davits used at nisi prius on a motion for a new trial cannot be considered by the appellate court unless they are incorporated into a bill of exceptions; and, further, that it is not to be anticipated that any whisky will reach the jury on the next trial, or that the jury will use the Revised Statutes, or any. other law books. Johnson v. State, 27 Fla.

245, 9 South. 208.

3. The ground of the motion in arrest of judgment, as entered in the trial court, is that the indictment on which the defendants were tried and convicted is defective and void, in that it was found by a grand jury consisting of only twelve men, and of which the assent of only eight was required to find an indictment. In English v. State, 31 Fla. 340, 356, 12 South. 689, and Donald v. State, 31 Fla. 255, 12 South. 695, the statute of June 8, 1891, under which this indictment was found, was considered, and, in so far as it provided that a grand jury should consist of twelve members, was held to be operative and separable from the void clause as to eight members being sufficient to find an indictment. It will be observed that the motion does not go to the extent of asserting that less than twelve concurred in the finding now under consideration; yet, if it did, the fact that less than twelve concurred in the finding could, in the absence of an affirmative showing to that effect in the return of the finding, be taken advantage of only by plea in abatement. Kitrol v. State, 9 Fla. 9; Gladden v. State, 13 Fla. 623, 630; Burroughs v. State, 17 Fla. 643; Ellis v. State, 25 Fla. 702, 6 South. 768; Ex parte Warris, 28 Fla. 371, 9 South. 718; Donald v. State, 31 Fla. 255, 262, 12 South. 695, 697. It is argued before us that it was brought to the attention of the trial court, by affidavits, that one of the grand jurors was related to the deceased within the prohibited degrees, and that consequently the indictment was found by less than twelve legal grand jurors. Any such alleged defect in the grand jury was waived by not pleading it in abatement of the indictment. The authorities cited-1 Bish. Cr. Proc. 854, and Feople v. Roberts, 6 Cal. 214 -do not sustain the idea that a defect reaching so far as not to leave the legality of twelve of the grand jury unquestioned need not be taken by plea in abatement; nor can we discover any good reason for the distinction. Of course, motions in arrest of judg ment go only to defects in the record proper, and not to matters in pais presented by affidavit merely, nor to any matter whose consideration by an appellate court it is the sole office of a bill of exceptions to secure. Lovett v. State, 29 Fla. 356, 11 South. 172; Brown v. State, 29 Fla. 543, 10 South. 736; Jordan v. State, 22 Fla. 528; McClerkin v. State, 20 Fla. 879; Sedgwick v. Dawkins, 18 Fla. 355; Hyer v. Vaughn, Id. 647.

The judgment is reversed, and a new trial granted.

MARTIN V. JOHNSON, Tax Collector. (Supreme Court of Florida. Feb. 20, 1894.) STATUTES-ENACTMENT-TITLE TO ACT.

The failure of the commissioners to include in the revision of the statutes submitted by them to the legislature of 1891 certain provisions of statutory law in force at the time did not affect the power of the legislature to provide, in the statute of that year entitled "An act to enact the Revised Statutes, and to provide for the printing, sale and distribution thereof," that such omitted provision should be added to the draft of such revision, and be a part thereof, nor did it render the title of the act insufficient as an expression of the subject of the act, including such omitted provisions. (Syllabus by the Court.)

Error to circuit court, Duval county; R. M. Call, Judge.

Action in mandamus by John H. Martin to compel J. E. Johnson, tax collector, to issue to plaintiff a retail liquor license. There was judgment for defendant, and plaintiff brings error. Affirmed.

Walker & L'Engle, for plaintiff in error. Cooper & Cooper, for defendant in error.

