Volume 80 — Florida Reports

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

<p>An Appeal from the Circuit Court for St. Lucie 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. Reeves, Judge.</p>

<p>1. Where the evidence does not expressly locate the crime as having been committed in the county charged in the indictment, but there are in the evidence references to various localities and landmarks at or near the scene of the crime, known by or probably familiar to the jury, and from which they may have reasonably concluded that the offense was committed in the county alleged, it- is sufficient proof of venue.</p> <p>2. Venue need not be established beyond a reasonable doubt. If the evidence raises a violent presuipp.tion that the offense was committed within the county, or if the evidence refers to localities and landmarks at or near the scene of the alleged offense, known or probably familiar to the jury, from which they may reasonably infer that the offense was committed in the county, it will be sufficient.</p> <p>3. To render dying declarations admissible, the judge must be fully satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope of recovery. This absence of all hope of recovery and appreciation by the deceased of his speedy and inevitable death is a preliminary foundation that must always be laid to make such declarations admissible. It is a mixed question of law and fact for the judge to decide before permitting the introduction of the declaration itself. It is not necessary that such preliminary test should consist of express utterances, but it may be gathered from any circumstances or from all the circumstances of the case.</p> <p>4. In the trial for a capital offense if an adult defendant unobserved by the court or its officers voluntarily goes into a room adjoining the court room for purposes of his own and remains for a -very few moments while a witness for the State is being examined, or while a proposed juror is being examined on his voir dire, the defendant being represented by counsel, such temporary and voluntary absence from the court room during the progress of the trial is not a violation of the defendant’s organic or statutory rights, and will not cause a reversal of a judgment of conviction that is amply supported by competent evidence, and it does not appear that the defendant could have been harmed or prejudiced by his voluntary absence for such a brief time during the trial.</p>

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

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

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

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

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

<p>An Appeal from the Circuit Court for Calboun County, C. L. Wilson, Judge.</p>

<p>A Writ of Error to the Criminal Court of Becord for Dade County; J. Emmet Wolfe, Judge.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Duval, Daniel A. .Simmons, Ju,dge.</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 an Order of the Circuit Court within and for the County of Osceola; James W. Perkins, Judge.</p>

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

<p>1. 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 influenced by considerations outside the evidence, this court will not disturb the verdict.</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 be reversed, unless, after allowing all reasonable presumptions of 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>1. An execution issued on a judgment, called a writ of fieri facias, is a lien upon the personal property of the defendant in execution from the time such writ shall be delivered to the sheriff.</p> <p>2. Lands and tenements, goods and chattels, equities of redemption in real and personal property, and stock in corporations are subject to levy and sale under execution.</p> <p>3. A mortgage, in this State, is. a specific lien upon property, and is not, of itself, a conveyance of the legal title.</p> <p>4. A mortgagee, either before or after default in payment, has no title by virtue of his mortgage to the mortgaged real estate. His interest is simply a specific lien for the security of the debt mentioned in the mortgage, and he can acquire the legal title as against the mortgagor, or his grantees, only by outbidding every other pferson at the foreclosure sale.</p> <p>5. A mortgage of real estate is regarded as an accessory to the debt secured by the mortgage, and the assignment of the debt ipso facto carries with it the mortgage security.</p> <p>6. As a general rule the lien of an execution operates upon and binds all property, real or personal, which is the subject of levy and sale in obedience to its mandate.</p> <p>7. An execution is a lien only upon such property as the writ may be levied lipón; and under the statute only “lands and tenements, goods and chattels, equities of redemption in real and personal property and stock in corporations” are subject to levy and sale under executions, therefore, a mortgage upon real estate, being merely a contract lien upon the land, is not subject to levy and consequently not subject to the lien of an execution.</p>

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

Writ of Error to the Circuit Court for Dade County; H. Pierre Brauning, Judge. STATEMENT.

<p>1. On an application for a bond, issue under the provisions of Section 2, Chapter 6542, Acts of 1913, the County Board of Public Instruction has discretionary power to determine the amount of bonds required for the purposes set forth in the petition.</p> <p>2. If no appeal is tafeen from a decree validating and confirming a school bond issue within twenty days from the rendition of the decree, such decree is forever conclusive of the validity of the bond. -</p> <p>3. An order of the Chancellor vacating a decree of confirmation and validation of a school bond issue, entered more than twenty days after the rendition of the validating decree, is void.</p>

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

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

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

<p>1. Although time may not be of the essence of the original contract to sell and convey land, it may subsequently be made so by express notice given by a party to the contract who is not in default to the other party who is in default, requiring the contract to he performed within a stated time, which must he a reasonable time according to the circumstances of the case.</p> <p>2. Under a contract for the sale of land where no definite date has been agreed upon for the consummation of the contract, in order to constitute time of the essence of the transaction, the party to the contract entitled to insist upon performanee should fix -a definite date in the future for performance, of which the other party thereto is duly notified, which affords to such party reasonable time within which to comply.</p> <p>3. Where rescission of a contract is not by mutual consent, a party thereto who is not himself in default and who elects to rescind must, in order to affect rescission, give notice to the opposite party of his intention to rescind with reasonable time thereafter within which to comply with the contract.</p> <p>4. Where the record title of a vendor seeking specific performance of an agreement to sell and convey land is defective, the lapse may be supplied by parol proof of adverse possession under color of title for the statutory period sufficient to establish ownership, even though the contract calls for a perfect title, but not a perfect record title.</p> <p>5. From the time the owner of land enters into a binding contract for its sale he holds the same in trust for the purchaser and the latter becomes a trustee of the purchase money for the vendor, and being thus in equity the owner, the vendee must bear any loss which may happen and is entitled to any benefit which may accrue' to such land in the interim between the agreement and the conveyance thereof to such vendee.</p>

