The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1892-06-25
performance of which is designed to be

Hs w uere plea, or Suuscqueu' P'S.~aS
responsive to declaration or former plead
ing, SETS up new matter in avoidance, a re-
ply must be made TO, or issue Jolned on,
such pleading; without which 1t Will De
error to submit the case to Jury Tor
trial but the mare absence Ola Srnttster 10
plea, or subsequent pleading rendering an
issue, will not cause reversal OF Juog-
ment where the parties have voluntarily
gone TO trial without insisting on IL.
3. In an action of covenant on articles
of agreement under seal involving the per
torrance OF conditions therein mentioned.
instituted in January, A. D. 1885, and
tried in November, A. D. 1887, after the
plaintiff had closed his testimony. the de-
fendant asked leave to amend his pleas by
adding plea at set-of involving indepen-
dent matters not necessary to determine
the real question in controversy IN the suit:
Held, the refusal of the court TO allow such
plea to be filed, in the absence ofany reason
or excuse for not applying earlier, was not
error.
4. In suit by contractor, on con-
tract to build house, against the owner
for failure to pay the stipulated price, II
is.error for the court TO charge thejury that,if
they tind,from the evidence that the building
does not come up to the reQuirments OF the
contract, and any deficiency in said build
ing was on account of the acts or interfer-
ence of the defendant, and such deficiency
was in consequence of such interference,
the plaintiff was not at fault,and is entitled
to recover where the declaration fails to
allege that the failure to build the house
according to the contract was caused by
the acts or interference of the defendant,
and the testimony totally fails to show any
act or interference on the part of defendant
with the building of said house under said
contract.
Judgment reversed.
A. W. Cockrell 6 Son, for appellant, T.
A. MacDonell, for appellee.
r. W. Storrs, appellant, VS.. Pensacola and
Atlantic Railroad Company, appellees
Jackson county.
MABRY, j.:
/. The conferring authority upon the
railroad commissioners Of this state by the
railroad commission act, being Chapter
3746. 10 make and fix reasonable and just
rates for the transportation OF freight and
passengers over the railroads doing busi-
ness in this state, is not prohibited oy our
constitution on the ground that it is the
GAETCtS0 Ol JuuICk0l Va lCkISldlIVV PO"Sb
which can not be delegated TO such body.
2. Where tariff of freight and passen-
ger rates has been established by the rail-
road commissioners, and a railroad COM
pany aud the commissioners differ as TO
whether such rates, considered as whole,
will prove remunerative 10 the company,
and there is room for difference of intel
ligent opinion on the subject, the cou'ts
can not interfere or substitute their judg-
ment for that of the commissioners, but
the tariffs as fixed by the commission musl,
IN 80 far as the courts are concerned. be
left to the test of experiment.
3. An allegation that the rates fixed by
the commissioners for one road are unjust
and unreasonable when compared with the
rates permitted on other lines OF railroad
in this state operating under the same con
ditions, does not overthrow the reasonable.
ness or Justice of the rate complained OF,
as rate reasonable and just in itself Tor
one road, may not be SO for another, though
they connect with each other
L. The prevention Of q multiplicity of
suits is ground of equitable jurisdiction
in q court of chancery. but this ground OF
interference can not be extended to confer
upon party remedial rights where none
OF any kind existed before. lis exercise
necessarily assumes that the complainant
in such cases has some defence. either legal
or equitable. 10 the numerous suits institu-
ted or threatened against him.
5. The effect of the repeal of the railroad
commission law on the. rights of the parties
to this suit not considered.
Decree reversed.
Liddon & Carter. for appellant; w. A.
Blount, for appellee.
Daniel T. Patton, appellant, vs.. Msrion o.
Crumpler, appellec-Orapge county.
MABRY, j.:
BILL TO REMOVE cLoUD-PossEssIoN OF
COMPLAINANT.
Where a deed or other instrument OF
writing exists, apparently valid on its face.
but in fact invalid, and which may be
vexatiously or injuriously used after the
evidence to impeAch it is lost, or which
may throw cloud over complainant's title,
and he can not, being in possession. es'ab-
lish his right by any course of pr' cee'iiug
at law, u court OF equity will afford him
reliet; but where his title is legal in lis
nature, he must be in possession before he
can invoke the aid Of n court Of equity to
remove cloud from his tile.
Decree affirmed.
John c. Jones and ]. Hugh Murphy. for
appellant; Marion O. Crumpl-r, in pro.
per-, for appellee.
Jacksonville, Tampa and Key West Rail-
way Company, appellant, vs.. Joseph
Calvin, appellee-Duval county.
MABRY, j.:
A declaration against railroad cor.
porati on, alleging that the defendant
company unsafely and negligently loaded
a certain car upon it's railroad with rail.
road iron so that the bars protected a
considerable distance over the end of said
car, and that it was negligently accepted
by defendant company for transportation
when in an unsae condition, and unfit for
the purpose Of coupling, which was
known to defendant, but Of which plain
tiff. brakeman employed on DEFENDANT q
| train to couple cars, was iguorant. and by