock of the defendant steamship company, a most unusual place for ladies or passengers, or the public generally to go, for the purpose of receiving a package which the plaintiff’s mother had sent her by one of the employes of the defendant, who worked in the engine-room of the steamer and who brought such package not in his official capacity but merely as a friend, it not being billed to plaintiff and there being no charges of any kind thereon, and that while waiting on the dock for such employe the plaihtiff was struck and injured by a barrel of rosin falling through the open door of a box ear, a most unusual occurrence, while such car was being pushed forward in the usual way by some negro men, and the evidence fails to show any wantonness or wilfulness, or even gross negligence on the part of the defendant toward the plaintiff, who was then a trespasser, or at most a licensee, there could be no recovery, and it was error for the trial court to refuse to direct a verdict for the defendant.</p>

<p>Where there is a failure to prove any substantial damages that may be recovered under the declaration, a judgment for the defendant will not be reversed.</p>

<p>Writ of error to the Circuit Court for Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Crude turpentine that is collected in cavities or boxes cut in the pine trees which supply it, is personal property for the unlawful conversion of which trover may be maintained.</p> <p>2. Where crude turpentine is unlawfully but not wilfully taken from boxes cut in pine trees, the measure of recovery in trover is the value of the crude turpentine at the time of conversion with interest; and the conversion takes place when the product is unlawfully taken from the boxes or other receptacles on the trees.</p> <p>3. In an action of trover to recover damages for the unlawful but not wilful conversion of crude turpentine by taking it from the trees that produce it, a judgment for a conversion of crude turpentine of a stated value in spirits of turpentine and rosin with interest is erroneous, since the proper measure of damages is the value of the crude turpentine at the timé of conversion with interest.</p>

<p>1. Where a bill of lading stipulates that the value of property lost or damaged in shipment shall be computed as of the place and time of shipment, it is not reversible error to charge the jury that the value should be computed at the time and place of delivery when the evidence is that the value was the same at both places.</p> <p>2. Where evidence is when offered not subject to the general objection that it is “immaterial and irrelevant,” but it becomes irrelevant by the subsequent introduction of evidence! if there is then no motion to strike it, the party objecting to it cannot complain of it in the appellate court.</p> <p>3. Where matters are improperly incorporated in a transcript on writ of error, the cost thereof will be taxed against the party requiring it to be included in the transcript.</p>

<p>1. The liability of a warehouseman for the loss of goods is different from that of a common carrier.</p> <p>2. Where a judgment is obtained against a railroad company as a common carrier for the loss of goods and the evidence shows that the goods were held by the railroad company not as a common carrier but as a warehouseman, and liability as warehouseman was not proven, the judgment will be reversed.</p> <p>3. Where the consignee who holds the bill of lading does not refuse to tafce the goods but directs the carrier to hold them at destination pending negotiations between the consignee and consignor as to the goods, and this holding is in effect acquiesced in by the consignor, if the goods are lost while being so held, the liability of the railroad company is that of warehouseman and not of common carrier.</p>

<p>1. Where in an action brought by endorsees of a note, there is a plea alleging a failure of consideration for the note, and breach of warranty, of which the endorsees had knowledge at the time of the endorsement to them, the plea is not obnoxious to demurrer because of the failure to allege such knowledge.</p> <p>2. Where an action is brought on a joint and several note against all the makers, who appeared and pleaded and in the midst of the trial the plaintiff elected to dismiss the action as to two of the makers, the effect of this action was to discontinue the suit as to all the defendants, because the plaintiff might have sued them all jointly, or each of them severally, but might not sue a part of them jointly, under the circumstances mentioned.</p>

<p>This is a case of original jurisdiction.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Tliis is a case of original jurisdiction.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>An action at law was brought by the State to recover a penalty imposed by the Bailroad Commissioners for the violation of the provisions of Section 2907, General Statutes of 1906, which requires that all contracts and agreements between any and all railroads, etc., as to use and transportation of cars, etc., shall be submitted to said Bailroad Commissioners for inspection and correction that it may be ascertained as to whether or not they are reasonable and just and will insure prompt delivery of freight and passengers to points of destination, etc. The declaration alleges that the contract involved is one which does affect the public which is interested in the charges made for the use of cars, in the provisions for the speedy and prompt return of cars and the prompt delivery of freight, and alleges a compliance by the Bailroad Commissioners with the provisions of the Statute: Held, That this declaration states a cause of action and is not subject to demurrer.</p>