<p>Writ of Error to a judgment 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 Hillsborough; F. M. Robles, Judge.</p>

<p>1. An injunction should not be granted when the remedy at law is adequate.</p> <p>2. In cases where there is a plain and adequate remedy at law, a resort to a court of chancery is unnecessary and improper.</p> <p>3. Where it appears from the allegations of a bill 'that there is an adequate remedy at law, there is no jurisdiction in a court of equity to hear and determine the matter in controversy.</p>

<p>An Appeal from a Decree of the Court of Record within and for the County of Escambia; C. Moreno Jones, Judge.</p>

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

<p>An Appeal from the Circuit Court for DeSoto County; Geo. W. Whitehurst, Judge.</p>

<p>1. 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 was not governed by the evidence a refusal of the trial court to grant a new trial on the ground of the insufficiency of the evidence to support the verdict will not be disturbed by an appellate court.</p> <p>2. A verdict of guilty of assault with intent to. commit murder in the second degree upon a charge of assault with intent to commit murder in the first degree will be sustained if the evidence shows an assault with intent to commit murder in the first degree or in the second degree as defined in the statute, sinec the latter offense is regarded as being included in the former.</p>

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

<p>Writ of Error to a Judgment 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 Wakulla County; E. C. Love, Judge.</p>

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

<p>1. Nothing can he received as a defense to an application for a writ of assistance to affect the decree in aid of which the writ is asked, hut the jurisdiction of the court in the original cause is open to question.</p> <p>2. Where constructive service hy publication is substituted hy statute for personal citation, a strict compliance with the statutory provisions is essential to confer jurisdiction.</p> <p>3. Where the law authorizes described land to be made defendant in a suit for enforcing a lien thereon, there should be no material variance between the land described in the pleadings and that described in the notice by publication, and where the description in the notice as published is ambiguous and may describe two distinct bodies of land, such description is too indefinite to constitute a valid notice by publication.</p>

<p>1. An uncertain description of property in the caption of a citation in a proceeding in rem may be aided and the notice made sufficient by a correct description in the body of the citation, since reasonable diligence would require the reading of the entire notice.</p> <p>2. Where a petition for writ of assistance shows a prima facie right in petitioner, it becomes the duty of a defendant in his answer, to set up his rights and claims fully and in such manner that his defense. may be understood by the petitioner and by the court.</p> <p>3. If an answer to a petition for writ of assistance sets up a defense, and the petitioner fails to reply thereto, proper practice requires the court to take as true the facts stated in the answer, but if the answer shows no right on the part of the occupant to contest the petitioner’s claim of right to possession, the court may ignore the answer and award the writ.</p> <p>4. The purchaser of property at a public sale under a foreclosure decree filed his petition for writ of assistance against parties who were strangers to the foreclosure proceedings and who by their answer failed to show that they had any interest in the property except that of bare possession and failed to show when such possession began, but who assumed to defend on behalf of others as alleged owners: Held, That where the. court in the foreclosure proceeding appeared on the face of the record to have had jurisdiction, the regularity of such proceeding could not be put in issue by such persons in resisting the application for a writ of assistance.</p> <p>5. Courts are bound to take notice of the limits of their authority, and'if want of jurisdiction appears at any stage of the proceeding, originál or appellate, the court should notice the defect and. enter an appropriate order, but where the jurisdictional steps prescribed by statute in a proceeding in view appear on the face of the record to have been regularly taken, the court has no power to look behind the record into alleged extrinsic facts tending to impeach the jurisdiction, at the instance of one who shows no title or interest in the property other than bare possession, and who seeks to raise such question on behalf of others.</p>

<p>A Writ of Error to the Criminal Court of Record for Dade County; J. Emmet Wolfe, Judge.</p>

<p>1. A party seeking to have a deed declared to be void and delivered up to be cancelled on the ground of undue influence exerted over the mind of the grantor must plead the facts constituting such undue influence, the rule of pleading in such cases being the same as in cases of fraud.</p> <p>2. The term “undue influence” is not regarded as being susceptible of precise definition, but in order to render a deed void the undue influence relied upon must be of such a character as to overcome the will, deprive the grantor of free agency, and substitute the will of another for that of the grantor.</p> <p>3. ' Where a bill contains allegations that deeds of conveyance were made without consideration, that the grantor and grantee were parent and child, and that undue influence was exerted over the grantor in the execution of the deeds, such allegations of ultimate facts or conclusions not being negatived by other specific facts alleged, a demurrer thereto may be properly overruled since, on the admission of the demurrer, it does not appear as a matter of law that undue influence was not used, and under such allegations a case entitling the complainant to relief may be made by appropriate anfl .sufficient proof showing that in effect the grantee’s will was substituted for that of the grantor in the execution of the deeds.</p> <p>i. Delivery of a deed is essential to the passing of the title to the property intended to be conveyed to the grantee.</p> <p>5. The placing of a deed in the hands of a third person for tinture delivery to the grantee may constitute a delivery, but to accomplish this, purpose it must be made to appear that in placing the deed in the hands of such third person the grantor intended to, and, in fact, did relinquish and surrender all dominion and control over such deed.</p> <p>6. Though the allegations of a bill of complaint be abstract and general and largely in the nature of asserted conclusions, yet if under the allegation^ a case entitling, the complainant to relief as prayed: can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.</p>

