Volume 78 — Florida Reports

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

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

<p>A Writ of Error to an Order of the Circuit Court within and for the County of Orange; James' W. Perkins, Judge.</p>

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

<p>When a new judicial circuit is created, the appointment of a judge for such circuit should he for a term equal to the unexpired term of the other Circuit Judges.</p>

<p>Constitutional Law — Suspension of Officer — Applies Only to Officers That Have Been Elected by trie People or Appointed by the Governor.</p> <p>Under the provisions of Section 15 of Article III of the Constitution the Governor has power to suspend from office only-such officers as have been elected by the people or appointed by the Governor, who are not subject to impeachment. Since the State Health Officer is neither elected by the people nor appointed by the Governor, the latter has no authority to suspend him.</p>

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

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

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Putnam; J. T. Wills, 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>1. The purpose of the statute enacted in 1854, adopted from the Civil Code of New York, and brought forward as Section 1505 General Statutes of Florida, was to enlarge, not to restrict, the competency ,of parties as witnesses.</p> <p>2. The expression “interest in the event,” as used in the proviso to this statute, w,as never intended to enlarged the class to be excluded under it beyond that which the common law excluded in using the same language. Under the stringent rules of the common law all persons who were interested in the event of a suit were disqualified from testifying therein, whether their antagonists in interest were living or dead. The purpose of this statute was. to remove this common-law disability arising from interest in the event of litigation, except in qases where one of the parties to any “transaction or communication” was, at the time of the examination, dead or insane. In the latter cases the disabilities arising from interest in the event that were imposed by the common law are, by this statute, retained. But in such cases the statute disqualifies those only who were disqualified by the general rule of the common law. Any exception from the disqualification that was recognized by the rules of common law, forms a like exception to the cases intended to be excluded by the proviso to this statute. If the witness was competent by the common law, he is competent also under the proviso to this statute, and vice versa.</p> <p>3. The true test of the interest of a witness under the proviso to . this statute is whether he will either gain or lose by the direct legal 'operation and effect of the judgment, or whether the record in the case will he legal evidence, for or against him, in some other action. It must he a present, certain and vested interest, and not an interest uncertain, remote or contingent.</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>1. An indictment commencing as follows: "IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, for Jackson County, at the Fall Term thereof in the year A D. 1912. “THE GRAND JURY FOR THE STATE OF FLORIDA, inquiring in iand for the County of-, upon their oaths, do present,” is not fatally defective because of the omission from the caption of the name 'of the county in which the inquiry is made by the grand jury, and this is especially so in view of the provisions of Section 3902 General Statutes of Florida, 1906, Compiled Laws, 1914.</p> <p>2. This court takes judicial notice 'of the changes of Judicial Circuits of this State. »</p>

<p>A Writ of Error to Criminal Court of Becord for Orange County; T. P. AYarlow, Judge.</p>

<p>An ordinance that requires the establishment of privies in “every house and building * * * however used or occupied,” and requires compliance with the provisions of the ordinance within fifteen days after the date of a notice from the Commissioner of Health, “or within such further time as the Commissioner of Health may allow,” permits an arbitrary discrimination by the Commissioner of Health and is therefore inoperative and void.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Alachua; J. T. Wills, Judge.</p>

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

<p>1. Duplicate tax receipts purporting to be issued by a County Tax Collector for taxes paid, upon forms prescribed and furnished to him by tlie State Comptroller, which forms County Tax Collectors' are required to use in the performance of their public duties, may be admissible in evidence against a County Tax Collector upon a criminal prosecution for the alleged embezzlement of County taxes received by him, when such" receipts purport to be signed by such Collector and bear liis name as Rax Collector of the county.</p> <p>2 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>S. Receipts issued by a County Treasurer or a County Depository to a County Tax Collector showing amounts of County funds received by them from him are records required to be kept in the performance of public duties and may be admissible in evidence upon a criminal prosecution 'of such Collector upon a charge of the embezzlement of county taxes received by him.</p> <p>4. Official registers or books kept by persons in public office in which they are required, whether by statute or by the nature of the 'office, to write down particular transactions occurring in the course of their public duties and under their personal observation, are generally admissible in evidence, notwithstanding their authenticity is not confirmed by the ordinary test of truth, the obligation of an oath, and an opportunity to cross-examine the person on whose authority the truth of the document depends.</p> <p>5. It is not necessary to the admissibility in evidence of an official register of this kind that a statute should expressly require it to be kept, or that the nature of the office should render it indispensable.</p>

<p>1. Whether a default properly entered should be 'opened is ■within the sound judicial discretion of the trial court.</p> <p>2. To warrant the opening of a default, the defendant should at least present facts reasonably excusing his failure to appear and show by plea or by affidavit or otherwise, facts which constitute a good defense to the merits and also offer to go to trial ,at once upon a material issue.</p> <p>3. If defendants can be relieved of the consequences of default by motion to stay execution after final judgments, the showing required should not fall short of that required to open a default before final judgment.</p> <p>4 Matters which constitute part of the record proper, have no place in the bill of exceptions, and when evidenced to the appellate court only by bill of exceptions, such court cannot consider assignments of error predicated upon rulings thereon.</p> <p>5. Where motion is made under our statute to set aside an execution and judgment because of illegality in such judgment and execution, these documents should be exhibited to the appellate court on writ of error in the record proper, and if they are shown only in the bill of exceptions, assignments of error predicated thereon cannot be considered.</p>

<p>The findings of the Chancellor on the evidence will not be disturbed by the Appellate Court unless such findings of fact are clearly shown to be erroneous.</p>