<p>Where a stockholder of a dissolved corporation seeks to recover his share of assets after the corporate debts are paid, and the method of computing the amount of the distributive shares is contested, the remedy is in equity.</p>

<p>1. Where a transcript on writ of error is authenticated under Special Rules 1 and 3 of Supreme Court Rules, and the trial judge does not certify that the bill of exceptions contains all the evidence adduced at the trial, the sufficiency of the evidence to sustain the verdict will not be considered by the Supreme Court.</p> <p>2. Where all the evidence adduced at the trial is not duly shown to be before the appellate court, the inadequacy of the damages allowed cannot be considered.</p> <p>3. Under a plea of the general issue in an action for assault and battery, circumstances may be shown in evidence in mitigagation of punitive damages, but not of actual damages.</p>

<p>In an action for the conversion of logs alleged to have been unlawfully cut from land which had been in possession of the plaintiff for twenty years under a patent from the United States Government, the court commits no reversible error in striking from the evidence, a deed of the land made seventeen years before the trial by the plaintiff to a third party in trust, when the defendants do not claim under such deed, no trust purposes are expressed therein and such third person has never been in possession of the land or ever in any way claimed or exercised ownership over it.</p>

<p>1. _ Where a written contract between two parties, even though it be under seal, provides among other things for a sale of side boards for the period of three years with the privilege of five, states the details of delivery, thickness- &c., and provides that payment therefor, shall be made on the first and not later than the 10th, of each month, for stock furnished for the previous month, to recover for such items, the plaintiff is not obliged to resort to an action of covenant, but may recover for them under the common counts in assumpsit.</p> <p>2. Under a declaration upon an account stated, the cause of action is the agreement of the parties to pay the amount found to be due upon the accounting, and this may consist of various items and may include some due upon a written instrument as well as upon oral agreement, and the evidence to support the account may be wholly in writing or wholly by parol, or in part by writing and in part by parol</p>

<p>Writ of error to tlie Circuit Court for Washington County.</p> <p>The facts in the c.ase are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of the: court.</p>

<p>Where an execution is issued by the County Judge on a judgment rendered by the County Judge as such in an ordinary action in assumpsit, when there is a county court in the county, and such execution is levied upon real estate, the judgment on which the execution issued being void, and the remedy at law inadequate, equitable relief may be had against the levy of the execution on lands.</p>

<p>Appealed from the Circuit Court for Monroe County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court -for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. In tb exercise of the police power of the State it is competent for the legislature by valid statutes to provide for the correction, care, custody, protection aud maintenance of children who have no. sufficient parental control or maintenance to keep them from being a menace to the public or an injury to themselves.</p> <p>2. • The legislature has authority to use all means consistent with organic law to effectuate the exercise of a police power, and a broad discretion as to the means to be used should be accorded, to the law-making power, the only practical limitations being those contained in the provisions and principles of the constitution.</p> <p>3. .The authority conferred upon the county judge by Chapter 6216, xVets of 1911, is judicial in its nature aud may be regarded as being fairly within the constitutional power to issue letters of guardianship, and within the authority contemplated by the constitution in giving to the Circuit Courts supervision and appellate jurisdiction of matters arising before the county judges pertaining to the estates and interests of minors.</p> <p>4. The purpose of Chapter 621G, Acts of 1911, is not to create a judicial tribunal unknown to the constitution, or to confer authority in violation of the constitution. The authority conferred should be construed and exercised with reference to applicable provisions of the organic law.</p> <p>5. The provision of Chapter 6216, Acts of 1911, that the compensation of the Probation Officers provided for by the chapter shall be fixed by the county commissioners violates Section 27 of Article III, of the constitution and is inoperative.</p> <p>6. If a duly enacted statute contains provisions that are invalid because in conflict with organic law, and such invalid portions may be severed, and the remainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the legislature, and it does not appear that the statute would not have been enacted without the invalid portions of the Act, the invalid portions should be disregarded and the valid portions enforced if it can be done to effectuate the legislative intent.</p> <p>7. As Chapter 6216 gives to the county judges no jurisdiction to try persons charged with crime, questions of jury trial, of compulsory attendance of witnesses or of second jeopardy-are not involved in the enforcement of the statute. .</p> <p>S. If a person is unlawfully deprived of his liberty by unlawful or arbitrary confinement or otherwise, the remedy by habeas corpus may be speedy and adequate.</p> <p>9. The constitution gives to the Circuit Courts supervision and appellate jurisdiction of matters arising before county judges pertaining to the estates and interests of minors, which includes matters other than those relating to the property rights of minors.</p>