RANEY, C. J. This is a proceeding in mandamus, conducted not in conformity to the proper procedure in such cases, in which Martin seeks to compel the defendant in error, the tax collector of Duval county, to deliver to him a license as a retail liquor dealer in election district 19 of Duval county; he having tendered the amount of money, $750. payable to the state and county for a state and county license. The sole ground of the refusal of the tax collector to comply with the demand is that Martin has not complied with sections 865-868, inclusive, of the Revised Statutes. These sections provide, in effect, that such a license shall not be issued to any person, without his having obtained a permit to sell, from the board of county commissioners of the county where the business is to be done, which permit is to be issued at a regular meeting of the board, and upon an application signed by a majority of the registered voters of the election district in which the business is to be conducted, which application has to be published for a period and in a manner prescribed by such sections. It is not denied that Martin has never complied with the requirements of these sections, but the contention is that the sections themselves, owing to the manner of their enactment, are of no legal effect. They, with section 869 of the same revision, were enacted as a part of section 7 of the statute approved June 8, 1891, and entitled: "An act to enact the Revised Statutes of the State of Florida, and to provide for the printing, sale and distribution thereof." In the year 1883 a statute containing provisions of substantially the same import as the stated sections was adopted, and it remained in force at the time of the enactment of the mentioned statute of June 8, 1891. The com

mission of revisers, in the exercise of the discretion given them by the act of 1889, to recommend the repeal of existing statutory law, had made such recommendation as to the provisions of the act of 1883, by, at least, not including them in the revision, as it was submitted by them to the legislature of 1891; but the legislature, not agreeing with the revisers as to the advisability of repealing the regulations referred to, enacted the matter of the named sections of the revision. The language of section 7 of the act of 1891, preceding the provisions now under consideration, is that the following sections shall be added to the draft or revision submitted by said commissioners, and shall be deemed and taken as part of the revision and the law of the state, as provided in section 1; and section 1, referred to, ordains that the accompanying general revision of the public statutes of Florida, revised and reported by the commissioners under an act entitled "An act to provide for the revision and consolidation of the public statutes of this state," be, with the omissions, alterations, and additions from, of, and to the same, set forth in sections 5, 6, and 7, and the same is hereby enacted as statute law, under the title of the "Revised Statutes of the State of Flor da." The objection urged as fatal to the sections of the revision involved here is based on the provision of the constitution that each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title. Section 16, art. 3, of the constitution. It is not contended that the organic law cited is offended in any way by any of these provisions of the revision which were recommended by the commissioners, but it is urged that, as the sections now under consideration were not so recommended, they could not be enacted except by separate statute conforming to the stated constitutional provision. The proposition, considering the facts of the case, is nothing more or less than that these provisions could not be retained, either in their original or a modified form as a part of our statutory law, and incorporated in the Revised Statutes, without the consent of the revisers, manifested by their having included them in the revision submitted to the legislature. In Mathis v. State, 31 Fla. 291, 12 South. 681, where the legality of the enactment of the Revised Statutes is fully considered, it is distinctly held that no power was attempted to be given, or could have been given, to the commissioners, to make or repeal any existing law, and that the essential requirements of the constitution as to there being a bill with an enacting clause, and a title embracing but one subject and matter properly connected therewith, were sufficiently complied with in the passage of the above act of 1891, adopting the Revised Statutes. Of course, it was never intended that the title of an act

revising our statute law, as contemplated by the constitution, (section 17, art. 3,) should contain an expression of each subject to which the laws, as revised, related, nor is it so contended; and it is beyond question that the duties of the commissioners, and their exercise of the same, were in no way a limitation upon the lawmaking power. The legislature had the same authority to retain, with or without revisory additions or corrections, what the commissioners did not recommend, as it had to reject what they rec ommended. The title of the act adopting the Revised Statutes, as has been held in the case cited, is sufficient for any such statute. and to cover any matter included therein, whether approved or disapproved by the commissioners. The case made by the plaintiff in error, particularly in view of the decision cited, is altogether without merit. The judgment is affirmed.