<p>The genuineness of a signature may be ascertained by comparison of the disputed signature with an admittedly genuine, one, and when upon such comparison the two signatures are so much alike in the many features of their construction that they agree or correspond in lines, angles,- slant and space occupied, the fact of such correspondence is deemed to be evidence of highly probative value that one is a tracing of the other, .or a drawing from a model.</p>

<p>1. Married women can legally contract and Convey property only as provided by law and void contracts and conveyances of married women cann'ot be given effect by the doctrine of estoppel in the absence .of a statute permitting it.</p> <p>2. The tacts and conduct of a married woman in matters where she is legally competent to act, or where she acts in the manner required by law, may operate as an estopped in pais as to her</p> <p>3. Estoppel does not operate to give legal capacity or competency to a married woman or to dispense with the requirements of law relative to toe conveyance or mortgage by a married woman of her interests in real estate.</p> <p>4. A married Woman cannot give herself a legal capacity to contract by falsely representing that she has such capacity.</p> <p>5. The statutory provisions requiring p. mortgage of a married woman’s real property to be executed by the joining of the husband therein, and that the married woman shall acknowledge “before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, thtat she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and toe officer’s certificate shall set forth all the foregoing requirements” are mandatory, and unless observed mortgage^ of the real property of married Women are invalid.</p> <p>6 A married woman who alone executes a mortgage on her real property in the name she bore as a widow before her marriage is not by such execution estopped to show that she was in flact a married woman when she executed the mortgage.</p> <p>7 A mortgage executed only by Mary W., a married woman, in the name of “Mary R., a widow,” which name she bóre before her marriage, is void, since under the statute a mortgage of a married woman’s real property must be joined in .by the husband, and the execution of the mortgage by the wife must be duly iacknowledged separate and apart from her husband.</p>

<p>An Appeal from the Circuit Court for Dade County; H. F. Atkinson, Referee.</p>

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

<p>1 Under Section 1432 General Statutes any pleading in any case may be amended upon proper application tberefor and up'on sucb terms as the court may impose.</p> <p>2. Where charges are given in a qase and the charges are not unfair to the complaining party, and the whole of the court’s charges is not brought to the attention of the appellate court, it will be assumed that the issues involved were fairly submitted to the jury.</p> <p>3. A verdict and judgment for punitive damages for an am'ount not so excessive ias to shock judicial conscience, or show improper influence upon the jury, will not be disturbed upon an appeal, where under the law a verdict for punitive damages could be sustained.</p>

<p>An Appeal from the Circuit Court for Osceola County; Jas. W. Perkins, Judge.</p>

<p>1 The lien of a judgment under the statutes of Florida is effective 'only as to the benefiqail interest of the judgment debtor in real estate.</p> <p>2 When it affirmatively appears that a judgment creditor has not acquired substantial rights on the faith of, or by reason . of the record showing the title to real estate to be in the judgment debtor, the beneficial owner thereof is not estopped t'o assert his ownership as against such creditor.</p> <p>8. In the absence of estoppel, the registry statute does not operate to convey title in or to create a lien upon property.</p> <p>4. The maxim “He who comes into' equity must come with clean hands” does not apply to wrongs committed at large by those who resort to equity for relief, but is confined to misconduct in the matter in litigation and must concern the opposite party.</p>

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

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

<p>Where on an indictment charging the larceny of “one bull, one steer, one cow,” the testimony relates to the larceny of a' cow and there is no evidence of the larceny of a bull, a verdict' of “guilty of larceny of one bull,” is not supported by the evidence.</p>

<p>An Appeal from the Circuit Court for Seminole County; J. W. Perkins, Judge.</p>

<p>An Application for the Exercise of Original Jurisdiction.</p>

<p>A case of original jurisdiction.</p>

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

<p>1. The City of St. Cloud is authorized by its Charter (Chapter 7237 Special Acts of 1915) to pave its streets and to pay the cost (a) by the issue and sale of bonds; (b) by general taxation, or (c) by assessing two-thirds of the cbst against the abutting property.</p> <p>2. Having provided sufficient funds by the issue and sale of bonds to pay for all the paving designated, the city of St. Cloud had no power after such paving had been completed and paid for, to assess the property abutting the streets p¡aved for two-thirds of the cost of the paving.</p> <p>3. Special assessments can only be levied to pay for an improvement, local in character, as distinguished from general, and the proceeds of such assessments eanriot be used to augment the general revenue fund, nor to finance a separate and distinct improvement project, nor to create a sinking fund for the payments of bonds issued for various municipal purposes.</p> <p>4. Power to make special assessments is given municipalities as a means 'of paying for a particular improvement or benefit to tbe property assessed, and when tlie necessary funds are raised otherwise and the improvements made and paid for, there remains no need for a special assessment and no power to ni|ake one.</p>

<p>1. The office of an, interpleading suit is to protect one against the embarrassment of Conflicting claims and- double vexation in respect to one.liability..</p> <p>2. A stakeholder’s right of interpleader is subject to the technical requirement that the opposing claimant’s titles must be in privity with each 'other-, one derived from the other or both derived from a common source.</p> <p>8. Where claimants to a fund in the hands of a stakeholder assert their claims under adverse titles and not in privity and when their claims are of different natures, a bill of inter-pleader cannot be maintained.</p> <p>4. F. owed a debt to G. who died; the debt was evidenced by a promissory note payable to the order of G. and held by G.’s widow as Executrix of his Will; M. claimed the debt either as owner of half interest or as surviving partner of. G. Held, that F. was not entitled to an interpleader as .against ■G.’s executor and M.</p> <p>5. Where a bill of interpleader fails to show a title to the fund in one of the claimants the hill is defective.</p> <p>6. The person desiring an interpleader cannot force the claimant under a contract with the stakeholder to interplead with a stranger.</p> <p>7. The complainant in an interpleading suit cannot cast upon-the defendants or claimants of the fund the burden of settling the question as to which -of them the complainant obligated himself.</p> <p>8. A person seeking the advantages 'of ia bill of interpleader must show not only that he stands indifferent between the claimants, that he is without interest in the controversy, but also that he is in the position of an innocent stakeholder and that no act of his has caused the embarrassment of conflicting claims and the peril of double vexation.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Santa Rosa'; A. G. Campbell,- Judge. ' '</p>