<p>1 Owing to the confidential and fiduciary relation between an attorney and his client and to the influence of the attorney over his client growing out of that relation, courts of law, and especially of equity, scrutinize most closely all transactions between an attorney and his client.</p> <p>2. To sustain a transaction of advantage to himself with his client, the attorney has the burden of showing, not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to tbe client as it should have been had the client dealt with a stranger.</p> <p>3. Independent of all fraud, if an attorney shall take what is in substance a gift from his client, while the relation subsists, though the transaction may be, not only free from fraud, but entirely moral in its nature, the law casts upon the attorney the burden of showing that the transaction was voluntary and fair on the part of the client and that he acted with full warning and perfect knowledge of the consequences of his act. Contracts between attorney and client when not entirely equitable and fair may be voidable at the election of the client.</p> <p>4. The whole burden of establishing by clear and convincing evidence the fairness of an agreement purporting to convey a property right from a client to his attorney, and that it was made upon full and adequate consideration, is east upon the attorney.</p> <p>5. The written instrument set out in the opinion prepared by the attorney at his own instance and signed by the parties thereto while the relation of attorney and client existed between them with reference to the subject of the agreement, when considered in the light of the law as to conveyances and as to contracts between attorney and client, and in view of the evidence as to lack of full knowledge by the client as to its effect, does not create a partnership or a trust in the lands or in the profits from lands referred to in the instrument.</p> <p>6. In view of the relation of attorney and client existing between the parties, of the character of the instrument set out in the opinion, and of the evidence that the client did not have full knowledge and understanding of the effect and consequences of the agreement prepared by the attorney at his own instance without adequate consideration furnished on the part of the attorney, the agreement is not enforceable and should be cancelled.</p>

Appealed from the Circuit Court for Escambia County. Statement. The following instrument with due proof of the execution thereof, was filed with the County Judge of Escambia County and offered for probate as the last will and testament of Emily C. Wright, deceased: “I, Emily C. Wright, of the City of Pensacola, State of Florida, being of sound mind and memory, do make and publish this, my last Will and Testament, revoking all others: — ■ 1.

<p>On Rehearing.</p> <p>1. Where an instrument in writing which states that it is made as the last will and testament of the testatrix, expresses a purpose to change the disposition of property made by a previous will, and makes specific and definite disposition of property without ambiguity or imperfection in its terms, it is when duly signed by the testatrix a valid will of the personal property even though it contains ineffectual provisions relating to real estate because the instrument was not attested by witnesses as is required for wills of real estate.</p> <p>2. The testamentary intent expressed in a valid.will of personal property may not be impugned by mere allegations that the instrument was not intended as a will, and that it was not signed with testamentary intent, but was intended merely as a memorandum to enable the attorney to prepare another will, at least in the absence of a clear and positive showing that the instrument impugned was lawfully executed to effect a different or collateral purpose wholly inconsistent with the intent expressed in the instrument, there being no suggestion of a change of testamentary intent, or of fraud, mistake, imposition, incompetency, illegality or other infirmity in the instrument or in the making and execution of it.</p> <p>S. Even though a testatrix may have contemplated the execution of a will to be prepared by her attorney, if the instrument signed by her as her will, and sent to her attorney to use in preparing a more formal document, is a sufficient will of personalty, the mere fact that another will was prepared and was in her possession so that she could have executed it before her death, would not affect the validity of the instrument signed.</p>

<p>Appealed from the Circuit Court for Citrus County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Equity will enforce tbe specific performance of a contract for tbe sale of land when tbe price was a fair one when tbe contract was made and no advantage was taken of tbe defendant.</p> <p>2. As against a general denial in an answer the burden is upon the complainant to prove, by at least a preponderance of sustaining proofs, tax liens upon the property, the existence and validity whereof depend upon matters of public record.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Sumter County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where C. loaned to R. and four others, $5,000.00, at 8% interest evidenced by a note for that amount due ninety days after the date of said note {vis. on the 1st of July, 1907), secured by a mortgage on real estate, which money was borrowed from C. for the purpose of going into a real estate speculation, and it was agreed at the time of said loan that C. in addition to the 8% interest should have one-third interest in the profits, and where it appears that on the 1st of October, 1907, when said note fell due that R. and his associates were unable to pay the note, and as a consideration for a ninety day extension they gave C. three notes aggregating $1,500.00, payable in six, nine and twelve months, and it was agreed that these three notes were to satisfy C.’s claim for profits, when at that time there were no profits, the transaction is usurious under the statute of Florida.</p> <p>2. Where there is a note for $5,000.00 bearing eight per cent, interest, and three $500.00 notes which represent a usurious consideration, all involved in the same foreclosure proceedings, there is no error committed by the Circuit Judge in applying payments which were made on the $5,000.00 note, and in refusing to allow interest on the principal debt of $5,000.00.</p>

