(58 Fla. 337) care is used. We need not now dwell on PENSACOLA ELECTRIC CO. v. ALEXAN- the availability of this defense, as it does DER et al. not appear here that even ordinary care and (Supreme Court of Florida, Division A. Nov. caution was used. The chief eyewitness for 20, 1909.) 1. CARRIERS (§ 320*)-INJURY TO PASSENGER QUESTION FOR JURY. Evidence that a passenger was injured by the sudden starting of an electric car, while alighting, with others, who were frightened by flashes of electricity, and that such flashes were caused by the carelessness or inexperience of the motorman, makes a question for the jury. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1118-1325; Dec. Dig. § 320.*] 2. CARRIERS (§ 318*)-INJURY TO PASSENGER EVIDENCE. When it is in evidence that the motorman was new at the business and may have used the brake improperly, whereby the injury was caused, the railway company has not made it appear that it used even ordinary care and caution. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1270, 1307-1314; Dec. Dig. 8 318.*] the defense, the conductor on the car, testified the motorman was a new man, and may have caused the trouble by improper use of the brake. The motorman was not a witness, and no proof was offered as to his skill, habits, or experience. The court refused to instruct the jury, as requested by the defendant, as follows: "The burden of proof is upon plaintiff to show that the cause of the accident was due to the negligence of defendant, and if you are not satisfied by a preponderance of evidence that the plaintiff's injury was the result of negligence of the defendant, or its employés, you will find for the defendant." The statute makes the fact of injury by the running of the car prima facie evidence of negligence in its operation, thus shifting the former burden of proof, and casting it upon the parAn instruction that "the burden of proof ty most likely to possess the knowledge of is upon the plaintiff to show that the cause of the real cause of the injury. It is not foundthe accident was due to the negligence of de-ed wholly, if at all, as argued by the plainfendant, and, if you are not satisfied by a pre- tiff in error, upon the idea of "res ipsa loquiponderance of evidence that the plaintiff's injury was the result of negligence of the defendant or tur," upon which the cases cited are based, its employés, you will find for the defendant," is and to have given the charge would have properly refused, when the plaintiff was injur- been to ignore the statute and numerous deed by the operation of an electric car. cisions of this court construing it. See Seaboard Air Line Ry. Co. v. Smith, 53 Fla. 375, text 388, 43 South. 235, and cases there cited. 3. CARRIERS (§ 321*)—INJURY TO PASSENGERBURDEN OF PROOF-INSTRUCTION. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1334; Dec. Dig. § 321.*} (Syllabus by the Court.) Error to Circuit Court, Escambia County; J. E. Wolfe, Judge. Action by John H. Alexander and another against the Pensacola Electric Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Blount, Blount & Carter, for plaintiff in error. Jones & Pasco, for defendants in er ror. COCKRELL, J. This is an action for personal injuries, occasioned by the alleged negligence of the Pensacola Electric Company in the operation of its street car. There was evidence from which the jury could find that Mrs. Alexander, a passenger, was injured by the negligence of the employés of the company in starting suddenly the car while many passengers were in the act of alighting therefrom, being frightened by flashes of electricity, and, further, that these flashes were unnecessarily caused by the carelessness or inexperience of the motorman. These acts were sufficient to make a case for the jury on the question of negligence, and therefore the affirmative instruction to find the defendant not guilty was properly refused. The various counts in the declaration sufficiently apprised the defendant of the manner of the accident to prevent a charge of variance between allegation and proof. The judgment is affirmed. WHITFIELD, C. J., and SHACKLEFORD, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. (58 Fla. 477) MOCK et al. v. THOMPSON. (Supreme Court of Florida. Division A. Nov. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before an examiner or master, and seeing and hearing the witnesses, are not entitled the chancellor is not afforded the opportunity of to the same weight as the verdict of a jury, and are not so conclusive, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] 2. APPEAL AND ERROR (§ 1009*) — REVIEW DECREE IN EQUITY. It is argued that no negligence was shown, in that the present knowledge of electricity in favor of the correctness of the ruling of the In equity, as at law, every presumption is cannot prevent absolutely these flashes and trial judge, and a decree based largely or soleburning of fuses, even when the greatestly upon questions of fact will not be reversed, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes unless the evidence clearly shows that it was erroneous. refuse to disturb his findings. See Lucas v. Wade, 43 Fla. 419, 31 South. 