<p>1. The State Constitution is a limitation upon the power of the Legislature, and. unless legislation duly passed be clearly contrary to some expressed or implied prohibition in the Constitution the courts have no authority to pronounce it invalid.</p> <p>2. The United States Constitution is also a limitation upon the powers of the States.</p> <p>3. One who assails an act of the Legislature as unconstitutional has the .burden of showing beyond a reasonable doubt that such act is in conflict with some designated provision of the State or Federal Constitution.</p> <p>i. The constitutional prohibition against the passage of ex post facto laws is confined to laws respecting criminal punishment and has no relation to retrospective legislation of any other character.</p> <p>5. The constitutional provisions against impairing the obligation of a contract apply only to voluntary contracts and not to obligations imposed by law without the assent of the party bound. That class of obligations aptly styled “quasi contracts” are not embraced within said provisions.</p> <p>6. The passage of retrospective or retroactive legislation in Florida is not in terms forbidden by the State or Federal Constitutions, and such legislation is therefore valid unless invalid for .some reason other than because of its retrospective nature.</p> <p>7. Generally speaking, vested rights can not be disturbed by retrospective legislation, but in its application as a shield or protection, the term vested rights is not used in any narnow or technical sense or as importing a power of legal control, merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect and of which the individual could not be deprived arbitrarily without injustice.</p> <p>8. Generally speaking, the moral aspect of the right claimed may be given consideration in determining whether such right is protected by the due process of law clause of the Constitution, and if not morally right, such claim may be taken away by legislation retrospective in its nature.</p> <p>9. The Board of Commissioners of Everglades Drainage District is a public quasi-corporation, and as such a governmental agency of the State for certain definite purposes, having such authority only as is delegated to it by law. It, therefore, had no power to charge toll for the passage of boats through its locks until authorized to make such charge by Chapter 7865, Acts of 1919, but having assumed to make such charge and having collected tolls prior to said act, it was competent for the State to ratify and validate such unauthorized charge and collection of tolls, notwithstanding a suit was then pending against said board to recover tolls so paid.</p>

<p>1. The provisions in a standard fire insurance policy requiring the insured to notify the company in writing of the loss and to furnish proof of such loss are conditions precedent to the right to sue, hut the failure to comply with said provisions promptly does not invalidate the policy or work a forfeiture of the rights of the insured in the absence of a stipulation to that effect.</p> <p>2. An objection to the introduction in evidence of the original fire insurance policy sued on because of variance between the names of the persons signing as president and secretary as shown by said original policy and the copy attached to the declaration was properly overruled when the court was unable to distinguish from the signatures whether they were the same or not and when the company’s agent who issued the policy and whose name was properly given in the copy, identified the policy as the one signed by him and delivered to the plaintiff covering the property in question.</p> <p>3. A motion to strike testimony must not be too broad. If it includes any proper testimony it should be denied.</p> <p>4. Where a question propounded to a witness is not shown by the record to have been answered, an assignment of error based on an objection thereto must fail.</p> <p>5. A question of fact upon which the evidence conflicts is peculiarly within the province of the jury to decide.</p> <p>6. Where a fire insurance policy provides that loss shall not be payable until sixty days after the proof of loss has been furnished, interest on the amount due does not run prior to said time.</p> <p>7. Where a motion for a new trial is sufficient to direct the attention of the trial court to harmful error in the general charge given, such error should be corrected.</p> <p>8. The courts should exercise care and caution in decreeing attorney's fees to the end that only reasonable fees for services rendered be allowed, but where a cause is brought to an appellate court, not to have the amount allowed for attorney fees alone reviewed, but other questions as well, the allowance for attorney’s fees will not be disturbed when it appears not to be excessive in view of services rendered in both the trial and appellate courts.</p> <p>9. Trial courts should not fix the amount of attorney’s fees in anticipation of a possible or probable appeal or writ of error.</p>

<p>1. After a demurrer to the whole bill is overruled a second demurrer to the whole bill is not allowable.</p> <p>%. To an amended bill the defendant has a right to interpose a new demurrer, notwithstanding a previous demurrer to the bill has been overruled.</p> <p>3. The orderly procedure for testing the legal sufficiency of a bill, whether before or after amendment, is by demurrer, and in this way only can the question be saved for review on appeal.</p> <p>4. ^The execution, of notes and a mortgage on real estate to secure the payment of such notes by individuals as trustees is sufficient to put persons dealing with such instruments upon inquiry of the powers possessed by such individuals.</p> <p>5. Where the validity of instruments sought to be enforced depends upon whether the persons' executing such instruments had power to do so, it is necessary to allege and prove the existence of such power.</p> <p>6. Where complainant relies for his cause of action on a ratification of an unauthorized contract by a trustee or agent he must set out the facts necessary to constitute such ratification.</p> <p>7. When complainant asserts that validity has been imparted to an instrument invalid in its inception because of absence of authority in its makers to execute it, and upon the validity of which his right of recovery depends, he should set up the facts imparting such validity in order that defendants may know of what the cause of action consists.</p>

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

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

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

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

<p>1. It is not error for the trial court in a suit for conversion of logs to permit plaintiff over objection of defendant to ask on direct examination as to what the market price of standing timber was at the time of the alleged conversion, and especially where it is shown that the questions and answers immediately following tend to indicate what the value of the logs made from the said standing timber would he at the time of conversion.</p> <p>2. Where trees are unlawfully but not wilfully cut, and the cut timber, a chattel, is converted, the measure of recovery in trover is the value of the timber at the time and place of conversion, with interest, and there should be no deductions for labor performed upon the timber anterior to the time that the conversion was consummated by actual removal from owner’s land.</p> <p>3. Where there is a taking of chattels with intent to exercise over them an ownership inconsistent with the real owner’s right of possession, there is a conversion.</p> <p>4. The essential elements of a conversion is a wrongful deprivation of property to the owner; neither manucaption nor asportation is an essential element thereof.</p>