<p>Appealed from the Circuit Court for Hamilton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Under the Statutes of this State a mortgagee acquires only a specific lien upon the property of the mortgagor that is covered by the mortgage, and an instrument of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, which upon its face conveys title to property, may be subject to the provisions of the statute that it “shall be deemed and held a mortgage,” if by extrinsic facts the statute is shown to apply; and in cases of doubt the instrument may when justice re- , quires it be held to be in law a mortgage.</p> <p>2. The relations existing between the parties at the time of its . execution may be considered in determining whether a deed of conveyance of land absolute on. its face was intended to operate as a mortgage to secure the payment of a debt.</p> <p>3. If when an absolute conveyance of property is made it is in legal effect a mortgage it remains a mortgage.</p> <p>4. Where a conveyance of property is absolute on its face, the burden of showing that it was when executed intended to be a mortgage to secure the payment of money, is upon the grantor.</p> <p>5. The conduct of the parties and the circumstances under which the instrument was executed may be shown in evidence as bearing upon the intent and purpose of the parties to the transaction. The mere secret intention of either party as to the purpose of the instrument will not control.</p> <p>6. If from all the facts and circumstances of the case it appears that the real purpose o'f the parties to an absolute conveyance of property was to secure the payment of money then due, and not the actual extinguishment of the debt, the conveyance will be regarded as a mortgage. In such a case the mortgagee may foreclose, or the mortgagor may redeem.</p> <p>7. When an unascertained debt exists which is not clearly extinguished, and the value of property conveyed is considerably greater than the probable total debt, and there is evidence that the grantor intended a conveyance to be merely a security for the debt, and the attending circumstances were such that the grantee must have understood the conveyance was intended by the grantor as security for the debt, the instrument may be held a mortgage, especially when by so doing justice to both parties will be best subserved.</p> <p>8. Where lands of the wife that had been conveyed by her are sought to be redeemed by her upon allegations that the conveyance was intended to be a mortgage, the intent with which the instrument of conveyance was executed by the grantor and received by the grantee should be ascertained and must control in adjudicating the rights of the parties</p> <p>9. While competent parties should be held to the consequences of acts deliberately taken by them, such as the execution of deeds affecting the title to real estate, yet the circumstances of tlie parties and tlie conditions under which deeds are executed should be considered in determining the effect the parties intended the deeds to have under the laws of the State where the lands are located.</p> <p>10. Where in order to relieve her husband of embarrassment a married woman executes to her husband’s creditors a conveyance of her separate property to secure the payment of the husband’s indebtedness, and the circumstances are such that the creditor must have known that was the purpose of the wife, the conveyance will be held to be a mortgage and the property may be redeemed by the wife upon the payment of the indebtedness.</p>

<p>In case of a doubtful dedication of a public street by plats, an easement will not be declared in favor of one who has himself fenced off the public from the locus m quo, which has had buildings placed thereon by the supposed dedicator and others for more than twenty-five years.</p>