231. We see [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. dertaking to set forth a synopsis of the no useful purpose to be accomplished by un 1009.*] (Syllabus by the Court.) Appeal from Circuit Court, Washington County; J. E. Wolfe, Judge. Bill by Green B. Thompson against H. H. Mock and others. Decree for complainant, and defendants appeal. Affirmed. pleading or the testimony. WHITFIELD, C. J., and COCKRELL, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., Liddon & Carter, for appellants. W. B. concur in the opinion. Farley, for appellee. (58 Fla. 335) OWENS ▼. WILSON et al. (Supreme Court of Florida, Division A. Nov. 23, 1909.) 1. APPEAL AND ERROR ( 867*) — REVIEW — GRANT OF NEW TRIAL. Upon writ of error to an order granting new trial, the only questions to be considered are those involved in such order. INGS. [Ed. Note.-For other cases, see New Trial, Dec. Dig. § 2.*] 3. LANDLORD AND TENANT (§ 265*)-DISTRESS PROCEEDINGS-CESSATION OF RELATION. The cessation of the relationship of landlord and tenant does not destroy the statutory remedy by distress as to rent theretofore accrued. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 1063; Dec. Dig. § 265.*] (Syllabus by the Court.) Error to Circuit Court, Hernando County; William S. Bullock, Judge. SHACKLEFORD, J. The appellee, as complainant, filed his bill in equity against the appellants, as defendants, in which he sought the cancellation of two certain deeds of conveyance, purporting to have been executed by the complainant to Mrs. L. E. Mock, one of the appellants, as well as the cancellation of a certain deed of conveyance from Mrs. L. E. Mock and her husband, H. [Ed. Note.-For other cases, see Appeal and H. Mock, to Ira A. Hutchinson, their code-Error, Cent. Dig. 88 3476-3486; Dec. Dig. i 867.*] fendant, an injunction, and general relief. A joint answer was filed by H. H. Mock and 2 NEW TRIAL (§ 2*) - DISTRESS PROCEEDL. E. Mock, and a separate answer by Ira New trials may be granted in distress proA. Hutchinson, denying practically all the ceedings. material allegations in the bill. The two Mocks also filed a cross-bill, to which the complainant filed an answer, general replications were filed, and an order was made appointing a special master to take the testimony of the respective parties. Temporary injunctions or restraining orders were issued, both against the defendants and the complainant. Voluminous testimony was taken before such special master, and the cause came on for final hearing upon the pleadings and such testimony, at which hearing a final decree was rendered to the effect that all the equities were with the complainant, that he was entitled to the relief pray-ministrator. ed, and that the defendants were not entitled to the relief sought by their cross-bill. The temporary injunction against the complainant was dissolved, and the temporary injunction against the defendants was made perpetual. The specific relief prayed by the complainant was granted, and the costs ordered taxed against the defendants. Four errors are assigned, all of which are based upon and question the correctness of the inal decree. The pleadings are quite lengthy, and, as we have already said, the testimony taken is voluminous. We have carefully read the transcript of the record, as well as the briefs of the respective counsel, and are of the opinion that no error has been made to appear to us. Practically no questions of law are presented to us. There is considerable conflict in the testimony; but the court below found in favor of the complainant, and, we think, was amply warranted by the testimony in so doing. Following the established practice in this court, we must Action by Chancey S. Wilson and William A. Fulton against Samuel L. Owens, adVerdict for defendant. From an order granting a new trial, he brings error. Affirmed. Davant & Davant, for plaintiff in error. F. B. Coogler, for defendants in error. COCKRELL, J. This is a writ of error addressed to the grant of a new trial upon verdict for the defendant in a distress proceeding. Upon such a writ, unlike one directed to a final judgment, the only questions to be considered are those involved in the order granting the new trial. Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 South. 