Volume 77 — Florida Reports

<p>Writ of Error to Circuit Court for Broward County; H. Pierre Branning, Judge.</p>

<p>Appeal from Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>Appeal from Circuit Court for DeSoto County; F. A. Whitney, Judge.</p>

<p>A Writ of Error to a Judgment in the Circuit Court within and for the County of Jackson C. L. Wilson, Judge.</p>

<p>Writ of Error to Circuit Court for Brevard County; J. W. Perkins, Judge.</p>

<p>Writ of Error to Court of Record for Escambia County; C. M. Jones, Judge.</p>

<p>An appeal from a decree of the Circuit Court within and for the County of DeSoto; John S. Edwards, Judge.</p>

<p>An appeal from a decree of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>1. Section 1 of Article 9 of the Constitution of Florida, -prescribes that the Legislature may except from taxation such property -as may be exempt by law for municipal, educational, literary, scientific, religious and charitable purposes. Paragraph 3 of section 4 of Chapter 5596, Acts of 1907, provides that such property of educational,- literary, benevolent, charitable and scientific institutions within this State as shall be actually occupied and used solely for the -puropses for which they have been organized, shall be exempt from taxation. Under the provisions of this Statute, property belonging to an individual that is not being used solely for school purposes, but is also being used by such individual as his home for living quarters and for uses directly connected with the family, is not exempt from taxation. It was not the intention, of the Legislature to exempt from taxation property used for educational purposes, and other purposes jointly.</p> <p>2. Under the law all real and personal property in the State, not expressly exempted therefrom, is subject to taxation, and all laws exempting property from taxation should receive a strict construction, and no property should be held to be within the exemption unless it is clearly within the terms of the Statute granting immunity from taxation.</p> <p>3. Section 16 of Article 16 of the Constitution of Florida, has no applicability to this case.</p>

<p>A Writ of Error to the Circuit Court for Santa Rosa County; A. G. Campbell, Judge.</p>

<p>1. The method of determining a question of the removal of a county seat being left to the Legislature, there is no constitutional implication giving the courts jurisdiction to determine contests in such elections except in so far as remedies may be afforded independent of Statute.</p> <p>2. Mandamus lies to compel tlie performance of the ministerial duty to correctly canvass election, returns as made. But questions of illegality or fraud in the conduct of an election already held, or of illegal voting or the like cannot in general be determined in ordinary mandamus proceedings.</p>

<p>A Writ of Error to the Circuit Court for Seminole County; J. W. Perkins, Judge.</p>

<p>An appeal from a decree of the Circuit Court within and for the County of Hernando; W. S. Bullock, Judge.</p>

<p>A writ of error to a judgment of' the Circuit Court within and for the County of Orange; J. W. Perkins, Judge.</p>

<p>1. A certificate of the clerk to a transcript of the record brought to the Supreme Court on a writ of error which fails to state that the transcript contains a correct transcript of the record of the judgment, and fails to state that the transcript contains a true and correct recital and copy of all such papers and proceedings in said cause as appears upon the records and files of the clerk’s office that have been directed to be included in the transcript by the written demands of the parties, is fatally defective.</p> <p>2. In a- cause brought here by writ of error where the certificate of the clerk to the transcript is fatally defective, the writ of error will be dismissed.</p>

<p>A writ of error to a judgment of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>1. At common law the age at which persons were deemed competent to contract a valid marriage was fourteen years for the man and twelve years for the woman. And. in the absence of Statute this rule is adopted as a part of the common law of this country.</p> <p>2. Marriages by consent per verba de praesenti do not require consummation.</p> <p>3. A bill of complaint brought to annul a marriage entered into by a girl of fourteen years of age is subject to a demurrer when it alleges merely that she “knew nothing of the heavy responsibilities incidental to the marital status” and that she was “young, inexperienced, unlearned and was persuaded and induced to enter into said marriage by said defendant without reflection or consideration on her part.”</p> <p>4. Where the allegations of a bill of complaint are insufficient for an annulment of the marriage, it is not error to strike an improper part of the bill and to dismiss the bill of complaint without prejudice.</p>

<p>A writ of error to a judgment of the Circuit Court within and for the County of Jackson; E. C. Love, Judge.</p>

<p>1. Where a lessor after abandonment by her lessee of the leased premises enters upon and takes possession of the premises to protect the property from abuse and deterioration incident to abandonment, she is not precluded from recovering the rent due for the remainder of the term, as it becomes due under the lease, because of a clause in the lease which provides that on “breach of any of the covenants by the lessees herein' contained, the lessor may re-enter said premises and immediately thereupon the said term shall be determined.”</p> <p>2. Evidence examined and found sufficient to support the verdict.</p>

<p>A Writ of Error to the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>Appeal from the Circuit Court for Hillsborough County; F. M. Robles, Judge.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>A Writ of Error to the Criminal Court of Record for Duval County; J. M. Peeler, Judge.</p>

<p>1. An assignment of error that the defendant was never arraigned can not be sustained where it appears from the record that the defendant was arraigned and entered a plea of not guilty.</p> <p>2. It is well established her that a judgment of conviction will not be reversed on writ of error even if technical errors were committed in rulings on the admissibility of evidence or in charges given or refused or in other matters of procedure, where the .evidence of guilt is clear and ample and no fundamental rights of the defendant were violated, and it appears from the whole record that such technical errors, if any, were not prejudicial to the defendants.</p> <p>3. Where there is substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the record to indicate that the jury were not influenced by considerations outside the evidence, this court will not disturb the verdict.</p> <p>4. Appications for new trials upon the ground of newly discovered evidence are looked upon by courts with distrust and disfavor, and are granted only under the following restrictions: 1. The evidence must have been discovered since the former trial. 2. The party must have used due diligence to procure it on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the cause and not merely to impeach the character of a witness. 5. It must not be merely cumulative. 6. It must he such as ought to procure on another trial an opposite result of the merits.</p>

<p>An appeal from a decree of the Circuit Court for Hamilton County; D. A. Simmons, Judge.</p>

<p>An appeal from a decree of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>A writ of error to a judgment of the Circuit Court within and for the County of Volusia; J. W. Perkins, Judge.</p>

<p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>■Where the verdict is not sustained by, but is contrary to the evidence, the judgment will be reversed.</p>

<p>Under the Constitution and Statutes of this State an. appeal does not lie from an order of a court commissioner granting an injunction.</p>

<p>A Writ of Error to Circuit Court for Marion County; W. S. Bullock, Judge.</p>

<p>Where the original action was not “commenced within the time prescribed therefor” but was commenced before the cause of action accrued, Section 1715, General Statutes, has no application, where the later action was not commenced “within one year after the reversal” of the former judgment.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of DeSoto; John S. Edwards, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Lafayette; M. F. Horne, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Dade; H. Pierre Branning, Judge.</p>