<p>1. Whenever, in the organization of a corporation, there arises or exists between the promoter and the inchoate corporation a quasi trust relation and there is a breach of the fiduciary duty growing out of such relation, an action may be miaintained by the corporation in a court of equity, for discovery and accounting, to rescind or set aside the agreement or transfer, to establish the trust and recover such secret profits from such promoter.</p> <p>2. Allegations in a bill of complaint which • simply show a few years between the accrual of a right and the assertion of such right but do not show evidence of a change of values or other circumstances substantially changing the relati'on- ■ ship of the parties or status of property rights involved, do not make it demurrable upon the ground of laches. •</p> <p>3. Equity will not take jurisdiction, where the remedy at law is full, adequate and complete; but where the remedy at law is n'ot full, complete /and adequate, or where complete relief is doubtful, and a more ample and appropriate remedy may be thereby afforded, - equity will take cognizance, and give relief, if it can be done in accordance with recognized principles of chancery jurisdiction.</p> <p>4. Whenever, in the organization of a corporation there exists between the promoter iand the corporation a quasi trust relation and there arises a right of action growing out 'of a breach of the fiduciary duty resulting from such relation, a court of equity affords a far more ample, complete and adequate remedy than can be had in a court of law.</p>

STATE OF FLORIDA, EXECUTIVE CHAMBER, Tallahassee, July 17th, 1919. Hon. Justices of the Supreme Court, State of Florida, Tallahassee,' Florida.

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

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

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

A Writ of Error to the Circuit Court for Escambia County; A. G. Campbell, Judge. Statement. This is an action brought by plaintiff in érror against the defendant in error for the sum of $241.96, the balance due upon an account of $741.96, the defendant having prior to the institution of the suit paid $500.00 upon an account for certain rope sold by sample. The plaintiff brought suit upon the common count!.

<p>1. Where a court or judge under the criminal laws of the State sentences tor adjudges a person to pay a fine or fine and costs of prosecution, the alternative sentence for non-payment of the fine should be imprisonment in the county j¡ail, and not the State prison for a period of time.</p> <p>2. A bailee of property tof which he has the lawful posession cannot commit larceny of it; but if possession is obtained by trick, device or fraud with intent to appropriate the property to his own use, the owner or custodian intending • to part with possession only, the bailee commits larceny when he subsequently appropriates the property.</p> <p>S. A witness testified that he had the custody of an automobile, that he kept it in his shop where it was undergoing Some repairs, that it was removed from the shop and he did not of his own Knowledge know who removed it nor how it was removed, Held insufficient to show lack of consent to its removal on his part, and insufficient to show larceny of the vehicle on the part of the defendant.</p> <p>4. Before the admission of an incriminating fact by a person under arrest charged with a crime is receivable in evidence against him, it must affirmatively appear that the admission was voluntarily made.</p> <p>5. Error in the admission of evidence which is biarmless is not ground for reversal.</p> <p>6. Section 3079 General Statutes of Florida prohibits the prosecuting attorney in a criminal case from commenting upon the failure of the defendant to testify in his own behalf. If the accused does testify in his own behalf upon one phase of the case, but not upon every phase of it, the prosecuting attorney is not permitted to comment upon the defendant’s failure to testify upon every phase of the case.</p>

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

<p>An Appeal from the Circuit Court for Hamilton County; George C’ouper Gibbs, Judge.</p>

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

<p>An Appeal from the Circuit Court for Hillsborough County; 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>Where a question is not duly presented for .determination when a cause is determined on its merits, it may be regardd as having ben waived, and a rehearing will not be granted' to consider the waived point.</p>

A Writ of Error to the Circuit Court for Pinellas County ; O. K. Reaves, Judge. STATEMENT. This is a suit instituted by the defendant in error here, plaintiff In the Circuit Court, against the plaintiff in error here, defendant in the Circuit Court.

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

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Jackson; C. L. Wilson, Judge.</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>An Appeal from a Decree of the Circuit Court within and for the County of Duval; Daniel A. Simmons, Judge.</p>