1. It is insisted that distress proceedings are entirely regulated by statute, and as the statute provides for appeals, and is silent as to motions for new trials, such procedure is forbidden by implication. There may be authority for this position in some Code states; but we see no occasion for adopting such construction here. Our statute pro vides merely the manner and time within which such motions are to be made, and does not prescribe or limit the class of actions where permitted. It is a wholesome and ancient method of correcting promptly and inexpensively errors that may creep into the rulings of the court or findings of the jury, and the silence of the statute does not inhibit its use. A plea was interposed to the distress affidavit, which serves the office of a declaration, to the effect that the relation of landlord and tenant did not exist when the proceedings were commenced. Issue was joined upon this plea, and was submitted to the jury, upon evidence in its support. We think this plea tendered an immaterial issue, thus calling for a new trial. Jones v. Shomaker, 41 Fla. 232, 26 South. 191. While at the common law it would seem that with the expiration of the landlord's title the right to distress ceased, yet in many respects writs of distress have been modified by statute, and in this respect the right has been enlarged. The statute (Gen. St. 1906, § 2240) gives the writ to "any person to whom any rent or money for advances may be due." Again, a lien is given to "every person to whom rent may be due upon all property of the defendant." St. 1906, § 2237. The question is whether the relation of landlord and tenant existed at the time the right of action accrued, not at the time the action began. It has been held under similar statutes, in Georgia and Gen. Texas, that the cessation of the relationship did not destroy the right to the writ. Tyner v. Slappey, 74 Ga. 364; Meyer, Weis & Co. v. Oliver, 61 Tex. 584. It follows that the order be affirmed. WHITFIELD, C. J., and SHACKLEFORD, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. (58 Fla. 113) TILLMAN v. STATE. No error is made to appear in overruling a motion to quash certain counts in an information, based upon section 3476 of the General Statutes of 1906, charging the defendant with the crime of bribery of a judicial officer, when such information substantially complied with the requirements of such statute. Such information is not fatally defective when it distinctly alleges that the defendant offered the bribe to the judge of a designated court for the purpose of and in order to influence him "to modify and reduce the sentence" imposed upon a certain named defendant on a prior day of the same term of court, because it does not affirmatively allege that the prosecution against such convicted defendant was still pending in such court at the time such bribe was offered. Dig. 885-8; Dec. Dig. § 6.*] [Ed. Note.-For other cases, see Bribery, Cent. 3. CRIMINAL LAW (§ 951*)—NEW TRIAL-TIME TO MOVE. FECTS-MATERIALITY. It is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements. [Ed. Note. For other cases, see Indictment and Information, Dec. Dig. § 55.*] 6. CRIMINAL LAW (§ 1178*)—APPEAL-WAIVER OF ERRor. It is not sufficient merely to repeat an assignment of error and submit that error was committed by the trial court. Unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel must call the attention of the appellate court to the specific points upon which he relies to show error, otherwise such assignment will be treated as abandoned. (Supreme Court of Florida, Division A. Nov. [Ed. Note.-For other cases, see Criminal Law, (Syllabus by the Court.) Error to Criminal Court of Record, Duval County; J. S. Maxwell, Judge. G. H. Tillman was convicted of bribery, and he brings error. Affirmed. Assuming that the defendant in a prosecution against him for crime could by appropriate action in the trial court in the way of pleas, objections, or otherwise have raised the question as to the authority and jurisdiction of the judge of the criminal court of record for another county to preside over the court in the trial of such case, where such judge is acting under an order of the Governor, based upon section 3871 of the General Statutes of 1906, where no objections to the authority or jurisdiction of such judge were made in the trial court, and no action of any kind taken by the defendant toward raising such question, he will be deemed to have SHACKLEFORD, J. An information, baswaived by his silence any such privilege or righted upon section 3476 of the General Statutes J. N. Stripling and T. W. Butler, for plaintiff in error. Park Trammell, Atty. Gen., for the State. "Second Assignment of Error. The honorable John S. Maxwell, judge of the criminal court of record of Duval county, Florida, was without jurisdiction to preside in said cause." of 1906 of Florida, was filed against the plain- | was disqualified from presiding at the trial tiff in error, upon which he was tried, con- of said cause. victed, and sentenced to confinement at hard labor in the state prison for a term of four years. A review of this judgment and sentence is sought