<p>1. Threats oí a lawful arrest for an offense which has actually been committed is not in itself a sufficient ground for the cancellation of a mortgage which has been executed as a result of such threats, and made to secure the maker of the threats for the loss oceassioned to him by the commission of such crime.</p> <p>2 A mortgage will not be set aside because of duress exercised upon the mortgagor in its procurement, such duress not being participated in by the mortgagee.</p> <p>3 The fact that a wife was induced to execute a mortgage by fraud and deception on the part of her husband in which the mortgagee did not participate and of which he had no knowledge does not affect its validity.</p>

<p>A Writ of Error to the Circuit Court for Hillsborough County; F. M. Robles Judge.</p>

<p>Where the Statute requires every railroad company operating a railway in this State to maintain fences on both sides of its railroad “suitable and sufficient to prevent the intrusion of any cattle, horses, hogs or other domestic live stock upon its track,“.with such stock guards on both sides of a road crossing as will prevent cattle, horses, hoas or other domestic live stock entering such railroad enclosures,” and liability is imposed upon the railroad company “who has failed to erect and maintain fences,” &c. for “any and all cattle, horses, hogs or other domestic live stock which may be killed or injured by any train, engine or cars upon the track of the railroad,” and the declaration alleges that the company “wholly failed to fence its track as required,” and that two mules were by a locomotive “killed on or near its railroad track,” a plea averring that “the said mules were by parties unknown to this defendant led upon the tracks of the Seaboard Air Line Railway Company, a corporation, and there held and kept, by the parties so loading the said mules, upon the tracks of the said Seaboard Air Line Railway Company, in a deep cut on a curve, until the train of the said Seaboard Air Line Railway Company passed said point in the night, and while so passing, and without any failure of duty or fault or negligence on the part of the defendant, struck and killed said mules,” states a defense, since the liability imposed by the Statute is for stock killed by trains when such stock has intruded or entered upon the track because of the failure of the railroad company to maintain the required fence and stock guards, and not for stock killed by a passing train because it was led, held and kept on the track by the tortious act of third persons, there being no negligence of the company in the killing.</p>

<p>An Appeal from an order of the Circuit Court within and for the County of Pinellas; O. K. Reaves, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court Within and for the County of Suwannee; M. F. Hore, Judge.</p>

<p>An Appeal from the Circuit Court for Okaloosa County, A. G'. Campbell, Judge.</p>

<p>1. A stipulation entered into between parties in an equity-suit not to prosecute an appeal is binding upon them.</p> <p>2. A defendant in an equity cause against whom a decree pro eonfesso has been duly entered for failure to plead, answer or demur is precluded from contesting- the facts alleged in the bill and on appeal the only question presented is whether the final decree was a proper one to be entered admitting the facts as alleged to be true.</p>

<p>An Appeal from the Circuit Court for Santa Rosa County, A. G. Campbell, Judge.</p>

<p>An Appeal from the Decree of the Circuit Court within and for the County of Leon; E. C. Love, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court of within and for the County of Pinellas; O. K. Reaves, Judge.</p>

<p>A Writ of Errir to a Judgment of the Circuit Court within and for the County of Escambia, A. G. Campbell, Judge.</p>

<p>A Bill in Equity which contains a prayer for a subpoena against the defendants requiring them to appear and answer is not amenable to the objection that it is defective as omitting a general interrogation.</p>

<p>A Writ of Errer to the Circuit Court for DeSoto County; John S. Edwards, Judge.</p>

<p>An error in a charge may be harmless in view of the evidence showing liability as adjudged.</p>

<p>A Writ of Error to the Circuit Court for Santa Rosa County; A. G. Campbell, Judge.</p>

<p>The orders appealed from in this case are reversed upon the authority of First National Bank of Quincy v. Guyton, 72 Fla. 43, 72 South Rep. 460, and other eases cited in the opinion.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Dade; H. Pierre Branning, Judge.</p>

<p>A Writ of Error to the Circuit Court for Taylor County; M. F. Horne, Judge.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of St. Johns; George Couper Gibbs, Judge.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>An Appeal from an Order and Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court witbin and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>An Appeal from the Circuit Court for Jefferson County; E. C. Love, Judge.</p>

<p>A Writ of Error to the Criminal Court of Record for Duval County; J. M. Peeler, Judge.</p>

<p>1. The credibility of competent witnesses and the weight of legal evidence are primarily questions for the jury, and where there is some substantial competent evidence of all the facts legally essential to support the verdict and there is nothing in the record to indicate that the jury were not governed by the evidence, the refusal of a trial court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not he disturbed.</p> <p>2. The test in such cases is not what the Appellate Court thinks the jury should have done, or what such court thinks it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found the verdict that they did find.</p> <p>3. For the purpose of determining whether a charge upon a given subject is infected with error, the whole of the charge on the subject and not portions of it only should be considered.</p> <p>4. If a defendant wishes to have the jury more fully instructed upon any point in the case he should specifically request the desired instruction.</p> <p>5. Error can not be assigned upon the judge’s failure to charge upon any question of ldw unless the party desiring it shall have requested the desired instruction.</p> <p>6. The evidence examined and found sufficient to support the verdict.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Jackson; C. L. Wilson, Judge.</p>

<p>1. In a common law action where the plaintiff files replications to defendant’s pleas and goes to trial without issue joined upon such replications they will he considered waived.</p> <p>2. In a case where issue is not joined upon the replications, but evidence is offered in support and denial of the matters set up therein, the jury’s finding thereon will not be disturbed if the evidence submitted was sufficient to support such finding.</p> <p>S. Where pleas set up an immaterial issue and the parties go to trial upon such issue, the trial court should either give judgment for the plaintiff non obstante veredicto or grant a repleader, and if that course is not followed an Appellate Court should reverse the judgment if for the defendant, although it may not direct a judgment of repleader.</p> <p>4. Where the president of a bank contracts fot improvements or repairs to be made upon a building which is occupied by the bank as its place of business, and the board of directors of the bank in session authorize and empower • the president to cause such improvements or repairs to be made, such contract will be deemed to be the bank’s obligation.</p> <p>5. Where a landlord makes improvements oi* changes in- a building at the request of the tenant in possession holding under an expired lease, in consideration of the latter’s oral promise, to take a five year lease of the permises to begin at the expiration1 of the present lease which does not expire within a year from the making of such promise, the landlord may recover in an action at law from the tenant for money paid by the landlord for the tenant at his request upon the latter's refusal, to take a five year lease of the premises at the landlord’s request.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>In an action on a fire insurance policy, it is error to admit in evidence as an inventory of the goods claimed to have been burned, sheets of paper containing items copied by one person from slips made by others, when the sheets were not verified, nor supported by the original data or by testimony that the inventory was in fact taken of stock actually on hand or that the inventory is a correct statement of goods in stoock and the value thereof; and if no legal proof is made of the loss, a judgment for the plaintiff will be reversed.</p>

<p>An. Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of DeSoto; F. A. Whitney, Judge.</p>