<p>1 The reference In section 1 of Chapter 6208, Laws of Florida-, Acts Of 1911, to “territory embraced wholly or in part in one or more roiad districts,” has reference to road districts as constituted at the time of the passage of this Act, and does not refer to the creation Of “special road and bridge districts” either partly or wholly within another special road and bridge district.</p> <p>2. • Chapter 7750, Laws of Florida of the extraordinary session of 1918, invested in the county commissioners of the several Counties of the Stiate, the authority to create into a special road and bridge district “territory embraced wholly or in part in one or more road districts, 'or wholly or in part in one or more special road and bridge districts.” (</p> <p>3 The legislature has plenary power to crystalize policies, opinions, ideas and sentiments into statute law, limited only by constitutional prohibitions, Courts do not substitute their will for the will of the legislature, and “judicial tribunals cannot interfere with the legislative discretion, however onerous it may be.” The legislature had the power to include in Chapter 6208, a provision authorizing county commissioners to create into special road and bridge districts “territory embraced wholly or in pp.rt in one or more special road and bridge- districts and, having such power, it also could pass 'a subsequent Act validating any special road and bridge district which had been previously constituted in “territory embraced wholly or in part in one or more special road and. bridge districts,” as was done when it enacted Chapter 7750, Laws of Florida, Acts of the extraordinary session 191S, validating special road and bridge districts theretofore created in “territory embraced wholly or in part in one or more special road and bridge districts.”</p> <p>4 Chapter 7750, Laws of Florida, is a curative Act, general in its nature, and not only invested in the county commissioners of the several counties with the power to create special road and bridge districts in their respective counties in any “territory embraced wholly or in part in one or more special road and bridge districts,” but it Contains ia further provision specially validating all special road and bridge districts theretofore created in “territory embraced wholly or in part in one or more special road and bridge districts,” and declares its provisions shall bjave not only prospective force and effect, but also retroactive force and effect. This Act is constitutional and deals with a subject matter over which the legislature had entire control, and the fact that it is also, retroactive in force and effect does not render it unconstitutional.</p> <p>5. Chapter 8024, Laws of Florida, Acts of 1919, is a special Act passed for the special purpose of legalizing, validating, establishing, and creating “Charlotte Harbor Special Koad iand Bridge District” in DeSoto County, and legalizing and validating the assessment made for the construction of roads and bridges therein; and validating iand legalizing-all warrants issued within said district for and in payment of expenses incident to the creation and establishment thereof, and the building of roads and bridges therein. It becomes the duty of this Court to take judicial notice of this validating Act, and to give it due recognition iand effect.</p> <p>6. Appellant filed a bill to enjoin the maintenance of a special road and bridge district, known as “Charlotte Harbor Special Eoad and Bridge District” overlapping the boundaries of a formerly created special road and bridge district, upon the theory that at the time of the creation of the special road and bridge district the county commissioners, under Chapter 6208, Laws of Florida, Acts of 1911, had no iauthority to create a district overlapping the boundaries of another such special road and bridge district. A demurrer to the bill was sustained by the chancellor, and the bill dismissed. After the case reached this court on appeal the legislature passed Chapter 7750, Laws of Florida, of the extraordinary session of 1918, empowering the county commissioners Of the several counties of the State to create special roiad and bridge districts in “territory embraced wholly or in part in one or. more special road and bridge districts,” and validating the Acts of the county commissioners in establishing special road and bridge districts in “territory embraced wholly or in part in one or more special road iand bridge districts,” this Act being retroactive in effect as well as prospective. And later, in the regular esssion 1919, the legislature passed Chapter 8024, which is a special Act validating the creation of the “Charlotte Harbor Special Eoad jand Bridge District,” and legalizing the assessments made for the construction of roads and bridges therein. Under these circumstances, it is entirely useless for this court to enter into any discussion of the questions involved in the demurrer to the bill of complaint, or to determine whether the chancellor was corrct in his ruling on the demurrer and dismissing the bill, for since that order was made conditions have chianged on account of the legislation just mentioned, and “in consequence of such legislation, the complainant has no standing in court or right to any relief by reason of the matters complained of in said bill.”</p>

<p>1. A bar room may be defined as a place where intoxicating liquors are sold to be drunk on the premises where sold.</p> <p>2. If the provisions of a lease of premises for the conduct of a bar room are permissive and the use of such premises for other purposes is allowed, the lease is not affected by the subsequent enactment of a statute prohibiting the conduct of a bar room in such premises; but if the provisions of the lease are restrictive and limit the use of such premises to that 'of a bar room, forbidding its use for any other purpose, such lease is abrogated by the subsequent enactment of a statute making such use' unlawful.</p>

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

<p>A Writ of Error to the Circuit Court for Baker County; J. T. Wills,. Judge.</p>

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

<p>The instrument set out in the opinion held to be a conditional ' bill of sale and hot ia mortgage.</p>

<p>1. When a declaration in an action for breach of a written contract for the purchase of goods and chattels contains no allegation -or allegations showing that such goods and chattels,, alleged to have been shipped by plaintiff to defendant, were in transit when destroyed by fire, á demurrer to the declaration upon th ground that the contract, cop>y of which is attached. thereto, provided that said goods and phattels were to be at vendor’s risk of damage or destruction while in transit to vendee’s freight depot, is properly overruled.</p> <p>3. It is npt the province 'o.f a demurrer to set out facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleading, which arise on the face thereof.</p> <p>3. When the buyer of personal property, under the terms of a written contract of purchase, must necessarily perform certain obligations before the seller can be required to carry out a particular obligation under the contract, it is not necessary for the seller, in an action iagainst the buyer for failure to carry out such obligations, to allege performance of such particular obligation on his part.</p> <p>4. Where the ruling of the lower court in striking more than one idea is attacked by 'one assignment of error, this court will go no- further in considering such assignment of error, if the lower court was correct in sustaining the motion to strike any one of the plqase.</p>

<p>An Appeal from the Circuit Court for St. Johns County; Georgé Couper Gibbs, Judge.</p>

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

<p>An Appeal from the Circuit Court for Volusia County; Jas. W. Perld'ns, Judge.</p>

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

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

<p>An Appeal from an "Order of the Circuit Court within and for the County of Dade; H. Pierre Brannihg, Judge.</p>

<p>I. Under Section 1522 General Statutes bf Florida, judgments and decrees of the Circuit Courts of this State, and certified copies thereof are admissible as prima facie evidence of the entry and validity of such judgments and decrees.</p> <p>2. Defects in writs of execution do not vitiate siales unless they are such as render the writs void and are not amenable.</p> <p>3. A variation between the amount 'of a judgment and the execution issued thereon does not avoid the sale thereunder where such variation is an apparent clerical error and does not harm the defendant and the judgment is so described in the execution as to clearly identify it.</p> <p>4. A.mortgagee of land who acquires legal title in consequence of a sale under execution against the mortgagor in flavor of a third party, will be held to hold such legal title in trust for the mortgagor, when it appears that the mortgagee promised the mortgagor orally to buy the land for his benefit and to convey the same to the mortgiagor upon payment by him of the purchase price with agreed interest; it also appearing that the mortgagor refrained from further protecting the property from sale, and that the mortgagee acquired the title at a grossly inadequate price.</p> <p>5. Where one buys liand at a judicial sale under a parol agreement to purchase for another, and fails to convey according to the agreement, a constructive trust arises where the promisee owned the estate and the purchase was agreed to be made for his benefit.</p> <p>6. 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>7. One who acquires legal title to land under such circumstances as to create a constructive trust in favor of another is estopped from asserting such legal title for the purpose of dispossessing such other person who held possession at the time such legal title was acquired.</p>