<p>Appealed from the Circuit Court for Palm Beach County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where there are specific allegations that the enforcement of rates prescribed by governmental authority for furnishing gas and electricity to the inhabitants of a city will cause a multiplicity of suits and irreparable injury to the gas company so that the remedy at law is apparently inadequate an injunction may be an appropriate remedy if the rates are not lawfully prescribed.</p> <p>2. The provisions of Section 8, Article VIII and Section 30, Article XVI of the Constitution afford ample authority for the legislature by statute to empower the duly constituted authorities of a municipality to prescribe by valid ordinance just and reasonable rates to be charged for furnishing gas and electricity to persons within the city, by persons or corporations lawfully engaged in rendering such public service.</p> <p>3. The provision of Section 2 of Chapter 5806, Acts of 1907, that “The Mayor and City Council shall have power by ordinance, to fix the maximum rate or rates to be charged for gas and electric lights, and all other public utilities, whether owned by the municipality or by any individuals, firm or firms, corporation or corporations,” is embraced within the “one subject and matter properly connected therewith,” which is “expressed in the title” of the act being “An Act ..........extending and enlarging the territorial limits and powers of the City of Gainesville,” as required by Section 16, Article III of the constitution.</p> <p>4. Authority to fix maximum rates for furnishing gas and electricity, includes any authority that may he fairly implied as incidental to or reasonably necessary for the effectiveness of the power expressly given. This includes the fixing of reasonable rates for connections and the placing of meters &c.</p> <p>5. Where practically all the municipal powers given to a city by legislative act are conferred upon “the mayor and city council” to be exercised “by ordinance,” authority given “the mayor and city council,............. by ordinance’ fix the maximum rate” for furnishing gas to the inhabitants of the city, is to be construed with reference to the authorized method of adopting ordinances; and the authority under such conditions may be exercised by an ordinance passed by a requisite vote of the city council over the mayor’s veto.</p> <p>6. The publication of a city ordinance for a given length of time after its adoption may not be essential to the validity of the ordinance when not controlled by statute.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Where B. executes to W. a note and a mortgage upon land to secure its payment, and W. assigns the note and mortgage before maturity to B\ and B. thereafter conveys the land to G. who pays W. the balance he claims to be due on the note but does not procure the surrender or cancellation of the note, G. cannot assert Ms payment to W. in defense of a foreclosure suit by F. who is the holder of the note and mortgage, there being no evidence that W. was authorized by F. to receive the payment made to him by G., or that W. was authorized to cancel the mortgage of record as he did after the conveyance from B. to G. In such a case the loss to G. results from his own failure to have the note surrendered or to ascertain its real owner.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>The facts in the case are stated in the opinion of the court.</p>

<p>When a demurrer has been filed to a bill of complaint, an ex parte allowance of an amendment to the bill to meet one ground of the demurrer, does not justify a decree pro eonfesso.</p>

<p>Section 60, Chapter 3681, Acts of 1887, which provides that no suit or proceeding shall be commenced by a former owner or occupant &c., to recover the possession of lands sold for taxes unless commenced within four years after the date of sale, does not embrace a suit to set aside a tax deed as a cloud on the title of the owner, who has all the time remained in the possession of the land embraced in the tax deed.</p>

<p>Foreclosure of Mortgage — Demurrer to Whole Bill— SUBROGATION' — FORECLOSURE De NOVO WHEN NECESSARY Parties Have Been Omitted From First Foreclosure — Usury Cannot Be Set Up as a Defense to a Foreclosure Suit by a Party Who Has Assumed the Payment of ti-ie Mortgage, and Subsequent Purchasers Through Him Are Likewise Estopped to Make Such Defense— Estoppel.</p> <p>1. A general demurrer to the whole bill for want of equity should be overruled if there is any ground for equitable relief in the bill, and this even if there are any number of grounds of special demurrer to parts of the bill.</p> <p>2. The purchaser of property at a foreclosure sale for the full amount due on the decree of foreclosure, when, for any reason the foreclosure proceedings are imperfect, irregular or void, becomes subrogated to all the rights of the mortgagee in and to such mortgage and the indebtedness that it secured, and becomes thereby virtually an equitable assignee of such mortgage and of the debt that it secured, with all the rights of the original mortgagee, and becomes entitled to an action tie novo for the foreclosure of such mortgage against all parties holding junior encumbrances or the legal title, who had been omitted as parties to such original foreclosure proceedings under which he bought.</p> <p>3. Where a mortgagee holds two or more mortgages upon the same premises they should both be set out in the complaint and foreclosed in the same action, only one suit to foreclose both being proper.</p> <p>4. A subsequent purchaser who expressly assumes the payment of prior existing mortgages upon property that he buys, as part of the purchase price for such property, is estopped to defend against the foreclosure of such mortgage either upon the ground of usury or upon the ground of failure or want of consideration therefor, or upon any other ground.</p> <p>5. A party claiming title under one who is estopped, will also be bound by the estoppel.</p> <p>6. The courts in foreclosure proceedings have no power to release any part of the property from the lien of the mortgage by affixing thereto a sum, less than the entire sum of the mortgage, which when paid shall release or redeem such part from the lien of the mortgage.</p>

<p>Appealed from the Circuit Court for DeSoto County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from tlie Circuit Court for Pasco County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Appealed from the Circuit Court for Walton County. Statement.