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

<p>A writ of error to the Circuit Court for DeSoto County; Geo. W. Whitehurst, Judge.</p>

<p>Writ of Error to a Judgment of the Circuit Court Within and for the County of Orange; C. O. Andrews, Judge.</p>

<p>A Writ of Error to tbe Criminal Court of Record for Dade County; J. Emmet Wolfe, Judge.</p>

<p>A Writ of Error to Circuit Court of DeSoto County; Geo. W. Whitehurst, Judge.</p>

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

<p>A Writ of Error to the Circuit Court for DeSoto County; George W. Whitehurst, Judge.</p>

<p>1. At common law the father has a paramount right to the custody and control of his legitimate minor children, subject only to lawful regulations for' the benefit of his children.</p> <p>2. Where an infant girl’s mother died at its birth and when the child was three days old its father verbally committed its care and custody to its maternal grand parents until the father could otherwise provide for its proper care, and when the child is about four years old, the father, who, with his other children, live with, his parents, is entitled to the custody of the infant girl, particularly when allot the home conditions of the maternal grand parents are not so desirable and the father’s home with his parents is a proper place for the child's welfare, even though the personal attentions of the maternal grand parents to the infant girl are in every way commendable.</p>

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

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

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

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

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

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

<p>Writ of Error to a Judgment 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>An Appeal from orders of the Circuit Court within and for the County of Lee; George W. Whitehurst, 'Judge.</p>

<p>A writ of error to a judgment of the Circuit Court within and for the County of Lee; John S. Edwards, J udge.</p>

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

<p>1. A valid agreement extending the time for the payment of an obligation has the effect of suspending the right to enforce payment during the period of such extension.</p> <p>2. In order to be effectual an agreement extending the time for. the payment of an obligation must be supported by a sufficient consideration. A mere agreement for delay for no definite time and without consideration is not binding.</p>

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

<p>Writ of Error to a Judgment of the Circuit Court Within and for the County of Columbia; M, F Home, Judge.</p>

<p>An Appeal from a' Decree of the Circuit Court Within and for the County of Okaloosa; D. J. Jobes, Judge.</p>

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

<p>A Writ of Error to the Court of Record for Escambia County; C. Moreno Jones, 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 order of the Railroad Commissioners commanding a railroad company “to re-establish, reinstate and operate” between points in this State, one of the points being near the State line, two passenger trains that had been operated as interstate trains, but had been discontinued on account of inability. to get coal for engine fuel, will not be enforced by mandamus, since even if on the facts shown the order is not in effect to reinstate an interstate train, not within, the authority of the Commissioners, the circumstances shown as to local conditions, the service being rendered by other trains, the meagernes of the public necessity and convenience to be served by added trains, the large expense to the carrier and its destructive effect upon the carrier’s property rights, clearly show that the order is not “reasonable and just and such as ought to have been made in the premises,” within the meaning of the statute under which the authority is exerted; the facts and circumstances of the case not making applicable here the principles applied in Missouri Pac. R. Co. v. State of Kansas ex rel. Railroad Com’rs, 216 TJ. S. 262, 30 Sup. Ct. Rep. 330.</p>

<p>A writ of error to the Circuit Court for Sumter County; W. S. Bullock, Judge.</p>

<p>1. A city ordinance which, prohibits the holding of any public meeting or meeting of any character upon any street of the city or within any city park without first obtaining permission in writing from the mayor or a majority of the city councilmen, in the absence of any charter provision definitely and specifically empowering the city to prohibit public meetings in the streets or parks of the city, is void for unreasonableness.</p> <p>2. Under the general power granted to municipalities to preserve the public peace and morals and for the suppression of riots and disorderly assemblies, a city’s power over public meetings exists when they create public disturbances, become nuisances or create or threaten some tangible public or private mischief.</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 the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

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

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

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

An Appeal from the Circuit Court for Hillsborough County; F. M. Robles, Judge. STATEMENT. On October 25th, 1917, the appellant, hereinafter referred to as the complainant, by its solicitor, John W. Bull, an attorney at law, of Tampa, hied its bill in the Circuit Court of Hillsborough County, against H ,M. Pittman and wife, for the foreclosure of a mortgage made and executed by Pittman and wife in favor of L. J. Cooper, and which had been assigned by Cooper to the complainant.

<p>A writ of error to the Court of Record for Escambia County; E. C. Love, Judge.</p>

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

<p>In attachment proceedings the statutory affidavit, and the writ and motions addressed thereto, with the orders made thereon, should on writ of error be evidenced to the Appellate Court in the record proper and not in the bill of exceptions; and where such matters appear only in the bill of exceptions they cannot be considered by the Appellate Court.</p>

<p>1. The change in the name of a corporation has no effect whatever upon its property, rights or liabilities. It continues as before, responsible in its new name for liabilities previously contracted or incurred, and has the right to sue on contracts made or liabilities incurred to it before the change.</p> <p>2. After the name of a corporation has been changed it should, by proper averments to show the change, sue and be sued by its new name.</p> <p>3. The change in the name of a corporation has no more effect upon its identity a,s a corporation, than the change in the name of a natural person has upon his identity.</p> <p>4. Where a person is sued by his wrong name he may appear and defend the action by his correct name.</p> <p>5. Where a person is sued by a wrong name and he appears and submits himself to the jurisdiction of the court by his true name he is not in default, and a decree pro confesso should not be entered against him.</p> <p>6. When a person is sued by a wrong name and appears by his right name, it is proper to amend the pleadindgs to correspond with the name by which he appears.</p> <p>7. Where the name-of a. party is manifestly a charitable, educational or commercial, manufacturing or financial one, such as are usual subjects of incorporation and not one common to copartnerships or individuals, it should import a corporation, and whether it does or not should as a general rule be left to judicial knowledge.</p> <p>8. Where a party is sued as a corporation it is not in default because it appears by its name without describing itself as a corporation.</p> <p>9. Where a party sued by a wrong name wishes to appear and defend on the merits, he may waive his right to plead in abatement, and by appropriate averments, showing that he is the identical party sued, appear and plead to the merits by his true name.</p> <p>10. Where a motion is grounded on facts that are neither apparent from the face of the record, or papers on file in the case, nor within the judicial knowledge of the court, it must b°e supported by affidavits or other proof.</p>