<p>1. In determining the legality and effect of k statutory regulation the Court should ascertain the legislative intent; and if the ascertained intent will permit, the enactment should be construed and effectuated so as to make it conform to rather than violate applicable provisions and principles of the State and Federal Constitutions, since it must' be assumed that the Legislature .intended the enactment to comport with the fundamental law. •</p> <p>2. A statute must be so construed, if fairly possible, as to avoid not only the conclusion that it is unconstitutional; but also grave douSts upon that score.</p> <p>3. Chapter 7320, Acts of 1917, construed with reference to controlling provisions of organic law, does not require a railroad common carrier to render for the line haul charge an extra and added service for switching in receiving or delivering cars on its line or any side track or spur track connected therewith, when such extra or added service costs more than the ordinary or substituted service rendered to the public generally and is rendered under special circumstances, not applicable to other patrons, and the cost of the extra service is not included in the charge for the line haul.</p>

<p>1. An alternative writ of mandamus should not be issued unless a prima facie case is made by allegations in the petition showing a duty of the respondent imposed by law and a right in the relator to require its performance.</p> <p>2. Chapter 7334, Acts of 1917, is by its terms not effective as to an office, like that of Tax Collector of Duval County, or to an incumbent of that office, until the expiration of the term of the office that began in January, 1917.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Duval; D. A. Simmons, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Madison; M. F. Horne, Judge.</p>

<p>An Appeal from the Circuit Court for Lee County; John S. Edwards, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Polk; John S. Edwards, Judge.</p>

<p>1 Where an indictmen for embezzlement under the statute is not so vague, indefinite and uncertain as to embarrass the defendant, and 'is sufficient to advise the defendant of “the nature and cause of the accusation against him,” allegations that the embezzlement was “felonious” and “fraudulent,” may be harmless surplusage.</p> <p>2. Charges favorable to a defendant may not be harmful, though technically inaccurate.</p> <p>3. The legislation providing that proof of one fact shall constitute prima facie evidence of the main fact is within the general power of government to enact rules of evidence; and neither due process of law nor equal protection of the law is denied if there is a rational connection between the fact and the ultimate fact presumed, and the party affected is afforded reasonable opportunity to submit to the jury all the facts on the issue.</p> <p>4. Where the Statute defining embezzlement provides that “the failure, neglect, omission or refusal of any officer to pay over or deliver” money received “for more than thirty days after the same has been collected or received, shall be prima facie evidence of the conversion,” and there is evidence of such failure as well as positive evidence tending to show the conversion charged, the findings of the amounts unlawfully converted under the charge may be sustained.</p> <p>5. Where no material errors of law or of procedure appear a judgment of conviction will be affirmed.</p>

<p>An Appeal from the Circuit Court for Pinellas County; O. K. Reeves, Judge.</p>

<p>In this action by an employee against his employer to recover damages for personal injuries alleged to have been caused by the negligence of the employer, it does not clearly appear from the allegation of the declaration or by inference from facts alleged, that the plaintiff knew of, or from its obvious nature should have known of, and appreciated the risk arising from the work in which the plaintiff was engaged, and the declaration being otherwise sufficient, it was error to sustain a demurrer thereto.</p>

<p>In an action by an employee against an employer to recover damages for personal injuries alleged to have been caused by a wreck of a train, and the provisions of Chapter 6521, Acts of 1913, are applicable, the plaintiff employee should allege facts showing negligence of the defendant that proximately caused the injury and prove facts showing at least prima facie negligence and injury proximately resulting therefrom as alleged, before the defendant is required to prove a defense; and the charges given in such a case that do not conform to the Statute may be reversible error.</p>

<p>1. In determining whether error was committed in directing a verdict, due consideration should be given the organic right of trial by jury. Otherwise fundamental principles may be subordinated to procedure or convenience.</p> <p>2. The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same.</p> <p>8 In directing a verdict, the court is governed practically by the same rules that are applicable to demurrers in evidence.</p> <p>4. A party moving for a directed verdict, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.</p> <p>5. When the facts are not in dispute, and the evidence, with all the inferences that a jury may lawfully deduce from it, does not, as a matter of law, have a tendency to establisli the cause of action alleged, the judge may direct a verdict for the defendant. But the court should never direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.</p> <p>6. Where there is room for a differenece of opinion between reasonable men as to the proofs or facts from which an ultimate fact is sought to be established, or where there is room for such difference which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not primarily the views of the judge.</p> <p>7. In an action for negligence where there is any substantial testimony from which the jury could find the issues in favor of the plaintiff, a peremptory charge for the defendant should not be given.</p> <p>S. A case should not he taken from the jury by directing a verdict for the defendant on the evidence, unless the conclusion follows as a matter of law that no recovery can be lawfully had upon any view taken of facts that the evidence tends to establish.</p> <p>9 The credibility and probative force of conflicting testimony should not be determined on a motion for a directed verdict.</p> <p>10. The duty devolving upon the court in reference to directing a verdict on the evidence may become, in many cases, one of delicacy, and it should be cautiously exercised.</p> <p>11. Although a motion for a* directed verdict for one party may be denied, yet in the same case if the trial court is of the opinion that the verdict does not accord with the manifest weight of the evidence and the substantial justice of the cause, a new trial should be granted if duly made.</p> <p>12. There may be no inconsistency in granting new trial in a case in which a request for a directed verdict was denied.</p> <p>An order granting a new trial may be sustained by the Appellate Court when a directed verdict would not be approved.</p>

<p>1. In the construction of a will, the intention of the testator, as therein expressed, shall prevail over all other considerations, if consistent with the principles of law. To this great rule in the exposition of wills, all others must bend.</p> <p>2. An executory devise is such a limitation of a future interest in lands or personal chattels as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law.</p> <p>3. A bequest in the words “upon the youngest of my four children arriving at the age of twenty-one years I give and bequeath, share and share alike, to my said four children all my real and personal property of whatever kind or nature not heretofore disposed of.” Held, to take effect when and at the time the youngest of the four children arrives at the age of twenty-one years.</p>

<p>1. There are so many matters occurring in the course and progress of a judicial trial which, in the opinion of the judge who tried the case, may affect the merits and. justice of the cause to the substantial injury of one of the parties, that of necessity a large discretion should be accorded to the trial court in granting a new trial, to the end that the administration of justice may be facilitated; and the Appellate Court will not reverse an order granting a new trial, unless it clearly appears that a judicial discretion has been abused in its exercise, resulting in injustice, or that the law has been violated.</p> <p>2. On writ of error taken under the statute to an order granting a new trial in a civil action at law, the only questions to be considered are those involved in the order granting a new trial.</p> <p>3 A stronger showing is required to reverse an order allowing a new trial than to reverse one in denying it.</p> <p>4. Where the trial court grants a new trial containing several grounds, without stating any ground upon which the ruling was based, the order will be affirmed if any ground' of the motion is sufficient to authorize the granting of the new trial. And it must be assumed that the court based the order on the grounds that warrant it.</p> <p>5 Where the evidence on a material issue in a cause is conflicting, and it does not so preponderate in favor of the verdict as to show an abuse of discretion or the violation of any provision or settled principle of law in granting a new trial, the action of the trial court in. granting a new trial will not be disturbed on writ of error.</p> <p>6. When a motion for a new trial is granted by the Circuit Court the presumption is that it was properly granted.</p>

An Appeal from the Circuit Court for Leon Cou'nty; E. C. Love, Judge. STATEMENT.