<p>1. The doctrine of election of remedies does not apply to a case where a party in his first action,mistook his remedy.</p> <p>2. An allegation in a bill that the defendant is insolvent, and has no property which can be found situated in the county where he lives, subject to execution and sale, is sufficient to withstand a demurrer to the bill, based on the insufficiency of this allegation.</p> <p>3. Where it appears from me allegations of a bill that G., the defendant in the bill, bought personal property from the A. B. F. Go.; that he gave notes for the purchase money which were assigned and endorsed to the complainant in the bill, upon which there is still a considerable sum due; that complainant by a mistake of remedy brought an action of replevin for the recovery of the personal property and was non-suited, and that G, recovered a judgment against complainant in the replevin suit for $1,400.00; that G. has sued out an execution on said judgment; that he is prima facie insolvent; and where it appears that complainant has brought an action at law on said notes and expects to recover a judgment thereon, and where complainant prays that the execution against bim may be stayed or enjoined and be may be allowed to set-off sucb judgment as be may recover on tbe notes, against tbe judgment and execution against bim, tbe bill states a case for equitable relief.</p>

<p>1.' Where the allegations' do not'show such "-a course of deaiing^ or -state o’f -affairs-betweeii-parties -as-require an--accounting -iii equity, tbe bill of complaint must stand if at all on some other equitable ground.</p> <p>2. Where fraud is not alleged and a trust is not sought to be impressed upon specific property and the remedy at law is adequate, a suit in equity on an alleged obligation not essentially equitable in its nature cannot be maintained.</p>

<p>Appealed from the Circuit Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Judgments or decrees are liens upon real estate of the defendant in the county where such judgments or decrees are rendered or recorded as required by the statutes. But under Section 1, of Article X of the Constitution, no judgment or decree or execution shall be a lien upon homestead exempted property, except for taxes or assessments, or for the purchase price thereof, or for improvements on the exempt real estate, or for house, field or other labor performed on the exempt property.</p> <p>2. A tract of land detached from or not contiguous to the land claimed as a homestead is not a part of the homestead exemption.</p> <p>3. The statutes authorize courts of equity to set apart homestead exemptions and to enjoin the forced sale of exempt property.</p> <p>4. Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home. But the law should not be so applied as to make it an instrument of fraud or imposition upon creditors.</p> <p>5. The exemptions from liens and forced sales accorded by the constitution to the head of the family residing in this State do not require the owner of the exempt property to be the sole owner.</p> <p>6. Where the ancestor dies at the home on land owned by her leaving several children as her heirs, and the month after her death one of her sons removes with his family from an adjoining county upon the land in which he had a coparcener’s interest and claims a homestead exemption therein, the land cannot subsequently during his occupancy of it as his homestead, be sold under an execution issued on a judgment obtained against the son before his mother’s death.</p>

<p>Where an appeal is taken from a decree which is in whole or in part other than a money decree and the amount and condition of a supersedeas bond is not fixed by a Circuit Judge, and the bond is not duly executed, approved and filed, within thirty days after the decree is rendered and recorded, there is no supersedeas, in the absence of an order to that effect by the Supreme Court or a Justice thereof.</p>

<p>Appealed from the Circuit Court for DeSoto County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from tbe Circuit Court for Brevard County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Taylor County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Where a bill for divorce filed by a wife against her husband alleges acts of violence against the wife and a long continued course of abuse accompanied by foul epithets addressed by the husband to her, by means of which her health is affected, her life made a burden, and the performance of marital duties by her made impossible, and states all the jurisdictional facts, a demurrer thereto is properly overruled.</p>

<p>1. A court of equity will reform a written instrument when’by mistake it does not contain tbe true agreement of tbe parties, only when tbe evidence of tbe mistake is full and satisfactory.</p> <p>2. An agreement in writing should be regarded as the sole expositor of the intent of the parties until the contrary is established beyond reasonable controversy; and reformation will not be decreed when'the evidence is loose, contradictory or equivocal, there being no fiduciary relation or overreaching between the parties dealing with each other upon a substantially equal footing.</p> <p>3. Wherever the evidence is conflicting and the finding of a chancellor does not clearly appear to be erroneous, it will not be disturbed.</p>