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

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

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

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

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

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

<p>A case of original jurisdiction.</p>

<p>A case of original jurisdiction.</p>

<p>I. When authority is given by statute to laccomplish a stated governmental ipurpose, there is also given by implication authority to ¡do everything (ofecessary accomplish the purpose that is n'ot a violation of law or public policy.</p> <p>2. The authority given to the counties severally to have local option • elections to determine whether there shall be compulsory systematic tick eradication work or compulsory dipping of cattle in the counties may be accomplished by holding elections called by the county commissioners under any system prescribed for holding elections of th|at nature, in which all the “qualified electors” of the county are authorized to vote.</p> <p>S'. In order to justify the courts in declaring invalid as a delegation of legislative power a- statute conferring particular duties or authority upon administrative officers it must clearly appeiar beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the constitution.</p> <p>4. The legislature may not delegate the power t'o enact a law, or to declare what the lp.w shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations „ to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. This principle of the law is peculiarly applicable to regulations under the police power, since the complex and ever-changing conditions that attend and affect such matters m,ake it impracticable for the legislature to prescribe all necessary rules and regulations.</p> <p>5. Authority to make rules and regulations to carry out an expressed legislative' purpose, or for the complete operation ¡and enforcement of a law within designated limitations, is. not an exclusively legislative power. Such authority is administrative in its nature <and its use by administrative 'officers is essential to the complete exercise of the powers of all the departments.</p> <p>6. The exercise of some authority, discretion or judgment may be incident 'or necessary to the performance of administrative or ministerial ditties; but such authority, discretion or judgment is subject to judicial review; and it is not among the powers of government that the constitution separates into departments.</p> <p>7. The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make its own action -depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cann'ot be known to the lawmaking power, and must, therefore, be . subject of inquiry and determination outside of the halls of legislation.</p> <p>8. The authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administartive to a legislative character because the violation •' thereof is punished as a public offense.</p> <p>9. All property rights are held and enjoyed subject to- the fair exercise of the State’s police power to establish regulations that are reasonably necessary t’o secure the general welfare of the State.</p> <p>10. The wisdom and necessity, as well as the policy, of a statute are authoritatively by the legislature.</p> <p>11. The statute and not the administrative regulation defines the offenses and imposes the penalties under Chapter 7345, Acts of 1917. Such statute provides a sufficient primary standard for authorized administrative regulations; no arbitrary authority is conferred upon the administrative board; the validity and reasonableness of permissible administrative regulations are subject to judicial review; and the statute does not delegate legislative power in violation of the constitution. The reasonableness 'of the administration of the statute is subject to review by the courts.</p>

<p>A Writ of Error to the Circuit Court for Duval Couuty; George Couper Gibbs,. Judge.</p>

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

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

<p>1. It is not necessary that an indictment under the statute (Sec. 3261 Gen. Stat.) for maliciously threatening to accuse another of iany crime or offense with intent thereby to extort money or any pecuniary advantage should set out with technical accuracy the crime ’or offense of which the defendant is alleged to have threatened to accuse such other person.</p> <p>2. To adopt a rule requiring the langauge employed in an alleged threiat to be technically sufficient to make out the crime with the commission of which one is threatened to be charged, would render tile statute practically nugatory and would mean that however culpable such person might be, he should be exonear'ted, if in the langauge used in expressing the threat it should develop that he failed to include some element of the crime threatened to be charged.</p>

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

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Pinellas; Wm. G. King, Referee.</p>

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

<p>An Appeal from an Order of the Circuit Court within and for the County of Palm Beach; E. B. Donnell, Judge.</p>

<p>The statute provides that “the common law rule ‘that ia boy under fourteen years of age is conclusively presumed to be incapable of committing the crime of rape’ shall not hereafter he in force in the State of Florida: the capability 'of a person to commit the crime of rape shall be determined by the jury,” and where the testimony iaffords a sufficient legal basis for a finding of “capability” and ample evidence of guilt on the part of a boy not quite fourteen years of age, charged with the offense of carnally knowing and abusing a female child under ten years of iage, a verdict of guilt will not be disturbed.</p>

<p>Awrit of error to the Circuit Court for DeSoto County, John S. Edwards, Judge.</p>