<p>1. An instruction that it is for the jury “to decide whether the' plaintiff has made out his case or whether he has failed, or the defendant’s evidence has overwhelmed that of the plaintiff or whether it has not” is prejudicial error.</p> <p>2. Section 3148, General Statutes of 1906, does not create such a presumption as will outweigh proofs, or that will re-' puire any greater or stronger or more convincing proofs than in any question at issue. All that the Statute does is to cast upon the railroad company the burden of affirma- • ■ tively showing that its agents exercised all ordinary and reasonable care and diligence.</p>

<p>1. A single assignment of error attacking a plurality of rulings of the trial court whether upon the pleadings, the admission or rejection of evidence, or the granting or refusal of instructions to the jury, will be unavailing,- unless all of such rulings so grouped en masse are erroneous, and the determination by the Appellate Court that one of the rulings so attacked is correct disposes of the assignment.</p> <p>2-, Where there is substantial evidence to sustain the verdict and technical errors, if any, could not reasonably have been prejudicial to the defendant, who was not denied any fundamental rights to which he was entitled, and no material errors of law appear, the judgment will be affirmed.</p>

<p>An Appeal from the Circuit Court for Citrus County; W. S. Bullock, Judge.</p>

<p>An Appeal from the Circuit Court for Citrus County; W. S. Bullck, Judge.</p>

<p>1. While Congress has exclusive power to regulate interstate commerce, and the State may not, when Congress has exerted that power, interfere with, ev.en in the otherwise just exercise of its police power, the State may in such a case act until Congress does exert its authority, 'even though interstate commerce may be incidentally affected.</p> <p>2. When, in the absence of Federal regulations, State supervision of matters that incidentally affect interstate or foreign commerce, is permissible, the State authority is dominant; but upon the asserton of paramount Federal Authority, State regulations in the premises are thereby excluded.</p> <p>■ 3. Although wharves are related to commerce and navigation as aids and conveniences, yet being local in their nature, and requiring special regulations at particular places, the jurisdiction and control thereof in the absence of congressional legislation on the subject, properly belong to the States in which they are situated.</p> <p>4. Where an Act of Congress relating to a subject on which the State may act also, limits the scope of its regulations to a portion of the subject, it leaves the subject open to State regulation as to the matters not covered by the Federal regulations. In determining whether a Federal Act overrules a State law, the entire scheme must be considered and that which is implied has no less force than that which is expressed. The intent of Congress to supersede the exercise by the States of their police power will not be inferred unless the Act of Congress, fairly interpreted, is in actual conflict with the law of the State,</p> <p>5. While Congress in the proper exercise of its paramount authority over foreign and interstate commerce, may provide Federal regulations of wharves, and while a construction of of regulations in derogation of Federal power over such commerce is not favored, yet as wharves are local facilities that do not require uniform regulation by a single authority, they may be regulated by the States in which they are located until Federal authority over them is asserted; and a Federal regulation will not be extended to them so as to supersede State authority unless an intent to assert Federal sepervision or control is clearly manifest from the terms and purposes of the Congressional action taken in the premises.</p> <p>6 Where .State authority is exerted to require the re-establishment of a pre-existing local transportation facility by rebuilding and repairing a wharf adjacent to and lying immediately between a depot of a rail carrier and a river point where a water carrier may land, such authority does not conflict with the asserted Federal authority under the Canal Act of • August 24, 1914, to require physical connection between the lines of the rail and the water carriers by connecting the track of the rail carrier with the docks of the water carrier.</p> <p>7. Orders made by the Raidroad Commissioners within their statutory authority are as a matter of organic law not conclusive. If such an order is made without a legally sufficient evidentiary basis to support it, the order is not enforceable.</p> <p>3. Under the railroad commission statute of 1913, if it be made to appear by admissions in the pleadings having the effect of “clear and satisfactory evidence,” that an order made by the Railroad Commissioners is not “reasonable and just,” or that the order is not “such as ought to have been mad'e in the premises,” or that the order was not “properly arrived at in due form of procedure” or that the order is not “such as can and ought to be executed,” the order should not be enforced by mandamus.</p> <p>9. In determining the validity and reasonableness of an order requiring wharf and depot facilities to be furnished, regard should be had for considerations that show whether the facilities may justly be required, for the convenience and safety of the public to be served, and whether the expense to the carrier is so out of proportion to the advantage thereby afforded to the public or so affects its earnings as to impose an unlawful burden upon the carrier.</p> <p>10. When it does not clearly appear that an order of the Railroad Commissioners is unreasonable as to the nature or extent of the facilities required or as to the expense involved, and the order is otherwise valid, it will be enforced, and doubts if any will be resolved in favor of the order.</p> <p>11. It is within the province and duty of the Railroad Commissioners and the carrier to anticipate and provide for the reasonable requirement by prospective growth of the business done by the carrier.</p> <p>12. Where an order requiring depot facilities to be furnished is shown by the admissions of the pleadings to be so unreasonable with reference to the past and present conditions affecting the matter as to unlawfully invade the carrier’s property rights, the order should not be enforced by mandamus, particularly when it appears that the prospective growth of the carrier’s business does not clearly warrant the requirements of the order sought to be enforced.</p> <p>IS. The functions of a demurrer to a return to an alternative writ of mandamus is to raise a question of law as to the right of the relator on the pleadings to the relief sought. All the allegations of fact that are, as a matter of pleading, sufficiently averred in the return, are for the purposes of the demurrer admitted to be true as averred.</p> <p>14. On a demurrer to a return or answer in mandamus the law applicable to the facts duly stated and admitted is to be determined by the court; and the essential question, when properly presented, is whether the facts thus alleged and admitted are in law sufficient as a defense to the writ.</p> <p>15. Unreasonable regulations are not within the authority conferred by law upon the Railroad Commissioners, and when it appears from the pleading or the evidence in a case that and order or regulation is unreasonable, or unjust with reference to all the substantial interests affected by it, or violative of constitutional provisions for the protection of property rights, such regulations will not be enforced by the courts.</p> <p>1G. Orders of the Railroad Commissioners requiring particular depot and transfer facilities to be furnished for the convenience, not for the safety, of patrons, will not be enforced by mandamus when the burden to the carrier would be so out of proportion to the benefits to accrue to the public as to show the orders to be unreasonable and unjust.</p> <p>17. Motions to strike portions of return to an alternative writ of mandamus will be denied when the averments sought to be stricken are not wholly irrelevant or improper.</p>

<p>An Appeal from the Circuit Court for Escambia County; A. G. Campbell, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Dade; H. Pierre Branning, Judge.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Sumter; W. S. Bullock, Judge.</p>

<p>An appeal from an order of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>A Writ of Error to the Circuit Court for Yolusia County; J. W. Perkins, Judge.</p>

