to be a very plain case of palpable injustice | tion, dismissed the case, and discharged the before this court will in any way interfere defendant. with the action of the chancery court. The removal of this trustee was not under section 2035 of the Code of 1906; that is to say, it was not at the instance solely of any interested person, charging improper conduct and asking for the removal. If it had been, then five days' notice would have been necessary, as required by above section. The removal was under section 2123 of the Code, and by the court itself, and because of willful neglect on the part of the trustee to obey the court's own orders.

The sole question in this case is whether or not the city of Laurel, being a city of over 7,000 inhabitants, has the power to select a police justice pro tem. by its mayor and board of aldermen. The rights of the city of Laurel are controlled in this particular by section 3398 of the Code of 1906; this section being the one which applies to all cities of over 7,000 inhabitants, and the city of Laurel is in this class. Such being the case, the city of Laurel is utterly without any power to elect a police justice pro tem., either through

This case is destitute of merit, and the ap- its mayor and board of aldermen or in any peal is affirmed.

MAYES, J. The city of Laurel appealed this case. It seems to be conceded by all parties that the city of Laurel has more than 7,000 inhabitants, and its charter is under the general municipal law of the state. The mayor and board of aldermen of the city of Laurel passed an ordinance providing for the election of a police justice pro tem. by the mayor and board of aldermen, and after passing the ordinance proceeded to elect one B. F. Carter to fill the place. Afterwards an affidavit was made against one W. D. Turner, charging him with a violation of a city ordinance. We do not deem it necessary to set out the charge, since no question grows out of it alone. A trial was had before the police justice pro tem., resulting in a conviction of Turner, who prosecuted an appeal to the circuit court of the county. When the cause reached there, the defendant made a motion to dismiss the case, because the trial and conviction was before a police justice pro tem., elected by the mayor and board of aldermen of the city of Laurel without any power so to do. The court sustained the mo

other way, since no such authority is given
by the statute. The rights of municipalities
are controlled by their charter powers, and
what is not in the charter cannot be placed
there by municipal action. Municipalities
are dependencies, not sovereignties.

The action of the court was correct.
So ordered.

An affidavit in a prosecution brought in the mayor's court, charging defendant with the unlawful sale of liquors in the county, was fatally defective, as failing to state that the crime was committed within the city limits.

[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 207.*]

Appeal from Circuit Court, Jackson County; W. H. Hardy, Judge.

Alex McAlister was convicted of violating Reversed, the liquor laws, and he appeals. and appellant discharged.

J. H. Mize, for appellant. Denny & Denny. for appellee.

SMITH, J. Appellant, having been convicted in the mayor's court on a charge of unlawful retailing, appealed to the circuit court, and, being again convicted, appeals to this court.

The affidavit upon which he was tried is in the following language: "Before me, the undersigned authority, Geo. W. O'Neill, mayor of the city of Moss Point, comes R. D. McLeod, sheriff of Jackson county, who makes oath that Alex McAlister, on the 12th day

Ethridge & Ethridge and Bourdeaux & VenaWHITFIELD, C. J. The case should have ble, for appellant. Geo. Butler, Asst. Atty. gone to the jury. Reversed and remanded.

(58 Fla. 480)

NOBLES V. L'ENGLE et al. (Supreme Court of Florida. Dec. 21, 1909. Rehearing Denied Feb. 22, 1910.)

(Syllabus by the Court.)

1. SPECIFIC PERFORMANCE (§ 105*)-LACHESWHAT CONSTITUTES.

Where only 2 years have elapsed since a complainant in a bill for specific performance was wrongfully ousted from the possession of the premises in controversy, and there has been no material change in the status of the property, or in its value, or of the parties interested, and where the contract of purchase has over 60 years to run, there is no such laches as would debar the complainant from specific perform

ance.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 325-341; Dec. Dig. 8 105.*]

him, of the conditions of said agreement, and the payment at any time within said period of 99 years aforesaid of the sum of $300, he, or they, would execute and deliver to your orator, or those holding through him, a good title in fee to the land described in said agreement.