<p>Where a petition for a rehearing does not suggest anything which gives the court reason to apprehend that its judgment is 'erroneous a rehearing should be denied.</p>

<p>A writ of error to the Circuit Court for Dade County, H. Pierre Branning, Judge.</p>

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

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

<p>A. dwelling house loses its character as such within the meaning of Section 3281, General Statutes of Florida, providing punishment for breaking and entering a dwelling house, when the occupant leaves it without the intention of returning to occupy it as a dwelling.</p>

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

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

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

<p>An Appeal from an Order of the Circuit Court within and for the County of Osceola; Charles O. Andrews, Judge.</p>

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

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

<p>After a trial on the merits without objection and verdict upon the matters embraced in the declaration and plea, the mere absence of a similiter to the plea is not alone ground for reversal, the similiter not having been insisted upon by the defendant nor required by the court. - Failure to file a similiter in such case is waived- by going to trial.</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 tbe Circuit Court for Hernando County; W. S. Bullock, Judge.</p>

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

<p>1.. In an action for damages for breach of a warranty a plea which avers that the parties had.agreed to settle by arbitration any differences arising from the transaction is bad1 because the averred agreement is an attempt to settle by arbitration the right to maintain an action for breach of contract and thus oust the courts of their jurisdiction.</p> <p>2. In an action for damages for breach of an implied warranty that a certain feeding stuff sold to plaintiff did not contain Rice Hulls, pleas averring that the commodity was sold to the plaintiff under a complete description and specification and that the goods met in every particular the description and specification set forth in the contract of sale set up a good defense.</p> <p>3. There' is no implication of warranty in conflict with the express terms of the agreement.</p>

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

<p>An Appeal from an Order of the Circuit Court within and for the County of Bradford; James T. Wills, Judge.</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>A ■ writ of error to a judgment of the Circuit Court within-and for the County of Bay; D. J. Jones, Judge.</p>

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

<p>An Appeal from an Order 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 Alachua County; James T. Wills, Judge.</p>

<p>1. The Supreme Court has no appellate jurisdiction iu cases of conviction of misdemeanor in the Criminal Courts of Record.</p> <p>2. Where the record shows a want of appellate jurisdiction in this court, the writ of error will he dismissed sua sponte.</p> <p>3. The conviction in this ease being in a Criminal Court of Record and for a misdemeanor, the Supreme Court has no jurisdiction to review the judgment on writ of error, therefore the writ of error taken herein is dismissed.</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 Court of Record in and for the County of Escambia; C. Moreno Jones, 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 DeSoto- County; George W. Whitehurst, Judge.</p>

<p>1. Under the plea of the general issue in debt upon simple contract, express or implied, the burden is upon the plaintiff to prove every material fact which is alleged in his declaration.</p> <p>2. Where a verdict is wholly unsupported by the evidence, it is the duty of the trial court to set it aside upon motion.</p>

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

<p>Where the head of a family residing in this State lives with his family as their home on premises owned by him, and for purposes of business and education, temporarily removes his family to another place, with an intent to return to the home place, and without relinquishing such intent, eventually returns with his family to their home place and occupies it as a homestead before executions are levied on it under judgments obtained during the temporary absence of the family from the home place, the property is exempt from forced sale for the owner’s obligations not covered by those mentioned in the homestead Article of the Constitution, the homestead character of the' property not being lost by abandonment, the place having been actually occupied as the home, and the circumstances of the absence therefrom being consistent with a continued intent to return to and to occupy and claim the place as the family home.</p>

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

<p>An Appeal from Orders of the Circuit Court within and for the County of Alachua; James T. Wills, Judge.</p>

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

<p>An Appeal from a Decree of the Circuit Court within and for the County of Santa Rosa; A. G. Campbell, Judge.</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>A Writ of Error to the Circuit Court for Duval County; Daniel A. Simmons, Judge.</p>

<p>An appeal from a decree of tbe Circuit Court within and for the County of Hillhborough; F. M. Robles, Judge.</p>

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

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

<p>1. An indictment charging o-ne with the offense of manufacturing alcoholic and intoxicating liquors in a county where the sale of liquors had been prohibited by law, and such offense is alleged to have been committed after the passage of Chapter 7736, Laws of 1918, is not bad because it contains some allegations of fact required by Chapter 7283, Laws of 1917, as to the sale of intoxicating liquors having been prohibited by law in the county where the offense was alleged to have been committed.</p> <p>2. Where a bill of exceptions is made up under Rule 103, no assignment of errors is required to be presented to the judge when application is made to him to authenticate the bill.</p> <p>3. A charge in an indictment that the defendant manufactured alcoholic and intoxicating liquors is not supported by evidence that the defendant had in his possession four gallons of “buck,” without any evidence that the liquid was either alcoholic or intoxicating.</p> <p>4. To support an indictment charging the defendant with the manufacture of aicoholic and intoxicating liquors as a second offense of a like character, it is necessary for the State in proof of the latter allegation to produce the record of the prior judgment of conviction.</p>