<p>3. The enforcement by a court of equity of a specific performance of a contract is not a matter of right in either party to such contract, but a matter for the exercise of a sound judicial discretion by the court, and should only be exercised when a decree for specific performance would be strictly equitable as to all the parties under the facts as they exist.</p> <p>2. When three persons, a brother and two sisters, all married, who own by inheritance a large' body of land, sign and seal a contract to sell and convey said lands en bloc, for a specifled sum of money, and it does not appear tliat they intended to sever their interests in such sale and conveyance, but the contrary, and where the contract was not executed by the married women in accordance with Sections 2594 and 2462 of the General Statutes of 1906, and is not enforceable against them, a court of equity will not split the contract, and compel a specific performance of it by the brother alone, or by him and the husbands of his sisters.</p>

<p>Appealed from the Circuit Court for Hamilton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. A vendor’s lien upon land conveyed by him does not result from agreement, but it is a right given by implication of law and enforceable in equity where the vendor is entitled to it.</p> <p>2. Where land is conveyed and a note is taken for the purchase price without any collateral security or contract mortgage upon the property to secure the payment of the purchase price, the law by implication gives to the vendors a right in the nature of a lien upon the property for the purchase price, which right, if not waived or abandoned, may be enforced in equity at any time before the remedy by action on the note is barred by the statute of limitations.</p> <p>3. A vendor’s lien is a right created by law as an incident to the debt, and ceases to be available in equity when the debt , is not enforceable at law.</p> <p>4. Where in a suit to enforce a vendor’s implied lien it clearly appears by the specific allegations of the bill of complaint admitted by the demurrer, that the remedy for recovery of the debt for the purchase price of land conveyed, is barred by the statute of limitations, the vendor’s implied lien will not be enforced; and in the absence of other equities to sustain the • bill of complaint, it is subject to appropriate demurrer.</p>

<p>Negotiable Note — Secured by Mortgage — Payment of — ■ to Whom Must be Made to be Effectual.</p> <p>1. A mortgage executed as security for the payment of a negotiable promissory note is a mere incident of and ancillary to such note. When it comes to the payment thereof, the rights of the parties thereto, as well as of third persons, are governed by the rules relating to negotiable paper; in other words, payment to anyone other than the holder of the negotiable instrument is at the risk of the payer, and is binding upon the holder of the paper only where express or implied authority to receive such payment is established by the person making the same. Hence, payment of a negotiable note secured by mortgage by the mortgagor or his grantee, where made to the original mortgagee who is not in possession of the note and mortgage, is not binding upon an assignee thereof before maturity who was in possession of the papers at tlie time of such payment, unless lie had expressly or impliedly authorized such payment.</p> <p>2. The duty of a maker of a negotiable note to see that the person to whom he pays it has it in his possession before making the payment is not affected by the fact that the note was on its face payable at the office of the person to whom he makes the payment.</p> <p>3. The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time of such payment, or to such owner’s authorized agent. If the recipient of the money is not actually authorized, the payment is ineffectual, unless induced by unambiguous direction from the owner, or justified by actual possession of the note. This rule applies generally to all negotiable paper, independently of the existence of any mortgage or other security.</p>

<p>Appealed from the Circuit Court for Gadsden County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Appealed from the Circuit Court for Escambia County. Statement. .

