The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1891-07-18

:l n"se Deen enormously given by circuit |
Juoge, IS not, where the motion is denied, |
evidence in the supreme cou,t that anv
such charge was given.
Inc purpose OF the act of March 10Th,
1888, (Chapter 943l) was simply to en-,
a jury.
a. A charge to jury cannot be made a
part OF the record of a cause except by a
Dill OF exceptions, or by being signed,
sealed and filed by the circuit Judge, in &C.
cnrdance with the act of March. End, 1877,
(Sec. 36, p. 339 McClellan's DigeSO.
D The practice as to excepting to
charges and making them part of the
record reviewed.
Judgment affirmed.
A. Henry, for plaintiff in error Will
liam 3. Lamar, attorney-seneral,f for de-
fendant in error.
Thomas Parrish, Appellant, vs. Pensa-
cola and Atlantic Railroad Company,
Appellee-Jackson county.
TAYLOR, j.:
MASTER AND SERVANT Liability Of
master for negligence of co-servant, ap-
pellate praoiice, amendment of pleading
1. Prior to the enactment of Chapter
3744, Laws of 1887, master was not
liable or responsible to one servant for
personal injuries received in the course
of his employment through the negligence
of fellow servant, when engaged in
common work or in the same general
undertaking
2. the engineer, fireman, brakemen
and shOvelers on gravel train engaged
in loading, hauling and unloading gravel
in repair of the road.bed are fellow SER
wants engaged in the same common work,
and the employer company, prior to the
passage of said statute, was not liable to
one of such shovelers for personal injury
received in consequence Of the negligence
of the engineer in putting the handling
of his engine in the hands of his fireman
who was either careless or unskilled in
the management of such machines.
3. 1t is not necessary that all eXcep-
tions taken and noted during the progress
of trial should be included in motion
for new trial as grounds therefor, in Or
der to have them reviewed by this court,
when they are otherwise properly dis
closed by the bill of exceptions.
| 4. The embodiment of a motion fo'
new trial into bill Of exceptions is not
evidence Of the truthfulness of any state
ment of fact set forth in such motion, but
is evidence only that such a motion in the
form presented was in fact made before
the court And W EN- such motion sets
out or quotes charge purporing to have
been given or refu ed by the court, the
pivng or refusal Of which is not evil
j. need anywhere else in the record, or in
any other manner except by the tran
scripsi.n thereof into euch motion, tPis
court cannot consider such charge for the
want of proper evidence hat it was IN
fart given or refused.
| s. Section 2, Chapter 3431, Laws OF
1883. does not change this rule, but
IMPLY enlarges the time within which
exceptions may be taken to charges act
ually given. The meaning of said act is,
that when charge actually given is en-
braced in a motion for new trial 1t shall
be taken as an exception to such charge,
whether exception was taken thereto al
h time it was gwen Or not, but 1t does
not constitute such motion evidence OF
the truthfulness of anything contained
ther in. The fact that such charge was
actually gi, en- must be evidenced other
wise than by being incorporated in sucl
motion, either by being included as par
of the bill of exceptions, or by the en-
dorsement of the Judge thereon, over hi
SIGNATURE. as being "given" or IRE
fused" as is provided in Chapter 2O96
Laws of 1877, otherwise such charge can
not be considered by this court.
G. When new cause of &C ion, or new
or ,und O. recovery, not included in de
claration in a civil acton, is develope'
ont of the testimony at the trial, tina
would necessi,ute an amendment OF tn
ldeclaration so as to include such add
tional ground and authorize recover
thereon. it is not the duty or province
the Judge presiding, under the provision
Of section 81, page 834, McClellan's D'
oest. suG sp0ntc, to make, suggrst o
. order such amendment to be made, Du
the statute contemplates and requires a.
Humiliation to be made to the court 10
snch amendmen by the party desirini
the same.
There can be no recovery upon
cause of action, however meritorlous l
m Nv he. or however satisfactorily proved
+hat ia in substance variant from tina
which is pleaded by the plaintiff.
i n r McKinnon and John w. Malone
for appellant; w. A. Blount' Tor ap
pellee.
Elijah Johnson, Appellant; vs.. The Coun
~ of WakullA, Appellee.-Wakulla coun
ty.
TAYLOR. j.: pooords evi
COUNTY CoMM1ssIoNERs-Kecoros' eV'
J lance. change of venue, limitations.
county warrant drawn by the coun
9 ~ Commissioners on it's treasurer, ana 81
'ssted with the seal of the county, Is spe
c;siity under seal, and Is not barred oy Ia
..s,nie of limitations until the lapse
e t"entv wears after it's maturity:
Q Section IA, o. 318 McChellanass. ms. Dl9es &c
tsec. q 8 Chapter 2Oee, Laws OF 1877) tha
nrovides. "Every claim against any coun
~ i in this state shall be presented TO the Doar
. ~ county commissioners within one yea
r. from The time ssid claim shall become que
"nd shall be barred ii not 30 presented,
does not apply to orders or warrants esv, oraw
nv the com mmissioners upon the counl
: :.osnrv ~ : the existence o. such orders o
warrants being evidence, per sc. tnat u, IN
claims Tor which they were gwen IN pay
: ment have been duly presented 10 anu IA; a.
dited and adjusted by such board In. I'M
IQItSN " 0IaInS AQAIOS