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

<p>' 1. Where the defense of insanity is relied upon, the rule in. force in this State is, that if the evidence introduced tends to rebut the presumption of sanity on the part of the ¡accused, and the jury, after due consideration of all the evidence, entertain a reasonable doubt as to his sanity, it is their duty to acquit.</p> <p>2. The statutory definition of murder, “the unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed,” includes the element of a rational agency, and it devolves upon the State to show this as well as any other element of the crime. The law, however, presumes that all men are sane, and in the ¡absence of evidence indicating a contrary state of mind, both court and jury are justified in acting upon this presumption; and where the evidence establishes the criminal act, and indicates nothing as t'o the mential capacity of the accused to commit the deed, a conviction is not only authorized, but should be had. If, however, there arises from the evidence, coming from any quarter, a reasonable doubt as to the sanity of the accused, the presumption of the law is overcome and he is entitled to an acquittal, unless the State meets and overcomes this reasonable doubt arising in his favor.</p> <p>3. Where insanity of a permanent type, or of a continuing nature, or possessed of the characteristics of an habitual or Confirmed disorder of the mind, as distinguished from temporary or spasmodic mania, or disorders of mind produced by the violence ‘of disease, is shown to have existed a short time prior to the commission of an act, it is presumed to continue up to the time of the commission of the act, unless this presumption is overcome by Competent testimony.</p> <p>4. The verdict of a jury will not be set aside on evidence of facts complicated and contradictory and which require an investigation into the character and credit of witnesses whose testimony it is necessary to Compare and weigh; nor will the verdict be set aside as against the weight of the evidence unless it preponderates so strongly against the verdict that the court cannot conclude such verdict was the result of a due consideration of the evidence; but a verdict that is clearly against the evidence should be set aside. The evidence in this qase considered and held hot to sustain the verdict.</p> <p>5. Where insanity of the defendant is a real issue in a criminal prosecution, the court should charge the jury that if the defendant is acquitted on the ground of insanity, they should so state in the verdict in order that appropriate action may be taken by the court under Section 3992 of the General Statutes of 1906.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Gadsden, E. C. Love, Judge.</p>

<p>A Writ of Error to the Circuit Court for Calhoun County, James H. Finch, Judge ad litem.</p>

<p>1. In a prosecution for an assault with intent to.commit murder with a shotgun, with which the defendant did “beat, bruise, Wound and illtreat” the victim, there was no fatal variance when the evidence showed that the shot fired from the gun by the defendant bruised and wounded the victim.</p> <p>2. It is not error to refuse' to give requested charges the substance of which had been included in chargps given.</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 a Judgment of the Circuit Court within and for the County of Marion, W. S. Bullock, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Broward; E. B. Donnell, Judge.</p>

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

<p>An Appeal from an Order of the Circuit Court within and for 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; John S. Edwards, Judge.</p>

<p>1. If in the examination of jurors upon their voir dire in a criminal case it appears that a certain juror is unqualified, but the Court refuses to sustain the defendant’s challenge for cause, who afterwards' excuses the juror by a peremptory challenge, the court’s ruling will not be regarded as harmful error.</p> <p>2. The question of the qualification of a venireman is a judicial one and is addressed to the court’s discretion; any alleged error in the Court’s ruling upon a juror’s qualification therefore should be made affirmatively to appear, and that it was harmful to the defendant, to constitute reversible error.</p> <p>3. The admission in evidence of a photograph of a house at which a homicide was Committed and a photograph of the interior of the room in which it wias committed, which photograph showed white spots indicating the places upon the flo'or where the persons fell who were shot, is not erroneous where such photographs do not themselves constitute a picture version or interpretation of the character of the actual occurrence.</p> <p>4 It is not error for the Court in the trial of a criminal cause to admit in evidence the defendant’s voluntary and noncommittal account or statement to the sheriff of the transaction upon which the charge against the defendant rests.</p> <p>5. Where in a prosecution for murder the sanity of the defendant at the time of the alleged crime is a material issue, it is proper to receive in evidence the opinions of non-expert witnesses ,as to the defendant’s mental condition when such opinions are based upon facts, circumstances, transactions in the defendant’s life observed and noted by the witnesses who should detail such facts, circumstances and transactions in their testimony.</p> <p>6. Where non-expert witnesses are offered in behalf of defendant as to his mental condition ¡and such witnesses can recall no facts in the defendant’s life tending t’o show. insanity, but are permitted to express their opinions concerning his insanity, the court’s action in allowing such evidence to be introduced at defendant’s request, will not constitute reversible error where he instructs the jury that it is admitted “for what it is worth.”</p> <p>7. A charge requested by defendant which conveys the idea that if the jury considering any portion of the evidence necessary to a conviction, entertain a reasonable doubt as to its verity, they shoould acquit him, is erroneous.</p> <p>S. The reasonable doubt which the law provides shall acquit a defendant is one that arises in the minds of the jury after considering, comparing and weighing all the evidence in the case.</p> <p>9. Where the court charges the jury correctly upon reasonable doubt and presumption.'of innocence, it is not error to refuse an instruction in behalf of the defendant that he is presumed to be innocent and that presumption goes to the jury as independent evidence.</p> <p>10. It is not error for the trial court to refuse requested instructions which are substantially covered by charges which the court has given.</p> <p>11. A requested instruction which conveys the idea that the rule of reasonable doubt applies to each individual juror and segregates the jury as a body into inclividuial parts and requires each one to be free from reasonable doubt before the jury can return a verdict is erroneous.</p> <p>12. In a prosecution of a person for murder where the sanity of the accused at the time of the commission of the alleged offense is a material issue, the doctrine of irresistible impulse or moral insanity is not recognized in this St¡ate as a defense.</p> <p>13. Drunkenness as an excuse for the commission of an unlawful act is no defense, it mitigates no degree of unlawful homicide, except murder in the first degree where drunkenness may be s'o complete as to eliminate the possibility of entertaining a premeditated design to kill, unless as a result of drunkenness there is a fixed or settled frenzy or insanity either permanent or intermittent.</p> <p>14. A requested instruction which is designed, to direct the jury’s attention to any particular witness or set of witnesses, segregate them from the entire body of witnesses, or to separate any fact from all the material facts sought to be etsablished and give such witness or wintesses or fact undue prominence or importance either for the purpose of disparaging the witnesses or strengthening the testimony, is erroneous.</p> <p>15. A requested instruction which directed the jury when ia State witness exhibited bias or illwill towards the defendant or gave evidence that the jury did hot believe, they should nevertheless weigh the evidence of such witness in the light of such bias or illwill, was correctly refused.</p> <p>10. An instruction which directed the jury to acquit the defendant if the jury did not believe that the defendant had understanding or intelligence to commit murder by reason of being intoxicated, was properly refused.</p> <p>17. Intoxication as an excuse for the commission of murder in the first degree does not apply to murder in the. other degrees.</p> <p>18. 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 Citrus; W. S. Bullock, Judge.</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 Lafayette County, M. F. Horne, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Alachua, J. T. Wills, Judge.</p>