<p>A Writ of Error to a Judgment of the Circuit Court within and for the County of Bay; C. L. Wilson, 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>1. Evidence of threats by the accused against the class of persons or race to which the- deceased belonged are admissible in evidence against the accused upon a trial in which he is charged with the murder of a member of such class or race.</p> <p>2. Evidence of a physician who examined the body of deceased, stating that his skin was “yellow," with evidence of another witness described as “colored,” who was before the jury and who testified that deceased was her father and lived with her, is sufficient proof that the deceased was a negro to render admissible evidence of an alleged threat by plaintiff in error that he was going to “kill me a damn nigger and pay for him.”</p> <p>3. A physician who examined the body of deceased testified that his death resulted from a gun shot wound; that the bullet entered the “left chest” of deceased, passing through his body, “penetrating or cutting part of the heart and the lower part of the lung,” causing his death. Another witness testified that plaintiff in error admitted that “he (plaintiff in error) took his gun and killed him (deceased.)” 'Held: that this is sufficient proof of the corpus delicti to sustain a verdict of guilty of manslaughter.</p>

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

<p>Where the allegations of a declaration state the essentials of a cause of action and the exhibits to the declaration in effect sustain the allegations, a demurrer to the declaration should be overruled.</p>

<p>A Writ of Error to tbe Circuit Court for Putnam County; Jame» T. Wills, Judge.</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>An Appeal from an order of the Circuit Court within and for the County of Hillsborough; F. M. Robles, Judge.</p>

<p>An Appeal from an order of the Circuit Court within and for the County of Dade; EL Pierre Branning, Judge.</p>

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

<p>Where the evidence, though conflicting, affords a sufficient legal basis for a verdict, and no material or harmful errors of law or procedure appear, the judgment will be affirmed.</p>

<p>1. In an action by a material man on a bond given by a contractor to the county under the provisions of Chapter 6867, Laws of 1915, who has entered into a contract for the construction of public works, neither the plea of “never was indebted” nor the plea of “never promised” is applicable where the materials alleged to have been furnished by the material man were supplied to a subcontractor.</p> <p>2. Chapter 6867, Laws of 1915, requiring that all bonds taken by the State or county for the performance of a contract for the construction of any public w'ork shall contain a provision that the contractor or contractors shall promptly make payments to all persons supplying him or them any labor or material, and further providing that suit may be brought in the name of the obligee in the bond for the use and benefit of any person, firm or corporation who shall have furnished any labor or material in the prosecution of the said work against the contractor and sureties on the bond to recover the amount due such person, firm or corporation on account of labor or materials so furnished, applies in a case where labor or materials is furnished to a sub-contractor, and in such case suit may be maintained against the contractor and sureties on the bond to recover the value of the labor and materials so furnished.</p> <p>3. The right of action provided by the statute in behalf of any person, firm or corporation supplying labor or material to a contractor or sub-contractor engaged in the construction of public works is secured only when a bond of the contractor is filed containing the additional obligations required by the statute that the contractor or contractors shall promptly make payment to all persons supplying him or them labor and material in the prosecution of the work provided for in such contract.</p> <p>4. A bond filed by a contractor who had assumed a contract for the construction of public works, which does not contain such obligation, but does contain a condition that he will carry out all the terms of the contract, and such contract contains a clause that the contractor will pay all just claims for materials and supplies that might be incurred by him in the performance of the work, is not such a bond as is required by the statute to protect third persons from whom the contractor or sub-contractor may obtain materials or labor, and no right of action is secured to such persons against the contractor and his sureties thereby.</p>

<p>1. “When the record in a criminal case shows fully the crime for which the prisoner was indicted and all the proceedings thereon, through trial and verdict up to conviction and sentence, the failure in the sentence to name the crime for which the prisoner is sentenced may be supplied by reference to the rest of the record.”</p> <p>2. The entire record may be looked to in ascertaining the offense for which an accused is sentenced, and an erroneous recital or statement of the offense by the court in pronouncing sentence, or of the clerk in recording the judgment imposed in the minutes of the proceedings kept by him, will not vitiate the judgment when the record fully discloses the offense for which the accused was indicted, tried and convicted.</p>

<p>An Appeal from an Order 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 DeSoto County; John S. Edwards, Judge.</p>

<p>1. The complainant in a suit in equity who seeks to subject a lot which is a married woman’s separate statutory property, to the payment of claims of the complainant as a material man who is alleged to have furnished such material to a contractor who erected a building upon the married woman’s ■ property must show knowledge upon the part of the married woman that the material was being furnished by the complainant and used by the contractor and that she assented to such furnishing by complainant and use of the material upon the conditions alleged.</p> <p>2. Section 2 of Article XI of the Constitution of Florida, which provides, among other things, that a married woman’s separate real or personal property may be charged in equity and sold, etc., for “labor and material used with her knowledge or assent in the construction of buildings or repairs or improvements upon the property,” etc., removes from the married woman under certain restrictions, the common law disability of coverture, and to enable her to assume obligations that can be charged in equity upon and enforced out of her separate property.</p> <p>3. Mechanics and material men’s liens provided for under Sections 2189a to 2211, Florida Compiled Laws, 1914, do not apply to the separate property of married women.</p>