<p>An Appeal from the Circuit Court for DeSoto County; John S'. Edward's, Judge.</p>

<p>A Writ of Error to the Circuit Court for Pienllas County; O. K. Reaves, Judge.</p>

<p>1. The property of an educational institution is not exempt from taxation in Florida when used partly for the residence of the principal of such institution.</p> <p>2. The property of an educational institution is not exempt from taxation in Florida where a part of such property is rented to a tenant by such institution.</p> <p>3. It is the duty of the owner of taxable property in Florida to return it for taxation, and a failure to make such return visits upon him a forfeiture of certain rights under the law, and an assessment of his property is binding upon him when made pursuant to law.</p> <p>4 Land should be assessed under Chapter 5596, Laws of Floriad, 1907, in the name of the owner, or in the name of his legal representative, as shown by the return, or as “unknown” in the absence of a return, though an assessment in the name of the owner to whom it was assessed the year before is permissible.</p> <p>5. An assessment of land to “Est. P. B. Hamilton” as owner is not a valid assessment under the law permitting property to be assessed in the name of the same owner as the year before.</p> <p>6. Chapter 6157, Laws of Florida, is not applicable to an assessment of taxes for a year other than 1911 or 1912.</p> <p>7. The publication, of tax sale notice in the only newspaper pub lished in a county, once before and four times after its selection by the County Commissioners for such purpose, is such a compliance with Section 50, Chapter 5596, Acts of 1907, as not to render a tax sale based thereon invalid.</p> <p>8. Tax Assessors are not required under the law to anticipate the sale of land to the State for taxes of the previous year, but may assume that taxes assessed will be paid by the proper party.</p> <p>9. The clerical omission of a word from a tax sale certificate will not render such certificate void, when by an examination of other records required to be kept the omission is apparent and when such omission has not resulted in harm to any person.</p>

<p>A Writ of Error to the Circuit Court for Dade County, I-J. Pierre Branning Judge.</p>

<p>A writ of Error to the Circuit Court for Escambia County; A. G. Campbell, Judge.</p> <p>Browne, C. J., and Taylor J., dissent.</p>

<p>An Appeal from an Order and Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Dade; H. Pierre Branning, Judge.</p>

<p>1. It is not per se error to overrule a demurrer to a plea which amounts to the general issue or to a replication which amounts merely to a joinder of issue upon a plea.</p> <p>2. A demurrer to a pleading upon the ground that it is vague, indefinite, uncertain and insufficient presents nothing for consideration unless upon a bare inspection of the pleading it appears to be so faulty as to constitute no defense or reply.</p> <p>3 A common carrier of merchandise is not relieved of liability for loss of the goods merely because the shipper furnished the car in which the goods were loaded where the car was leased from a third person and for the use of such ear upon the road the carrier pays to the owner a certain amount per mile and the loss of the goods in transportation is due to a defect in the particular car.</p> <p>4. A common carrier is not permitted to contract against its own negligence.</p>

<p>1. A demurrer to a declaration upon the ground that it is vague and uncertain, is so indefinite that it does not serve the purpose of the statute requiring the demurrant to state the substantial matters of law intended to be argued and will not be considered where the declaration does not wholly fail to state a cause of action.</p> <p>2 A declaration in an action against a railroad for damages for personal injuries is valid, which alleges, among other things, that the plaintiff, a passenger on the train of the defendant, intended to leave the train at a certain station, of which intention the defendant through its train employee knew, and that while the plaintiff was in the act of leaving the train at the said station the train was so negligently handled and operated that the plaintiff was violently jerked and caused to fall so that he was injured.</p> <p>3. A passenger on a railroad train may leave the train when it arrives at a station, and it is the railroad company’s duty to provide suitable means and a suitable place and allow sufficient time for the passengers to alight safetly.</p> <p>4. Objections to the admission of evidence should definitely and specifically point out the ojectionable features of the evidence offered.</p> <p>5. Where a question is propounded to a witness and objected to by opposing counsel upon valid grounds, and the question is afterwards answered by the witness without objection or motion to strike, the original objection to the question is considered waived.</p> <p>6. A passenger on a railroad train is not guilty of negligence which would preclude his recovery for damages for injuries sustained in alighting from the train, merely because he failed to leave the train through a particular door of the car, the selection of which as the exit for departing passengers not having been announced by persons in charge of the train.</p> <p>7. It is the duty of a common carrier of passengers to safely deliver a passenger at the latter’s destination, and when the train is stopped for that purpose the carrier should allow ample time for all departing passengers to alight safely before starting train again.</p> <p>8. The competency of evidence is a matter for the court’s determination, its sufficiency and weight are matters for the jury. A charge which submits the question of the competency of evidence to a jury is erroneous.</p> <p>9. The declaration states the plaintiff’s cause of action, and when the plaintiff on the general issue meets the burden of proving the facts alleged, to be true, he is entitled to a verdict.</p> <p>10. Where a trial court in its charge to the jury has announced a correct principle of law applicable to the facts, it is not necessary to repeat the principle in different forms of expression, although requested by counsel.</p> <p>11. A requested instruction which is not applicable to the evidence is properly refused.</p> <p>12 Evidence examined and found sufficient to support the verdict in that it measured to the rule that honest and intelligent minds might fairly differ in their conclusions respecting it.</p>

<p>A Writ of Error to the judgment of the Circuit Court within and for the County of Pinellas; O. K- Reaves, Judge.</p>

<p>1. A special plea which sets up facts, all of which are admissible under the general issue, is improper, and should be stricken on motion.</p> <p>2. An instruction to the jury upon the burden of proof if correct in principle cannot form the basis of an assignment of error.</p> <p>3. The grouping of instructions in one assignment of error will prove fatal to the assignment if one of the instructions was correct.</p> <p>4. Proper exceptions to the ruling of the court in admitting or rejecting evidence should be made; otherwise the assignment of error based upon such ruling will not be considered.</p> <p>5. The plaintiff must recover, if at all, upon the case made by his declaration, and not upon some other case made by the evidence.</p>