1. A letter from an owner of live stock to a railroad company. notifying it of the killing of his stock by a train, giving also the time and place of the killing, and expressing a desire to be informed, as early as possible, what the company will pay him for the stock, is not inadmissible as evidence of notice and claim for damages under the statute making railroad companies that fail to erect and maintain fences sufficient to turn and exclude all live stock from their railroads, with stock guards at certain crossings, on account of the omission of the letter to state the amount of the damage claimed; nor is a letter stating the amount claimed inadmissible because it was not written at the time of the killing, nor until 75 days after, or because it offers to take less than the owner believes he was entitled to. The two letters held to constitute ample notice and presentation of claim under the statute.

2. Where an instruction is not calculated to mislead the jury, although not as full or specific as it might be, and no request has been made for a fuller instruction, no advantage can be taken by the losing party on account of such deficiency.

3. It cannot be assumed, as a matter of law, that the general attorney of a railroad company is not a proper officer or agent to notify and present a claim to for damages to live stock under the railroad fence law, where the company has neither attempted to show that he was not such, nor made any objection to proof of demand upon him. on the ground that he was not such officer or agent.

4. The railroad fence statute requires notice of claim to be given "to any general agent or officer of such corporation or person, or to any station, depot, or other agent or officer acting for said corporation in the county where the live stock was killed or injured." Held, that the words subsequent to the word "officer." where it appears the second time, do not qualify any of the preceding words except those after the word "person."

5. The general requirement of the railroad fence statute, wherever the act is operative, is the erection and maintenance, on both sides

stock is so killed or injured, the person entitled to damages therefor shall give notice and present his claim therefor to any general agent or officer of such corporation, or to any station, depot, or other agent or officer acting for the corporation, in the county where the live stock was killed, such notice or presentment of claim to be in writing; and if, after such notice, the corporation shall fail to pay the claim for the space of 30 days, suit can be brought on the claim; and if, as presented, it was reasonable and just, the jury or judge shall assess, as damages against the corporation, the actual damage to the live stock so killed or injured, and 50 per cent. interest per annum on such damage from the day of the presentment of the claim, together with all reasonable attorney's fees. It also enacts that if the corporation shall deem the claim presented to be unreasonable and unjust, and shall tender or offer to pay all reasonable or just damages for the stock so killed or injured, and the claimant shall re fuse to accept the amount tendered or offered to be paid, and, upon the trial, the jury or judge, under the proofs, shall find a verdict for not more than the amount tendered or offered, the court or judge shall render judgment against the plaintiff for all reasonable costs, and such costs shall be deducted from the amount assessed as damage to the live stock; and the plaintiff shall be entitled to no attorney's fees. Acts 1887, pp. 114, 115; Rev. St. §§ 2271, 2272, 2275-2277.

The other facts are stated in the opinion.

J. R. Parrott and T. M. Day, Jr., for appellant. B. M. Miller, for appellee.

RANEY, C. J. The testimony shows that the horses of the plaintiff were killed near a wood rack about a half mile from his home, and a mile and a half from the town of Seville, and were found there by the plaintiff and the section boss and his hands and others, early in the morning of June 28, 1888, lying on the side of the railroad, and that, as indicated by their tracks, they had walked through a gap in the railroad fence, and onto the railroad. The gap was used for hauling in wood for the locomotives by two men named Stephens, who are spoken of by one witness as owning the rack. There was another rack in the same locality, owned by another person, but on the opposite side of the gap.

There was no railroad crossing at the gap. The plaintiff testifies that the gap was open when the horses were found, and he saw no bars or poles. One witness testified that he had seen bars or poles, about the size of his arm, up at the gap, but did not recollect that any were up when he and plaintiff found the horses on the named day. Another witness says they were down, and that he had seen the gap the evening before, between sunset and dark, and they were down then; he having met the Stephenses oming home just before he got to the gap.