here by writ of error. The information contained three counts, but only the last two are before us for consideration; the first having been quashed on motion of the defendant. In substance, the crime charged against the defendant was that during a term of the criminal court of record for Suwanee county, at which one Margarete Stanley had been tried and convicted of the unlawful sale of liquors, the defendant, "then and there well knowing the official capacity of him the said H. E. Carter, and with the purpose and intent of fraudulently influencing the act, opinion, decision, and judgment of the said H. E. Carter, a judicial officer, and then and there the judge of said criminal court of record, on a certain matter and question, to wit, the matter and question of modifying and reducing the sentence theretofore imposed upon the said Margarete Stanley as aforesaid, and with the intent to fraudulently induce the said H. E. Carter in his official capacity as judge of said court to reconsider and modify and reduce the sentence and judgment theretofore imposed upon the said Margarete Stanley as aforesaid, he, the said G. H. Tillman, did then and there, on the said 16th day of February, 1909, aforesaid, corruptly offer to the said H. E. Carter as judge of said court as aforesaid, a gift and gratuity, to wit, a bank check of the value of $10, which said bank check was and is in the words and figures following, to wit: "No Live Oak, Fla. 2/16 1909. ""The Citizens' Bank of Live Oak. "Pay to the order of $10.00 Ten & 00/100 Cash Dollars. Even if we assume that the defendant could by appropriate action in the trial court in the way of pleas, objections, or otherwise have raised the question as to the authority and jurisdiction of Judge Maxwell to preside over the court in the trial of such cause, no such action was taken. Consequently we are not called upon to decide that question. See Coyle v. Commonwealth, 104 Pa. 117; Walcott v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, and authorities therein cited; State v. Lewis, 107 N. C. 967, 12 S. E. 457, 13 S. E. 247, 11 L. R. A. 105; Orme v. Commonwealth, 21 Ky. Law Rep. 1412, 55 S. W. 195; Butler v. Phillips, 38 Colo. 378, 88 Pac. 480, 12 Am. & Eng. Ann. Cas. 204. The decided weight of authority is to the effect that, where no objection to the authority or jurisdiction of the judge is made in the trial court and no action of any kind taken by the defendant toward raising such question, he will be deemed to have waived such privilege or right by his silence, and will not be permitted to raise such question for the first time in the appellate court. See State v. Holmes, 12 Wash. 169, 40 Pac. 735, 41 Pac. 887; State v. Anone, 2 Nott & McC. (S. C.) 27; State v. Lowe, 21 W. Va. 782, 45 Am. Rep. 570; Schlungger v. State, 113 Ind. 295, 15 N. E. 269; People v. Mellon, 40 Cal. 648; State v. Gilmore, 110 Mo. 1, 19 S. W. 218; Roberts v. State, 126 Ala. 74, 28 South. 741, 30 South. 554; Slone v. Slone, 2 Metc. (Ky.) 339; Ripley v. Mutual Home & Savings Ass'n, 154 Ind. 155, 56 N. E. 89; Crawford v. Lawrence, 154 Ind. 288, 56 N. E. 673; Hunter v. Ferguson, 13 Kan. 462; Missouri Pac. Ry. Co. v. Preston, 63 Kan. 819, 66 Pac. 1050; Perry "G. H. Tillman, Baker.' -"contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Flor-v. Pernet, 165 Ind. 67, 74 N. E. 609, 6 Am. ida." The honorable H. E. Carter, judge of such court, filed with the clerk a suggestion of his disqualification in such cause under section 3871 of the General Statutes of Florida, reciting therein that he was a witness in such cause on behalf of the state. The clerk notified the Governor, in accordance with the provisions of such statute, who issued an order assigning the honorable John S. Maxwell, judge of the criminal court of record for Duval county, to try such cause. All of such proceedings affirmatively appear in the transcript. The first two assignments are as follows: "First Assignment of Error. It does not appear from the suggestion of disqualification filed by Hon. H. E. Carter, judge of the criminal court of record of Suwanee coun & Eng. Ann. Cas. 533. Also see 23 Cyc. 616-618, and authorities cited in notes, and 11 Ency. of Pl. & Pr. 793. We see no occasion for any extended discussion of the matter or pointing out the distinctions which exist in the cited cases. We have no intention of committing ourselves to all that is said therein, but they will be found to throw light upon the point under consideration. We would also refer to Finley v. Chamberlin, 46 Fla. 581, 35 South. 