<p>1. A person held in custody under a warrant issued on an indictment which does not wholly fail to charge an offense is not entitled to his discharge from custody, although the indictment may contain defects which render it amenable to objections which could have been presented by a motion to amend or by demurrer.</p> <p>2. Section 3319 of the General Statutes of Florida, 1906, denouncing the offense of obtaining property by false pretense is not concerned with the motive with which the victim parts with his money or property, but the means which the offendder uses to obtain it.</p> <p>3 An indictment which charges that the defendant by his own activities and those of his agents won the confidence of another in the former’s representation that he had established by means of telegraph wires and a telegraph instrument communication with a race track and was receiving information as to the result of the races and by such means induced the other to wage money upon the races, and such representations were false in that there was no such telegraphic communications with such race track, and that defendant exhibited packages of what he falsely said was money which he offered to bet with the other on such races and by such means consisting of false tokens and false words used in connection therewith, induced the other to part with his money upon a wager that a certain horse would win in the race, which money the defendant received and retained pursuant to his original intention and design by announcing that the telegraphic information received showed that the particular horse had lost the race, charges the offense of obtaining money by false pretenses.</p> <p>4. One who is deprived of his liberty upon a criminal charge and by an arbitrary order of the court is denied a speedy trial and his cause is continued may obtain his discharge upon habeas corpus proceedings.</p> <p>5. In this State one charged with a criminal offense is entitled under the Constitution to a speedy and public trial, but the presumption does not obtain that a continuance of the case by the Court upon application of the State over the defendant’s objection is a denial of that right.</p> <p>C One who is in custody charged with a criminal offense and seeks his discharge upon habeas corpus upon the ground that he has been denied a speedy trial because the court over his objection continued the case upon insufficient grounds, must make such error affirmatively to appear.</p> <p>7 When a motion by the State for a continuance of a criminal case is granted over the defendant’s objection, and such order of continuance is attacked in a habeas corpus proceeding for the discharge of the defendant upon the ground that he is denied a speedy trial, the motion for continuance and affidavits in support thereof should be evidenced to this court by bill of exceptions.</p> <p>8. The granting of a motion for continuance in- a criminal case over the defendant’s objection is no ground for the reversal of a judgment of conviction when the order of continuance was not attacked at the time in- an appropriate manner and the record does not disclose that the defendant’s rights were jeopardized at the trial by the continuance.</p> <p>9 If an indictment in one count charges two distinct or separate offenses, the count is -demurrable. If the indictment contains two counts which are inconsistent or charge inconsistent offenses, a motion to elect upon which count the defendant shall be tried is appropriate.</p> <p>10. An objection to the admission of evidence because of remoteness of the fact sought to be proved is without merit if its admission has any logical tendency to assist the court in determining the contested issues.</p> <p>11. A witness may testify whether a contract existed between ‘ certain parties although he may not be permitted to testify as to the terms of the contract if it had any existence in fact and was in writing.</p> <p>12. The admission of evidence which may be irrelevant because the fact sought to be proved is remote does not per se render such admissible reversible error; it must be shown that it was misleading or confusing.</p> <p>13. Objections to evidence for irrelevancy and immateriality are too general to contain merit and will not be considered if the evidence was admissible for any purpose, or was harmless.</p> <p>11. Evidence examined and found sufficient to support the verdict.</p>

<p>1. An unlawful interpretation of the service rendered by a gas company under a contract with the municipality, may be an. irreparable injury to consumers, which equity may remedy by appropiate injunction, at the suit of resident consumers for whose benefit the service contract is made.</p> <p>2. Where gas is furnished consumers pursuant to a contract made by a gas company with the municipality, the company may be enjoined from discontinuing the service if rates in excess of the contract rates are not paid. If changed conditions cause the contract rate to be unremunerative to the gas company, the courts may not for that reason decline to enforce the rights of consumers under the contract.</p>

<p>A Writ of Error to the Circuit for Hillsborough County,- F. M. Robles, Judge.</p>

<p>1. In foreclosure proceedings against a mortgagor in possession under a deed from the mortgagee with full warranty of title, the mortgagor cannot set up an outstanding title or breach of covenants as a defense to the bill to foreclose the mortgage given to secure the purchase money when there has been no actual or constructive eviction of the mortgagor or fraud or insolvency on the part of the mortgagee.</p> <p>2. A stipulation in a deed of warranty that the vendor has good, rightful power and lawful authority to sell the land, although untrue, does not alone constitute fraud' in the sale.</p> <p>3. K. conveyed by warranty deed a tract of land to P. with covenants that the land was free from incumbrances and liens, including taxes, and that grantor was lawfully seized in fee simple. P. executed to K. a mortgage to secure the payment of the purchase price of the land. Afterward K. brought proceedings against P. to enforce the mortgage lien. Held, that P. who was in possession could not in the absence of fraud or in solvency on the part of K. set up as a defense that the land was not free of a lien for taxes at the time of the sale.</p>

<p>An Appeal from, the Cirucit Court for DeSoto County; John S. Edwards, Judge.</p>

<p>An Appeal from tile Circuit Court for DeSoto County; John S. Edwards, Judge.</p>

<p>An Appeal from tlie Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>Chapter 5616, Laws of Florida, 1907, which authorizes the Railroad Commissioners by their Special Counsel in- the name of the State to commence a suit in chancery against any railroad company to compel an accounting for and refunding of any money exacted from the patrons of the road by the company in. violation of a rule or rate prescribed by the Railroad Commissioners is not invalid as being in conflict with Section 3 of the Bill of Rights of the Constitution of the State securing the right of trial by jury, nor does it violate Section 11 of Article V of the Constitution conferring jurisdiction upon the Circuit Courts.</p>

<p>An Appeal from the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>A Writ of Error to the Circuit Court for Okaloosa County; A. G. Campbell, Judge.</p>

<p>Where, under the express provision of a written, lease the lessee is given the option, upon the happening of a certain named contingent event to coninue said lease in effect or to terminate it before the regular end of the term stated therein, upon the happening of such event and an election under such option to terminate such lease, it is not essential in order to make such election effectual to accomplish that purpose that the lessee should, upon giving notice thereof to the lessor, surrender possession of the leased premises, and where such- lessee continues in possession of such premises paying rent therefor he becomes under the provisions of Chapter 5441, Acts of 1905, Laws of Florida, a tenant at'sufferance or a tenant at will..</p>

<p>A Writ of Error to a judgment of the Circuit Court within and for the County of Levy; Robert E. Davis, Referee.</p>

<p>1. Where a warrant under which a petitioner is held in custody-does not allege an offense, under a statute, a discharge from custody may he ordered in- habeas corpus proceedings without considering the constitutionality of the statute.</p> <p>2. A charge that the defendant “did unlawfully transport over a public highway in” a -dry county, intoxicating liquors in violation of a statute, does not allege an offense under the statute which makes it “unlawful for any common or other carrier to transport any intoxicating liquors over * ® * * highways * * * of this State into any county” &c. Non con-stat the defendant was transporting the liquors through and not into the dry county. It was not alleged that the defendant was transporting the liquor as a common carrier or other carrier.</p>

<p>1. A verdict will not be set aside by an appellate court where the propriety of the verdict depends, not upon the lack of evidence, but upon the credibility or weight of conflicting testimony.</p> <p>2. The refusal of the trial court to grant a new trial for insufficiency of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not he reversed unless, after allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the Appellate Court that it is wrong and unjust.</p> <p>S. Where the evidence is conflicting, but there is positive testimony, which the verdict indicates the jury believed, that is amply sufficient to sustain the verdict, and there is nothing to show that the jury were not governed by the evidence, the verdict will not be disturbed, particularly when it is the second verdict for the same grade of- offense.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>A Writ of Error to a Judgment of the Court of Record within and for the County of Escambia; Kirk Monroe, Judge.</p>

<p>A Writ of Error to the Circuit Court for Pinellas County; O. K. Reeves, Judge.</p>