<p>1. All the points' adjudicated by an appellate court upon an appeal become the law of the case and are no longer open for discussion or consideration.</p> <p>2. Where there is competent testimony to support the finding of a chancellor the decree will not be reversed on the evidence where, though conflicting, it is sufficient to support such finding.</p> <p>3. A deficiency decree in a mortgage foreclosure suit is a decree for the balance of the indebtedness after applying .the proceeds of a sale of the mortgaged property to such indebtedness.</p> <p>4. • Where, in a suit brought for the foreclosure of a mortgage, there is a cross-bill to foreclose a senior mortgage upon a portion of the same property which • cross-hill contains a prayer for a “deficiency” decree against a party defendant in said suit who is a former owner of such senior mortgage and the indebtedness secured thereby, for moneys received by such former owner in part payment of such indebtedness, but not applied thereon, which he has no right to retain, the word “deficiency” being inapt may be disregarded and a decree entered in accordance with such prayer.</p>

<p>1. Where the common law rule prevails, unmodified by statute, the weight of authority supports the holding that in an action against a principal, or master, and his agent, or servant, for damages resulting solely from the negligence of the agent, or servant, acting as such, a verdict of the jury exonerating the agent, or servant, exonerates the principal or master. They are in no sense joint tort feasors, but the basis of the liability of the principal, or master, is the well-known doctrine of respondeat superior.</p> <p>2. Under the pleadings and the evidence in the case at bar, Sections 3148 and 3149 of the General Statutes of Florida of 1906, do not change this rule.</p> <p>3. In a case brought against the Director General of Railroads, operating a railroad in the State of Florida, and a locomotive engineer, the servant of such Director General, for damages for injuries resulting to the plaintiff solely because of the negligence of such engineer in the operation of a train which is alleged to have run into the train the plaintiff was entering, no recovery can be had for other negligence than that alleged in the declaration.</p> <p>4. A plaintiff is confined to the cause of action alleged in his declaration and cannot recover for any other act, or acts, of negligence than the act, or acts, alleged, and there is no presumption of negligence against one operating a railroad other than as to the act, or acts, of negligence alleged.</p> <p>5. Where a jury by its verdict in an action for damages for injuries sustained brought against a master and his servant jointly, recovery thereof being based solely upon the negligent act of the servant, exonerates such servant, but finds the master guilty, such verdict as to such master is erroneous, and should be set aside, or judgment for the defendant master entered, notwithstanding such verdict.</p>

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

<p>A writ of error to an order of the Circuit Court within and for the County of Marion; W. S. Bullock, Judge.</p>

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

<p>A Writ of Error to the Criminal Court of Record for Dade County'; J. Emmet Wolfe, Judge.</p>

<p>Where there is competent evidence sufficient to support the verdict and no material or harmful errors of law appear, the judgment will not be reversed', because of conflicts in the evidence.</p>

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

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

<p>In a .proceeding for divorce wliere counter averments are made in the answer charging the complainant with extreme cruelty and adultery, the testimony examined and found sufficient to support the chancellor’s decree, hut not upon the ground recited in such decree.</p>

<p>An indictment for the offense of assault with intent to commit murder, which alleges that the assault was made “unlawfully and from a premeditated design to affect the 'death” of the person assaulted, sufficiently alleges the statutory “intent” to. commit the felony of murder.</p>

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

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

<p>A writ of error to the Circuit Court for Jackson County.</p>

<p>1. The granting or overruling of a motion for á hül of partiyulars made by defendant in a criminal case rests largely in the discretion of the trial court.</p> <p>2. There is no abuse of discretion in denying a motion for a bill of particulars made by defendant in a criminal case in the absence of any showing that a bill of particulars was necessary in the proper administration of justice in such case.</p> <p>3. Where a defendant in a criminal prosecution testifies as a witness in his own behalf, the State has the right on cross-examination to interrogate him as to whether he has previously been convicted of a criminal offense.</p> <p>4. It is not reversible error for the trial court to overrule objections to argument of counsel to the jury because such argument is unsound or illogical.</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 Escambia; A. G. Campbell, Judge.</p>

<p>An Appeal from the Circuit Court for Osceola County, G. 0. Andrews, Judge.</p>

<p>An Appeal from the Circuit Court for Osceola County; C. O. Andrews, Judge.</p>

<p>1. In a suit in equity to remove an alleged cloud from and quiet title to certain land where both, complainant and defendant claim title to the land in controversy from a common source, it is not incumbent upon complainant to trace his title further than to such common source of title.</p> <p>2. In proceedings to remove a cloud from and quiet title to certain land the complainant must show with clearness, accuracy and certainty the validity of his own title and the invalidity of the title of the opposing party.</p> <p>3. Where there is such an insufficiency of testimony as to preclude making a just decree, and the points are covered by the pleadings, and are such that there can be no doubt that testimony exists as to them, the cause will be remanded with directions to take further testimony on such points.</p>

<p>X. A judgment of conviction will not be reversed even if technical errors have been committed in rulings on questions of the admissibility of evidence or in charges given or refused or in other matters of procedure where the evidence of guilt is clear and no fundamental rights of the defendant have been violated.</p> <p>2. Chapter 7263, Acts of 1917, Laws of Florida, and prior statutes of a similar character have in several cases been assumed by this court to be valid and enforceable and a sufficient basis for a criminal prosecution against persons alleged to have violated the provisions of such statutes.</p> <p>3. Even if it should be held that the rule obtains in this State which permits the question of the constitutionality of a statute upon which a criminal prosecution is based to be raised for the first time in the appellate court, it is not so clearly made to appear that the statute which is the basis of the prosecution in this case is in contravention of any designated provision of the Constitution as to warrant a holding that the statute is invalid.</p>

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

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

<p>A writ of error to the Circuit Court for Walton County.</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 an order of the Circuit Court within and for the County of Manatee; F. M. Bobles, Judge.</p>

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

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

<p>A Writ of Error to the Circuit Court for Osceola County; C. 0. Andrews, Judge.</p>

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

<p>A Writ of Error to a Judgment of the Circuit Court within and for 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 Pinellas; O. K. Reaves, 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>A Writ of Error to a Judgment of the Circuit Court within and for the County of DeSot'o; John S. Edwards. 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>A writ of error to tlie Circuit Court for Hillsborough County; F. M. Robles, Judge.</p>

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

An Appeal from the Circuit Court for Palm Beach County; E. B. Donnell, Judge. STATEMENT.