"(2) That your orator, in pursuance of said agreement, made the initial payment of $5 as aforesaid, and thereupon took possession of the land embraced in said agreement as above described; that thereafter and until about, to wit, June 3, A. D. 1894, he paid all and every the sums due for rent and a portion of the principal sum of $300 aforesaid; that on or about, to wit, June 3, A. D. 1894, he paid the remaining sum due upon said principal sum of $300 to the said Francis F.

2. EQUITY (§ 339*)-ANSWER-WEIGHT AS EV-L'Engle, who then and there received from

IDENCE.

[Ed. Note.-For other cases, see Equity, Cent. Dig. 695; Dec. Dig. § 339.*]

In Banc. Appeal from Circuit Court, Duval County; R. M. Call, Judge.

your orator said sum as the payment in full of the purchase money provided for in said agreement, who then and there promised to execute and deliver to your orator, in accordance with said written agreement, a good title in fee for the land described therein; and your orator thereupon delivered up to him, the said Francis F. L'Engle, said written agreement, the surrender of which was the predicate for the making of such deed as

Bill by January Nobles against Charlotte J. L'Engle and others. Decree for defendants, and complainant appeals. Reversed aforesaid; and the said written agreement and remanded, with directions.

Cockrell & Cockrell and J. W. Archibald, for appellant. Geo. U. Walker & Son (D. A. Simmons, on petition for rehearing), for appellees.

was so surrendered for no other purpose than as a predicate for the consummated deed there and then to be executed in the completion of the contract as provided therein.

"(3) That said Francis F. L'Engle was a TAYLOR, J. The appellant, as complain-resident of the county aforesaid at the time ant below, filed his bill in equity in the circuit court of Duval county on the 23d day of June, 1905, against the appellees, as defendants below, for specific performance of two contracts for the conveyance of two lots located in the city of Jacksonville, and for an accounting. The said bill, omitting its formal parts, alleges as follows:

of his death, and had been for a long time prior thereto; that said Francis F. L'Engle died in said county and state in the month of August, 1899; that up to the time of his death, and for a long time prior thereto, said Francis F. L'Engle was an attorney at law in said city, and engaged in the practice of his profession; that your orator is an ex"(1) That said Francis F. L'Engle, being slave, of little education and without capacthen and there seised and possessed of the ity to enter and keep accounts, and made no lands therein described, executed under his effort to do so, but relied entirely upon said hand and seal to your orator, in the presence Francis F. L'Engle with regard to all busiof witnesses thereunto subscribing their ness dealings had with him; that your oranames as such, a certain agreement in writ-tor is advised and believes, and upon such ing, on or about, to wit, the 1st day of Feb- advice and belief avers, that said Francis ruary, A. D. 1884, by the terms of which agreement said Francis F. L'Engle leased to your orator that certain tract or parcel of land in the county of Duval and state of Florida described, to wit, as fractional lot 5 "(4) That notwithstanding the surrender in block 198, La Villa, a subdivision of Jack-of said agreement as aforesaid, and said sonville, for the period of 99 years, upon con- promise of Francis F. L'Engle, neither he sideration, to wit, of an initial payment of during his lifetime, nor his legal representa$5 and the payment thereafter four times in tive since his death, has executed or deliveach year of the sum of $5; it being further ered to your orator a deed for said land; that covenanted in said agreement by said Fran- your orator is informed and advised, and so cis F. L'Engle, for himself and his legal rep- believes, that said written agreement and resentatives, that upon the faithful perform- books of account severally are in the possesance by your orator, or those holding through sion or control of said defendants to this

F. L'Engle kept full and complete accounts of all transactions between your orator and himself in a book or books kept by him for that purpose.

bill, or one of them; that your orator is en- | January, A. D. 1903, said Claude L'Engle, titled to a discovery of said agreement and the said accounts.

"(5) That about 10 years prior to the death of said Francis F. L'Engle your orator erected upon said premises three frame houses, which he thereafter rented; that your orator, from the date of said written agreement up to and until about, to wit, January 1, A. D. 1903, was in the peaceable, quiet, and exclusive possession of said land embraced in said agreement, and in the exclusive pernancy and perception of the income, rents, and profits thereof; that after the surrender of said written agreement, and until said January 1, A. D. 1903, your orator exercised as the absolute equitable owner full control thereover.