1, for a discussion of the distinction between a direct and collateral attack and a review of the earlier Florida cases upon the subject. These two assignments, which are the principal ones relied upon, need not longer detain us. It is sufficient to say that they have not been sustained. The third assignment is based upon the overruling of the motion to quash the infor As we have repeatedly held, it is not and submit that error was committed by the trial court. Unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel must call the attention of the court to the specific points upon which he relies to show error, otherwise the court will feel warranted in treating such assignment as abandoned. See Hoodless v. Jernigan, 46 Fla, 213, 35 South. 656, and authorities there cited, and Phoenix Insurance Co. v. Bryan (decided here at the It follows that the judgment must be affirmed. It is earnestly contended that such counts | ed. are fatally defective because it does not sufficient merely to repeat the error assigned, affirmatively appear therein that the prosecution against Margarete Stanley was still pending in such court at the time of the alleged commission of the crime charged herein. It is urged that, inasmuch as it is alleged therein that sentence had already been pronounced upon such defendant, this constituted a final judgment, and divested the trial judge of any further jurisdiction therein. This contention is not borne out by the information, and is untenable for several reasons. The statute under which the defend-present term) 50 South. 576. We have examant was informed against is very compre- ined the bill of exceptions with reference to hensive and sweeping in its scope, as an in- this assignment, and are clear that no error spection thereof will disclose. It is also dis- was committed in overruling the grounds of tinctly alleged in the information that the objection urged. What we have said in disdefendant offered the alleged bribe to the posing of this assignment applies with about judge of such court for the purpose of and equal force to the sixth, seventh, tenth, in order to induce him "to modify and re- twelfth, and fourteenth assignments, the onduce the sentence" theretofore imposed upon ly other assignments even mentioned in the such defendant. The authorities cited by the brief; the other assignments being tacitly defendant are not in point, and do not sus- abandoned. We do not feel called upon to tain his contention. This court has decided discuss these assignments, nor do we see any that the right of a defendant to make a mo- useful purpose to be accomplished in so dotion for a new trial within the time provid-ing. Suffice it to say that we have examined ed by law is not forfeited by the fact that them all and no reversible error is made to sentence had been passed upon the defend- appear to us. ant prior to his making such motion. Massey v. State, 50 Fla. 109, 39 South. 790. So, too, during the same term of court at which the sentence is imposed, before the defendant has begun serving such sentence, the trial Judge has the power to modify such sentence. In this case it does not affirmatively appear that such defendant had begun serving her sentence. If the defendant in the instant case conceived that the information did not sufficiently apprise him of the crime with ROBERTSON v. SILVER SPRINGS & W. which he was charged, he should have moved the court for a bill of particulars. See Mathis v. State, 45 Fla. 46, 34 South. 287. It is the declared policy of the Legislature as well as of this court to uphold indictments and informations whenever there has been a substantial compliance with the statutory requirements therein. See sections 3961 and 3962 of the General Statutes of 1906 of Florida; Barber v. State, 52 Fla. 5, 42 South. 86; Douglass v. State, 53 Fla. 27, 43 South. 424; Lewis v. State, 55 Fla. 54, 45 South. 998. We have given the two counts of the information a careful reading, and are of the opinion that they are not "so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offence." This assignment must fail. WHITFIELD, C. J., and COCKRELL, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. R. CO. (58 Fla. 512) (Supreme Court of Florida, Division A. Nov. In a case of disputed possession of land, where, upon a consideration of the evidence, it does not appear that the finding of the master, approved by the chancellor, is erroneous, a decree dismissing the bill of complaint without prejudice will be affirmed, when no errors of law appear. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4015, 4016; Dec. Dig. 8 1022.*] (Syllabus by the Court.) Appeal from Circuit Court, Marion County; W. S. Bullock, Judge. Bill by John D. Robertson against the Silver Springs & Western Railroad Company. Decree for defendant, and complainant appeals. Affirmed. Davis & Martin, for appellant. H. M. Hampton, for appellee. The fourth assignment is based upon the admitting in evidence, over the objections of the defendant, an envelope and check. This assignment can hardly be said to be argued WHITFIELD, C. J. The appellant, as before us and might be treated as abandon-complainant, filed a bill in equity in the cir |