<p>APPELLATE PRACTICE — STATUTORY SUPERSEDEAS IN AN EQUITY CAUSE IS NOT EFFECTED UNLESS A BOND IS APPROVED AND FILED WITHIN THIRTY DAYS AFTER THE RENDITION AND RECORDING OF THE ORDER OR DECREE APPEALED FROM — AFTER THE LAPSE OF THIRTY DAYS ONLY THE APPELLATE COURT OR SOME JUSTICE THEREOF CAN GRANT A SUPERSEDEAS — THE CIRCUIT JUDGE HAS NO POWER TO GRANT SUPERSEDEAS</p> <p>A statutory supersedeas in an equity cause can. be effected only by the filing and approval of a supersedeas bond, in amount and conditioned as prescribed by an order of the Circuit Judge, and such bond must be filed within thirty (30) days from the rendition and recording of the order or decree appealed from after the lapse of thirty days only the Supreme Court or some Justice thereof has authority to grant an order of supersedeas. The Circuit Judge has no such power under the Statute. There being no supersedeas in existence in the case, the motion to vacate is denied.</p>

<p>A Writ of Error to tlie Circuit Court for Washington County; C. L. Wilson, Judge.</p>

<p>1. Where there is ample competent evidence in the record of all the facts legally essential to support the verdict and the trial court upon a motion for a new trial upon the grounds that the verdict is not sustained by the evidence has refused to grant such motion and it does not affirmatively appear that the jury was influenced by considerations outside the evidence this court, in reviewing such ruling, will not disturb it.</p> <p>2. It is well settled that charges to the jury must be based upon facts in proof and must be applicable to such facts.</p> <p>3. For the purpose of determining whether a charge on a given subject is infected with error the whole of the charge on the subject and not portions of it only, should he considered, and when considering the charge as a whole it is free from error, technical error in isolated portions of it when considered alone, will not be held reversible error.</p>

<p>A Writ of Error to a judgment of the Circuit Court within and for the County of DeSoto; P. M. Robles, Judge.</p>

<p>An Appeal from the Circuit Court for Hillsborough County; F. M- Robles, Judge.</p>

<p>1. In order to constitute a sound disposing mind, a testator must not only Ije able to understand that he by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property.</p> <p>2. It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be trancactetd, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.</p> <p>3. An entire change from former testamentary intentions, is a strong circumstance to support a claim of undue influence.</p> <p>4. Where there is an insane delusion in regard to one who is the object of the testator’s bounty, which causes him to make a will which he would not have made but for that delusion, such will cannot be sustained.</p> <p>5. Where the fact that the testator has been subject to any insane delusion has been established, a will should be regarded with great distrust, and every presumption should in the first instance be made against it.</p> <p>6. Undue influence can seldom if ever be established by direct-evidence, but may be shown by its results, and it may become the only legitimate inference from the facts and circumstances in the case.</p> <p>7. A will should not be disturbed because it is unreasonable and unjust, but where as in the instant case it does violence to the natural instincts of the heart, to the dictates of fatherly affection, to natural justice, to solemn promises, and to moral duty, such unexplained inequality and unreasonableness is entitled to great influence in considering the question of testamentary capacity and undue influence.</p> <p>'3. Apparent inequality or unreasonableness in a testamentary disposition is entitled, in proportion to its degree of flagraney, to some auxiliary influence on the question of capacity, or fraud or controlling influence; and, unexplained and combined with other corroborating evidence, it may be entitled to great influence.</p>

<p>1. An order for the sale of the interest of an, infant in real estate is inoperative and the deed made thereunder void unless the provisions of the law have been complied with which give to the court jurisdiction of the proceeding under which the order is made.</p> <p>2. The guardian of an infant who desires to sell the real estate of his ward is required by Section 2616, General Statutes of Florida, to publish notice of his intention to make application to the judge for authority to sell the same, setting forth in the notice the time and place and to what judge the application will be made. The publication of such notice is jurisdictional and an order of sale made without the publication of such notice is void.</p> <p>3- Section 1724 of the General Statutes which provides in substance that the title of any purchaser of real estate who has held posession for five years, when the purchase was for full value, without fraud at a sale made by an executor or guardian, shall not be questioned by any heir or ward upon the ground of any irregularity in the proceeding or conveyances, has no application in the case of a sale by a guardian under an order of a judge who had no jurisdiction to make the order of sale.</p> <p>4. Section 2618, General Statutes, was intended to' cure defects in sales of the real estate of minors when such sales were made through Commissioners appointed by the court instead of through executors, administrators or guardians and has no application in cases where an order of sale is made without jurisdiction in the court or judge to make the order.</p> <p>5. A suit for partition cannot be resorted to as a substitute for the action of ejectment nor used for tbe sole purpose of testing a legal title or trying an issue as to it.</p>

<p>In partition proceeding under tlie statute it is not error to decree partition as to all the parties in severalty; but upon proper proceeding the court may decree that partition, be made to some of the parties jointly instead of severally.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Polk; John S. Edwards, Judge.</p>

<p>A Writ of Error to the Circuit Court for Palm Beach County; E. B. Donnell, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Pinellas; O. K. Reaves, Judge.</p>

<p>An Appeal from an Order and Decree of the Circuit Court within and for the County of Duval; Daniel A-Simmons, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Hillsborough; P. M. Robles, Judge.</p>

<p>1. In mandamus the petitioner must receive all or none of the relief that he demands. There must be a strict and full compliance with the .requirements of the writ and not merely a partial or substantial compliance therewith.</p> <p>2. It is a well settled rule that an application rof mandamus must be made in proper time; i. e., it must not be delayed too long.</p> <p>S. While mandamus is classed as a legal remedy, it is a remedial poeess which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion and upon equitable principles. It is an extraordinary remedy, which will not be allowed in cases of doubtful right, and it is generally regarded as not embraced within statutes of limitation applicable to ordinary actions, but as subject to the equitable doctrine of laches.</p> <p>4. For the purpose of fixing just and reasonable rates, a city may by ordinance require a public service corporation to make reports showing its receipts and expenditurs, but mandamus will not be awarded when there has been a nunreasonable delay in attempting to enforce compliance with the ordinance.</p>

<p>A Writ of Error to tlie Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>Where it appears that property covered by a mortgage should be released therefrom in compliance with the terms of the mortgage, it is error to enforce the mortgage lien as to such property.</p>

<p>An Appeal from an Order of the Circuit Court within and for the County of Osceola; J. W. Perkins, Judge.</p>

<p>Where the testimony is conflicting and there is ample evidence to support the finding of the chancellor, the decree will not he reversed on- the evidence.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Hillsborough; F. M. Bobles, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval; P. L. Gaskins, Referee.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Levy; Robert E. Davis, Referee.</p>

<p>An Appeal from the Circuit Court for Marion County; W. S. Bullock, Judge.</p>

<p>An Appeal from the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

A Writ of Error to the Circuit Court for Dacle County; H. Pierre Branning, Judge. STATEMENT. The defendant in error, a corporation, hereinafter called the plaintiff, sued the plaintiffs in error hereinafter called defendants in the Circuit Court of Dade County, to recover a commission alleged to be due it for finding a purchaser for Teal estate listed with it for sale by defendants.