"(6) That said Francis F. L'Engle, being then and there seised and possessed of the lands therein described, executed under his hand and seal to the person therein named as grantee, in the presence of witnesses thereunto subscribing their names as such, a certain agreement in writing on the 29th day of January, A. D. 1896, which instrument was thereafter duly proven for record and recorded in the office of the clerk of the circuit court for the county aforesaid, a copy of which agreement is hereto annexed, marked 'Exhibit A,' and prayed to be made a part hereof, the original of which agreement will be produced at the hearing hereof.

"(7) That said agreement was for a valuable consideration assigned to your orator by Annie K. Smith, the grantee therein, on or about, to wit, April 29, A. D. 1896; that said Francis F. L'Engle recognized said agreement, and accepted during his lifetime from your orator as such assignee the rents accruing thereon.

claiming to act as trustee under said will for one Frank Fatio L'Engle, unlawfully dispossessed and wrongfully ousted your orator from the possession of the land embraced in each of the two agreements aforesaid.

"(11) That your orator, so wrongfully ousted from possession of the lands so granted to him in the lease of about, to wit, February 1, A. D. 1884, before about, to wit, the 3d day of June, A. D. 1894, performed all and every the conditions on his part agreed to be performed in accordance with said written agreement of about, to wit, February 1, A. D. 1884, and has since been, since the completion of said final payment of the principal sum of $300 and the surrender of said agreement upon about, to wit, June 3, A. D. 1894, entitled to a deed in fee for the said land; that at the time he was so dispossessed the houses upon said premises were rented, and the aggregate rental received therefrom amounted to about, to wit, $24 per month; that said Claude L'Engle, so claiming as trustee for Frank Fatio L'Engle under said will of Francis F. L'Engle, deceased, has since that time collected a large sum from such rentals, which your orator is advised and believes, and, so believing, avers said sum, to be about, to wit, $700; and your orator avers that said Claude L'Engle, so claiming as trustee aforesaid, should be required to account for and pay to your orator all such sums received by him.

"(12) That your orator had, before being so unlawfully evicted therefrom, erected valuable improvements upon said land embraced in said agreement of January 29, A. D. 1896; that said Claude L'Engle, claiming as trustee for Frank Fatio L'Engle under said devise to him as such trustee under said will, "(8) That your orator has, since the date has since said wrongful dispossession of of said assignment and up to and until about, your orator of said premises been continuto wit, the 1st day of January, A. D. 1903, ously receiving as such month by month the been in the quiet, peaceable, and exclusive rents, income, and profits thereof, which as possession of said land described in said your orator is advised and believes, and so written agreement so assigned, and in the states the fact to be, has amounted to a exclusive pernancy and perception of the in- large sum of money, the exact amount of come, rents, and profits thereof; that your which is to your orator unknown, but which orator, up to and until about, to wit, said upon information and belief he states to be 1st day of January, A. D. 1903, has perform- quite sufficient to pay off and discharge, not ed all and every the conditions, covenants, only the rent month by month provided for and stipulations of said agreement so assign-in said agreement, but also to pay off and ed to him, and by such assignment, so rec- discharge in full the purchase money for ognized by said Francis F. L'Engle, agreed to be performed up to and until that time; that during said time your orator has not only paid the sums due as rent upon said property, but has paid a large portion of the principal sum of $500, to wit, about $150.

said premises, and upon the payment of which your orator was to receive by the terms of said agreement a deed in fee to said premises, and in respect of which receipts, whether by the said F. F. L'Engle in his lifetime, or by his representatives under his will "(9) That said Francis F. L'Engle duly ex- since he died, your orator is entitled to a ecuted his will, which was after his death full accounting; that said defendants to this duly admitted to probate, a copy of which bill, though often requested by your orator, is annexed to this bill, marked 'Exhibit B,' have heretofore and do now refuse to perand made part hereof, for the purpose of form the terms of said agreement; that if showing what was devised therein and the any part of said principal or rental sum or relation of the parties to said devisees. sums shall be found upon an accounting had

any condition or conditions yet unperformed, and dismissing the bill at complainant's cost. which by the terms of said agreement is or This decree the complainant below brings are to be performed by your orator, he stands here for review by appeal. ready and willing and now offers, as he has heretofore been ready and willing and has offered, to pay said sum or sums and to perform said condition or conditions.