<p>An Appeal from the Circuit Court of Pinellas County; O. K. B eaves, Judge.</p>

<p>1. The inhibition placed 'by Section. 3907 General Statutes of 1906 upon the serving Of a grand juror as a member.of the trial jury to try an indictment found by a grand jury upon which he served is expressly made conditional upon ia challenge being interposed by the defendant for that cause.</p> <p>2. The effect of the statute is not to absolutely disqualify a grand juror from service on a trial jury to try an indictment found by a grand jury upon -which he served, but makes such service a ground for challenge for cause which may be waived by the defendant or not as he sees proper.</p> <p>3. By accepting such juror without exercising this right 'of challenge given by the statute, the defendant waives such right and it is too late after verdict to claim the benefit of it.</p> <p>4 This court has often held that the defendant is not entitled as 'of right to an instruction to the trial jury to return ia verdict of not guilty.</p> <p>5. It is not error for the trial court to refuse to give requested instructions which are substantially covered by charges given.</p> <p>6. It is well settled that instructions to the jury must be based upon facts in proof and must be applicable to such facts.</p>

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

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

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

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

<p>1. Where the record does not exhibit the entire charge given to the jury, the appellate court cannot say that the trial court erred in refusing to give a specific charge requested by the defendant.</p> <p>2. Upon an indictment for (an assault with intent to commit murder in the first degree, if the evidence would be sufficient ■ to sustain a conviction of assault with intent to commit murder in either the first or the second degree, a finding of guilt of an assault to commit murder in the third degree is permissible under the statutes.</p>

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

<p>1 Where a person residing in one place makes a proposal to ' purchase property by letter to a person residing in another pliace and such proposal is there accepted, the place of acceptance, and not the place of the proposal, is the place of the contract.</p> <p>2. A plea of privilege goes to the venue and not merely to the propriety of the service of process on the defendant.</p> <p>3. If the suit is not brought in the county where the cause of action accrued or where the property in litigation is, 'or in the county where one of the defendants resides, service of process on a defendant in another county in which he “is to be found” is not authorized by the statute; and a defendant may insist on his privilege of being sued in the propér county.</p> <p>4. Where a plea of privilege is properly denied, the trial court will not ordinarily be held in error for denying a mere request for permission to plead to the merits, where no plea is offered and no showing is made of an existing defense to the merits.</p>

<p>1. No person has the right to gather surface waters that would naturally flow in one direction by drainage, ditches, dams, or 'otherwise, and divert them from their natural course and cast them upon the lands of the lower owner to his injury.</p> <p>2. When facts are sufficiently alleged showing irreparable injury by an unlawful overflowing of lands, equity may enjoin the tort.</p>

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

<p>1. Where there is conflicting evidence on the issues ¡made, and the verdict is not manifestly iagainst the weight of the evidence, the court should not interfere and set aside the verdict of the jury.</p> <p>2. An assignment of error not argued will be treated as abandoned.</p> <p>3. It is not error to refuse a requested instruction where the same points are covered by other instructions given.</p> <p>4. In determining the Correctness of instructions they should be considered as a whole, and in passing upon a single instruction or charge it should be construed in connection with all of the other instructions iand charges bearing on the same subject, and if when thus considered the law appears to have been fairly presented to the jury an assignment predicated upon the giving of such instruction must fail.</p> <p>5. In an action of replevin a verdict of the jury as follows: “We, the jury, find in favor of the plaintiff for” (here followed by a description of' the property, separate valuation as to each item, and total aggregate valuation), unobjected to when rendered, while not commended in matter of form, should be construed in connection with the issues made by the pleadings, the evidence in the cause, and the charge of the court, and when so construed it is equivalent t'o finding all the issues in favor of the plaintiff.</p> <p>6. The plea of not guilty in an action of replevin puts in issue not only the right of the plaintiff to the possession 'of the property described in the declaration, but the wrongful taking and detention thereof, and a verdict of the jury as follows: “We, the jury, find in favor of the plaintiff for” (here followed by a description of the property, separate valuation as to each item, and total aggregate valuation) unobjected to when rendered, while not commended in matter of form, is equivalent to finding the right of possession in the plaintiff, and is sufficient to support final judgment awarding possession to plaintiff.</p>

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

<p>A Writ of Error to the Circuit Court for Wakulla County; E. C. Love, Judge.</p>

<p>An Appeal from tbe Circuit Court for Volusia County; Jas. W. Perkins, Judge.</p>

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

<p>An Appeal from the Circuit Court for Alachua County; J. T. Wills, Judge.</p>

<p>An Appeal from a Decree of the Circuit Court within and for the County of Volusia; Jas. W. Perkins, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Alachua; Thos. W. Fielding, Referee.</p>

<p>A Writ of Error to tbe Criminal Court of Record for Hillsborough County; W. S. Graham, Judge.</p>

<p>A Writ of Error to the Circuit Court for Wakulla County; E. C. Love, Judge.</p>

<p>1. When not controlled by organic law, tbe payment of money from the State Treasury may be made only upon tbe conditions prescribed by statute.</p> <p>2. Mandamus will not be used to control the discretion 'of tbe Comptroller in issuing warrants on tbe State Treasury under Chapter 6S16 Acts of 1915, to “refund to tbe holders” of illegal tax sale certificates the amounts paid to tbe State for such certificates.</p>