<p>1. Plaintiff having been employed by defendant for a stated period, before its expiration, received a communication from him as follows: “As I promised Harry’s wife X would give him the management of the store on his return before I employed you can you take the night shift and arrange to trade nights with him occasionally. ' As you know the position we are placed in with old employees I have no other choice than to ask this of you.” Plaintiff interpreted this communication as a discharge and thereupon quit the service of defendant and sued for the amount of salary which he would have been entitled to had he rendered the service for the period of his employment. Held, that the language employed in the communication is not reasonably susceptible of the interpretation given it by plaintiff and that he is not entitled to a recovery upon the theory that it amounts to a discharge.</p> <p>2. Where a verdict in plaintiff’s favor is unsupported by the evidence it is the duty of the trial court to set it aside upon motion, and a failure to do so is error, for which the judgment will be reversed.</p>

<p>1. Where a real estate broker agrees to accept $300.00 as payment in full if be consummates tbe sale of tbe property only for $30,000.00 cash, be is not entitled to a commission on tbe transaction, if tbe property is subsequently sold for a less price.</p> <p>2. Tbe contract of a real iestate broker to negotiate and bring about a sale at a fixed price is not performed if tbe property is subsequently sold at a less price.</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>1. A deed conveying land to a named grantee, and deposited ■with a third person, to he hy him delivered to the grantee upon the performance by the grantee of stated conditions of purchase, is an escrow.</p> <p>2. After the deposit of an instrument with the escrow holder, the grantor has no control over it, unless the grantee defaults in complying with the conditions of the escrow.</p> <p>3. An escrow holder is in effect a trustee of both parties charged with the performance of an express trust governed by the escrow agreement, which agreement is not required to he in writing, there being a deposit of the escrow paper.</p> <p>4. When a grantee named in a deed of conveyance has complied with all the conditions of an escrow agreement, he is entitled to have the escrow instrument delivered to him; and upon refusal of the escrow holder to so deliver he may be compelled to do so.</p> <p>5. Where third parties contracted for land with knowledge of an escrow transaction, covering the land, their claims may be cancelled in appropriate proceedings.</p>

<p>1. Where the terms' of a written contract are in any respect uncertain or doubtful and the parties thereto have by their conduct placed a. construction" upon the contract which is reasonable, such construction will be adopted by the court upon the principle that it is the duty of the court to give effect to "the- intention of the 'parties ■where it' is not wholly at variance with the correct legal interpretation of the terms of the contract.</p> <p>2. The rule which gives effect to the intention of the parties to the contract may be invoked only in cases where there is doubt as to the meaning of the terms employed to express the contract. If the meaning is clear and free from ambiguity the contract - will not be changed by ■ an' erroneous construction placed upon it by the parties thereto, and an erroneous construction by them will not prevent the court from giving the true construction to the contract, the province of the court being to give effect to the "contract which the parties have made.</p> <p>3. If the language employed in a contract, is free from ambiguity effect will be given to such language, although it may result in placing a construction upon the contract under consideration different in its effect from the practical construction which may have been placed upon .it by the parties themselves.</p> <p>4. “In considering a contract of guaranty a liberal construction should be indulged to determine the intent of the parties, and when that intent is discovered the guarantor is entitled to a strict construction in the working out of the intent.” '</p> <p>5. Defendant agreed with a third party to pay drafts drawn on "' h'iih'tffiro'u'gh á‘designated b&Ük anh gave to him the'following letter evidencing" Such agreement':' “You may i'nfdiin’ the Peoples Sayings Bank of your city that I will honor your drafts drawn on me, amount not to exceed five hundred dollars, if this will be of service to you.” Held, .that the obligation assumed by defendant, was limited to the amount stated in the letter and that the language employed did not create a'continuing'guarantee by' defendant ‘ to" pay drafts not exceeding tiis"’ amount fronf1 time to timé for' an indefinite period. "• ' llt ■ ' '■ '■ ' • K "■ ,!"</p>

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

<p>1. A verdict will not be disturbed upon the ground that it is unsupported by the evidence, when the trial court after ordering a substantial remittitur concurs in the verdict so modified and there is substantial evidence to support the verdict as so modified.</p> <p>2. A contract between the -parties for the sale and purchase of the oranges growing upon the trees of several groves, under the terms of which the purchaser paid the sum of fifteen hundred dollars upon the execution of the contract, half of which sum was to be applied to the payment for the early bloom fruit, which was to be removed by him before December 25th, and half to the payment for the late bloom fruit to be removed in March, is entitled to a credit of the remaining seven hundred and fifty dollars upon a demand for pay ment for the fruit of the early bloom, which was not removed at the date agreed upon by the purchaser, and which was lost by injurious effects of a frost occurring in January.</p> <p>3. The principle upon which a remittitur is directed to be entered is: the court considers the damages as returned by the jury to be excessive.</p> <p>4. In a common law action where there has been a verdict for the plaintiff, a remittitur ordered by the trial court, but which is not deemed sufficient because of the failure of the court to allow the defendant credit for a certain sum of money held by the plaintiff for the defendant’s use, this court will, acting under Section 1707, General Statutes, direct a further sum to be remitted by the plaintiff to the defendant.</p>

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