"To the end, therefore, that said several defendants be made parties defendant hereto, and answer, your orator prays as follows: "(1) That said defendants discover to this court the agreement of about, to wit, February 1, A. D. 1884, aforesaid, and all and every book or memorandum or books or memorandums in the possession or control of them, or either of them, bearing upon or in any wise relating to the two agreements aforesaid.

We think the court below erred in rendering the decree made. In so far as the question of laches is concerned, we do not think, under the circumstances in proof, that the complainant should be shut off from the relief he seeks thereby. According to the provisions of one of the contracts sought to be enforced, made some time during the year 1884 or 1885, the vendor therein bound himself to make title at any time within 99 years from its date upon compliance therewith by the lessee and vendee, and in the second contract, also sought to be enforced, the time for compliance runs for 69 years from January 29, 1896. The proofs further "(2) That said defendant Charlotte J. L'En- show that the complainant was in the uningle, as executrix of the will of Francis F.terrupted possession of all of said premises L'Engle, deceased, be decreed to execute and until the year 1903, only about 2 years bedeliver to your orator a good and sufficient fore the exhibition of his bill, and that durdeed in fee simple to said parcels of landing that time he sought to regain possession and each thereof.

"(3) That said Claude L'Engle, individually and as trustee for Frank Fatio L'Engle, be required to account for all sums received by him as incomes, rents, and profits of said land described in said agreements, and that a full accounting be had of all sums paid in pursuance of said agreements during the lifetime of said Francis F. L'Engle and thereafter.

"(4) That if, upon an accounting had, it appears that a balance is due your orator after payment of the rentals and principal sum of the agreement dated January 29, A. D. 1896, said balance be decreed unto your orator.

"(5) That your orator may have such other and further, or other or further, relief as the nature of this case requires."

To this bill the defendants demurred on the ground of the want of equity, and because of laches apparent upon the face of the bill.

This demurrer was overruled, and the defendants jointly answered, in which the making and delivery of the agreements sought to be specifically performed are admitted as alleged, but the answer denies that said agreements have been complied with by the complainant as alleged in the bill; and on the part of the defendant Claude L'Engle said answer denies that he took wrongful possession of the premises involved from the complainant, and alleges that the complainant, finding himself unable to pay what he owed on said lots, voluntarily surrendered them to him, and voluntarily went with him and notified all the tenants on the premises to attorn to him, the said L'Engle.

by actions of forcible entry and detainer. During that time of delay the proof does not show that there has been any material change either in the property or in its value, or in the status of the title or of the parties interested. We think, further, that the decided preponderance of the proofs shows that the complainant has fully complied with his contract for the purchase of fractional lot 5 of block 198 in La Villa, a subdivision of the city of Jacksonville, and that he is entitled to a deed thereto from the defendant executrix of Francis F. L'Engle, deceased, as prayed in the bill, and that as to the second lot, described as the north third of the west half of lot 4, in said block 198, in said La Villa, the proofs show that, even if he has not paid the full amount of the agreed purchase price, he has paid the major part thereof, and will be entitled to a deed therefor upon an adjustment of any balance that may be due thereon. We further think that the overwhelming preponderance of the proofs shows that the complainant was wrongfully dispossessed of all of said premises by the defendant Claude L'Engle during the year 1903; that said Claude L'Engle has since that time wrongfully collected and appropriated the rents, income, and profits of said lots, and that the complainant is entitled to an accurate accounting from him of such rents, income, and profits; and the complainant should be allowed to apply so much out of such rents collected by Claude L'Engle as may be sufficient to pay any balance due from him on his contract for the purchase of said north third of the west half of lot 4 in block 198, La Villa.

The bill alleges that the complainant in the A master was appointed to take and report year 1903 was wrongfully dispossessed of the testimony, a large volume of which was said premises by the defendant Claude L'Entaken and reported, and at the final hearing gle. The answer of the latter denies this, the chancellor, on the bill, answer, and testimony reported, rendered a final decree find

and alleges that the complainant at that time voluntarily surrendered to him the posses