<p>Under Section 9, Article XYI of the Constitution “the legal costs and 'expenses, including the fees of officers,” in criminal prosecutions “shall be paid by the counties * * * under such regulations as shall be prescribed by law;” and under the statute no costs of a committting magistrate shall be paid by the county if no information or indictment is found against the person committed or held to bail by such magistrate.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Bay; D. J. Jones, Judge.</p>

<p>An Appeal from the Circuit Court for Escambia County; A. Gr. Campbell, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Escambia; A. G. Campbell, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Escambia; A. G. Campbell, Judge.</p>

<p>1 The rule is that where a public statute is applicable to a case it is sufficient that the pleading of the party who seeks to rely upon the statute shall set forth the facts which bring the case within it, and it is not necessary to recite the title of the act or otherwise designate or even refer to it.</p> <p>2. Repeals hy implication are not favored, and in order that a court may declare that one statute repeals another by implication it must appear that there is a positive repugnancy between the two or that the last was clearly intended to prescribe the only rule which should govern the case provided for, or that it revises the subject-matter of the former.</p> <p>3. It is to be presumed that different acts on the same subject passed at the same session of the elgislature are imbued with the same spirit and actuated by the same policy and that they should be construed each in the light of the other. The legal presumption is that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intent to do so. An interpretation leading to such a result should not be adopted unless it be inevitable. The rule of construction in such eases is that if courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation, it is their duty to do so.</p> <p>4. Section 9 of Chapter 6537 was not repealed by Chapter 6474, the tax levy act of 1913, passed at the same session of the legislature but construing the two statutes as being in vari materia, Section 9 of Chapter 6537 remains in full force and effect but so modified by the tax levy act as to authorize a levy of a tax of not exceeding eight (8) mills on the dollar on the property of the county for the construction -of the roads and bridges of the county; neither was such section repealed by Chapter 6941, the tax levy act of 1915, but applying the same rule of construction the same conclusion is reached.</p> <p>5. The proviso to Section 9 of Chapter 6537, Laws of Florida, directing that one-half of the amount realized from the special road tax authorized and required to be levied by the county commissioner’s and realized from said tax upon property' in'incorporated' cities and towns'to be turned over to said cities and towns to be used in repairing and maintaining the roads and streets thereof is' not in conflict with Section '6; Article'"IX of'the Constitution as being a diversión pr'o tanto of'county funds to "other than "county purposes.</p> <p>6. Under the provisions of Section 9 of Chapter 6537 it is the duty'of the county'commissioners to turn over to the cities and towns their proportion of such tax when collected and paid into the county- treasury, and the' county ha’s no right to appropriate such 'moneys to any of her purpose and can-hot by attempting to do so escapé liability therefor and thus defeat the claim of such cities" and towns thereto. " !</p> <p>7 Moneys which become due to cities and towns under the provisions of ffeótion 9 of Chapter !(!537 'is legitimate indebtedness Of the county in which the tax is levied and collected and its paiymeht may he enforced ‘by an action of assumpsit against the county.</p> <p>8. Under the provisions of Section 773, General Statutes of 1906, Compiled'Laws of 1914, providing that cdunfy commissioners' may sue and he sued in the name'Of the county of which they aré ’commissioners, a suit in' assumpsit may be maintained against a county by one to whom it is legitimately indebted.'</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Escambia; A. G. Campbell, Judge.</p>

<p>A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to compensation until he effects a sale or procures from his customer a binding contract of purchase within the terms of authority.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>Appeal from the Circuit Court for Broward County; E. B. Donnell, Judge.</p>

STATEMENT. This is an appeal from the decree of the Circuit Court for St. Johns County, dismissing a bill brought by the appellants against the appellees, seeking to enforce the collection of taxes for the year 1916. To this bill the appellees filed an answer, and upon the final hearing the lower court dismissed the bill.

<p>An Appeal from the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>An Appeal from the Circuit for Duval County; George Couper Gibbs, Judge.</p>

<p>1. Where dividends on corporate stock owned by an insolvent accrue and are declared- after such stock passes to a receiver, the corporation declaring the dividends can not set off a debt due it by the insolvent against an action by the receiver to recover such dividends.</p> <p>2. The right of set off against the receiver of a hank is to he governed by the state of things existing at the time of insolvency and not by conditions thereafter created.</p>

An Appeal from the Circuit Court for Orange County; J. W. Perkins, Judge. STATEMENT. The State Bank of Orlando filed its bill in equity against the appellants and others to foreclose a mortgage upon real estate made by the Phillips Manufacturing Company to one Henry C. Miller, dated December 17th, 1913, to secure a note for $7,000.00 The mortgage was filed and duly recorded in Orange County on July 22nd, 1914, and was later assigned to complainant.

<p>On. an issue of fact as to whether a negotiable note was accepted as collateral before notice of its infirmity, it is error to exclude competent testimony in rebuttal of testimony as to when the note was received and held as collateral; and the exclusion of the stated testimony in this case is held to be harmful and reversible error.</p>

<p>1. If a grantor warrants “That * * * premises are free and clear from all incumbrances and liens of every nature and kind so ever including taxes” at the time of making deed, and if the premises are at the time subject to a lien for taxes before that time levied by the taxing power of the state, and if the grantee pay such taxes, he may recover the amount of money paid by him with interest in an action oí covenant.</p> <p>2. Chapter 5709 levies an acreage tax of five cents per acre per annum upon certain designated lands and such levy .creates a, lien therefor upon such land and such lien fastens itself upon the land by operation of the law upon the arrival of the year for which such taxes may become due and payable.</p>

<p>An Appeal from the Circuit Court for Hillsborough County; F. M. Robles, Judge.</p>

<p>1. Where the testimony is conflicting hut there is ample evidence to support the finding of the chancellor, the decree will not he reversed on the evidence.</p> <p>2. Undér the statutes of this State, permanent alimony cannot he awarded to the former wife in a suit hy the husband where the divorce is granted for the fault of the wife.</p>

<p>1. The provision of the constitution granting to railroad companies the right of eminent domain, does not prohibit the legislature from providing for the payment of attorney’s fees to the party whose land is sought to be condemned.</p> <p>2 Proceedings for the condemnation of private property for public use, may be dismissed by the party seeking condemnation, at any time, and when that is done the jurisdiction of the court except in the matter of taxing costs, is terminated so far as that suit is concerned.</p> <p>3. Section 2020, General Statutes of Florida, providing for the payment of attorney’s fees in condemnation proceedings, contemplates the assessment of attorney’s fees by the jury that determines the compensation to be made for the land, and in condemnation proceedings limits to that particular jury the right to assess attorney’s fees.</p> <p>4. Where condemnation proceedings are dismissed by the petitioner before the jury has determined the compensation to be made for the land, the party entitled to attorney’s fees must recover his attorney’s fees by an independent suit.</p>

<p>An Appeal from the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>