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

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

<p>A Writ of Error to a Judgment of the Circuit Court within and or the County of Pinellas, O. K. Reaves, 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>A case of original jurisdiction.</p>

<p>Where the evidence shows an unlawful homicide, but does not show the Commission of murder in either the first or the second degree, ia judgment upon a verdict of murder in the second degree will be reversed.</p>

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

<p>1 Upon an accounting in a case where a master has taken and reported, the evidence, in which evidence there is some conflict, and the chancellor has reviewed the evidence and made a finding as to the amount due by one of the parties to the 'other and renders ia decree for such sum, and there is sufficient evidence in the record to justify such finding, the conclusions of the chancellor as to the amount due will not be reversed.</p> <p>2. Where a person performs labor for a corporation Conducting a drug store business, “as its manager, clerk and bookkeeper,” such person has, under the provisions of Section 2198 of the General statutes 'of Florida, 1906, ¿i lien for whatever s,um may be due for work and labor.</p> <p>S. In proceedings in chancery to enforce statutory liens for work and labor done, it is error to decree an allowance for an attorney’s fee to the prevailing party without proof of the reasonableness of the amount allowed. When the decree is otherwise proper it may be affirmed upon entering a remittitur for the attorney’s fee erroneously ^warded.</p>

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

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

<p>1. The failure of a municipality to keep its streets in “proper condition” as required by its charter may result from a defective condition of a street itself or may be due to ian 'obstruction upon such street, so that, the duty of a city to keep its streets “in proper condition” may be breached either by allowing a street itself to become in a defective condition or by allowing obstructions to be placed on and be permitted to remain upon such street.</p> <p>2. The Charter 'of the City of Tampa contains the following provision (Section 59, Chap. 5363, Acts of 1903) : “No suit shall be maintained against the city for damages arising out of a failure to keep in proper condition any sidewalk, pavement, viaduct, bridge, street or other' public place, unless it shall be made to appear that the damage alleged is attributable to the negligence of the city, and that written notice of such damage was, within thirty days after the receiving of tlie injury alleged, given to the city attorney with such reasonable specifications as to time and place and witnesses as would enable the city officials to investigate the matter.” Held that in action against the city, such ias is described in this statute, it is incumbent upon the plaintiff to allege and prove that the notice therein required to be given was duly given before he will be entitled to recover.</p>

<p>1. The directors of an insolvent corporation occupy toward the creditors of the corporation a fiduciary relation in that the properties of the corporation constitute ia fund for the payment of the corporation’s debts which fund the directors are charged with managing to the best interest Of the creditors.</p> <p>2. The directors of an insolvent corporation who obtain a conveyance to themselves of all the properties of the corporation upon a promise to pay the debts of the corporation by secreting information concerning their opinion as to value of the properties that they may gain profit for themselves, and in pursuance of this design urge upon 'the other stockholders and creditors their agreement to the transfer of the properties, will be deemed'to have committed a fraud upon the creditors of the corporation, entitling them to a cancellation of the deeds conveying the properties and to the declaration of a lien thereon for the payment of their debts.</p>

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

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

<p>In an action on a promissory noté, purported pleias that the defendants “traverse the allegations in the plaintiff’s declaration as to the amount and reasonableness of the amount of damages and attorney fees alleged, and claim the right to be present upon an enquiry of damages and attorney fees and contest the am'ount and reasonableness of the amounts,” are not such pleas as are contemplated by Rule 33 of the Circuit Court Rules in Daw Actions, which provides that' “where a rule day occurs in term, and such rule day is the day upon which, the defendant is held to file his plea or demurrer to the declaration, any issue of fact arising upon such plea shall n'ot be heard during that term, unless by consent of parties, and it was not error to submit the cause to a jury as on a default, counsel for the defehdants having due notice of the action taken, and could have been present if so desired.</p>

<p>A Writ of Error to .the Circuit Court for Gadsden County, E. C. Love, Judge.</p>

<p>1. Under Section 1, Chapter 6515, Acts of 1913, oranges and grapefruit that show an average on the trees of one-hralf color, indicating ripeness, shall be deemed to be mature and fit for consumption, and may be shipped or sold without being submitted t'o the acid test provided for in the statute.</p> <p>2. Where the fruit do not show an average on the trees of onelialf color, indicating ripeness, the acid test provided for in the statute, may be made, and oranges or grapefruit that contain less than 1.30% and 1.75% (respectively, of acid calculated as crystallized citric acid are considered mature.</p> <p>3. The primary test 'of maturity provided for by the statute is color. The acid test is a secondary one, not required where the oranges or grapefruit show an average on the trees of one-lialf color, indicating ripeness. When they meet the color test they will be deemed mature and fit for consumption, and may be shipped or sold without being submitted to the acid test.</p>

<p>1. The question of whether admissions and confessions are made freely and voluntarily is for the court to determine, and to enable it to do this, there should be a preliminary investigation by the court in the absence of the jury.</p> <p>2. While it is the better course to interpose objections to the introduction of evidence of admissions or confessions, the failure to do So does not relieve the trial judge of the duty to satisfy himself by an examination conducted in the absence of the jury that the admissions were made freely and voluntarily before admitting them.</p> <p>3. Testimony 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 Santa Eosa; A. G. Campbell, Judge.</p>

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

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

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

<p>On Petition for Eehearing.</p> <p>The questions- passed upon in this case at this time or when the case was here upon a former hearing are not the same as the questions passed upon by the Supreme Court of the United</p> <p>States in tile case of Brooks-Scanlon Co. v. Railroad Commission- of Louisiana, 40 Sup. Ct. Rep. 183, and there is no conflict in tile conclusions reached in the two cases.</p>

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

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