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. By treaty of February 22nd, 1819, the Kingdom of Spain ceded “to the United States in full property and sovereignty, all the territories ................ known by the name of East and West Forida,” with an expressed provision that all the grants of land made by Spain before January 24th, 1S18, in said territories shall be ratified and confirmed to the persons in possession of the lands.</p> <p>2. Under the Treaty of February 22nd, 1819, the United States acquired the ownership of all the swamp and overflowed lands in the area now constituting the territorial limits of the State of Florida that had not previously been granted by Spain, and the admission of the State of Florida into the Union by the Act of Congress approved March 3rd, 1845, did not affect the proprietary rights of the United States in the lands within the State that have been ceded to the United States by Spain where such lands did not constitute the beds or shores of the navigable waters of the State.</p> <p>3. Tbe disposition of tbe swamp and overflowed lands granted to tbe State by Act of Congress of September 28, 1850, is within the legislative discretion, the obligation of the sovereign State to observe the condition of the grant that the lands “shall be applied, exclusively, as far as necessary, for the purpose of reclaiming said lands by means of levees and drains,” resting only in the sovereign relations of the two governments.</p> <p>4. In recognition of the purpose of the grant by the United States to the State of the swamp and overflowed lands within the State, the legislature by Chapter 610, Acts of 1855, placed the lands in the “Internal Improvement Fund of the State of Florida,” the lands being irrevocably vested in five trustees who are State officers, and their successors in office, “to hold • the same in trust for the uses and purposes,” stated in the act, among such uses and purposes being the requirement of Section 16 of the Act, Section 620, Gen. Stats., that the said trustees shall fix the price of the lands and make such arrangements for the drainage of the lands as in their judgment may be most advantageous to the fund and the settlement and cultivation of the lands.</p> <p>5. The provisions and purposes of Chapter 610, Acts of 1855, Sections 616, .617 and 620, General Statutes, and Chapter 3441 Acts of 1883, Sections 624, 625 and 626 General Statutes, are not inconsistent or repugnant, but such provisions are intended to operate together for the purpose of securing the drainage, settlement and cultivation of the swamp and overflowed lands that are held by the Trustees of the Internal Improvement Fund under the Act of 1855.</p> <p>6. While the Act of 1883, (Sections 624, 625, and 626 of the General Statutes of 1906) is in force, it is the duty of the trustees to comply with its provisions where there are lands held by them that are subject to such provisions.</p> <p>7. Section 16, Chapter 610, Acts of 1855, Section 620 of the General Statutes of 1906, imposes upon the Trustees of the Internal Improvement Fund the duty to make - such arrangements for the drainage of the swamp and overflowed lands as Is most advantageous to the fund and the settlement and cultivation' of the lands.</p> <p>8. The duty of the Trustees of the Internal Improvement Fund to fix the price of the swamp and overflowed lands held by them and to make arrangements for the drainage and settlement and cutlivation of the lands, is recognized by -Chapter 3326, Acts of 1881, Section 628 General Statutes, as well as in special acts granting portions of such lands 'to railroad and canal companies and others for different purposes of internal improvement.</p> <p>9. The provisions of Chapter 3451, Acts of 1883, Sections 024, 025 and 626, General Statutes, do not impair the statutory duties of the Trustees of the Internal Improvement Fund to fix the price and make arrangements for the drainage, settlement and cultivation of the swamp and overflowed lands of the fund, except that actual settlers have the advantages , stated in the act in purchasing eighty acres each of such lands as are subject to the terms of the act of 1883.</p> <p>10. When the Trustees of the Internal Improvement Fund have in effect appropriated or applied lands to the purposes of the trust under the Act of 1S55, to drain the swamp and overflowed lands of the fund, such lands are not subject to occupancy and purchase under the act of 1883, Sections 624, 625 and 626 of the General Statutes.</p> <p>11. If the matter contained in an answer in an equity cause is relevant or can have any influence in the decision of the subject-matter of the controversy, it is not impertinent.</p> <p>12. In a proceeding to require the Trustees of the Internal Improvement Fund to make a conveyance of 80 acres of land under the Act of 1883, Sections 624, 625 and 626 of the General Statutes, where there are averments in the answers of the defendants which in effect state that prior to the entry under the Act of 1883, the trustees had lawfully appropriated or pledged or bound the particular lands for the purposes of the trust to drain the lands under the Act of 1855, Section 620 of the General Statutes, exceptions to such averments upon the grounds that they are impertinent and irrelevant should be overruled.</p> <p>13. Where debts or land grants or contracts existed as “legal obligations” against the swamp and overflowed lands held by the Trustees of the Internal Improvement Fund when the Act of 1903, Sections 869, 870 and 871 of the General Statutes first became effective, such obligations have priority over the disposition of the fund as provided in said Sections 869, 870 and 871.</p> <p>14. Whatever may be the legal effect of Sections 869, 870 and S71, of the General Statutes, which require the proceeds of swamp and overflowed land to be applied to the construction of hard roads, such sections do not of themselves render impertinent averments in an answer that swamp and overflowed lands which have been applied to the trusts to drain under the act of 1855, Section 620 General Statutes, are not subject 'to sale under the Act of 1883, Sections 624, 625 and 626 General Statutes.</p>

<p>The statutory authority of Trustees of a Special Tax School District with reference to schools in the district is of supervision only, and does not include a right to lease the school property.</p>

<p>Appealed from the Circuit Court for Leon County.</p> <p>Tbe facts in the case are stated in the opinion of tlie court.</p>