The foreman of the section of the road where the horses were killed testified that it was a part of his duty to see that the road and fences were in proper condition, and that he found the horses on the morning stated, and that the bars were opened on the side that the Stephens rack was; that there were three bars provided for the gap, reaching from 3 to 4 feet from the ground; he had found the bars down before this, not knowing who left them down, and had got his men to put them up; that he had warned persons to put them up; thinks he went by the day before the accident at 12 o'clock, and the Stephens boys were in sight with a load of wood for the rack, and the bars were down, but he did not warn them to put them up, yet had done so before; that the woodrack men hauling wood for the company were supposed to put up and take down the bars; that he had notified the company that it was a dangerous place, notifying the road master, who "saw that they were kept up," and who went down there and got after these men about it; that witness did not shut the bars every night, as, if he had, he could not have done much of anything else; yet that he had them put up when he found them down, and would have done so on the day preceding the accident if he had not seen the cart coming with the load of wood. A section hand stated that he had put up the bars under the section master's direction; that he saw the bars down on the day, and under the circumstances, stated by the section master, and he never knew them to be left open by the section master; and that the bars were not quite three feet high. The testimony as to the ownership and value of the horses need not be stated.

The first assignment of error is as to the admission in evidence of two letters offered by the plaintiff. One of them is dated July 4, 1888, and is from the plaintiff, the substance of it being that the fast mail train going south on the morning of June 28th killed two horses of the writer near the 86mile post, and that he was desirous of knowing what the company would pay him for them; that the killing had been reported by the section master,-and requesting to be communicated with as early as possible relative to the matter, and to let him know what the company would do in the case. Here it should be stated that the plaintiff, in testifying as to the killing of the horses and his finding them, said that he gave notice to the railroad company,-sent a letter to Gen. Mason, and that they wrote back, and offered him eight dollars for the horses. The other letter bears date September 11, 1888, and is from B. M. Miller, Seville, Fla., to J. R. Parrott, attorney for defendant company. It states that Harris has retained him to prosecute his claim against the company for the two horses killed on June 28, 1888, and that, if the company was willing to settle the matter without suit, the plaintiff would take $200

in full satisfaction of his claim, and, if it would not, the writer was instructed to bring suit at once; and asks for the company's decision at once. The admission of the second letter was objected to on the ground that it was an offer of compromise, and not a notice, but the ground of the objection to the former letter is not given. The objections were overruled, and the defendant excepted. Waiving, for the purposes of this case, the deficiency of the objection to the letter from Harris, we, in view of the letter from Miller, fail to see in the objection urged here good ground for excluding the letter from Harris. Such objection is that the letter does not set any sum as the amount of the damage, or present his claim. True, it does not state the amount of the claim; yet it presents a claim, and fully discloses the basis of it, and the deficiency as to the amount is fully cured by Miller's letter. The objection to Miller's letter, that it was not written at the time of the killing, is not good, the statute not making this an essential; and the other one, that it is an offer of compromise. is palpably without merit, even if we admit it is an offer to take less than the plaintiff believed himself to be entitled to. The two letters, considered together, constitute an ample notice and presentation of claims under the statute. Whether, in the absence of Miller's letter, the testimony of the plaintiff that, when he gave notice to the railroad company, it wrote back and offered him eight dollars for the horses, would not supply the alleged deficiency of the plaintiff's letter, need not be considered.

The conclusion announced above disposes, also, of one of the charges requested by the defendant.

The second assignment of error is as to a charge in which the judge used, among others, the expression: "If you find that the plaintiff, after the killing of the horses, gave notice of such killing, as required by law, and made presentment of his claim in writing for such killing." The objection urged is that, as there was a question in the case whether or not the notice and claim had been presented to any one of the officers specified in the statute, the jury should have been instructed what the law was, in order that they might pass understandingly on that point. Under the facts of the case, we do not see that the instruction was calculated to mislead the jury. If defendant desired any further instruction, they should have asked for it. It cannot be assumed, as a matter of law, that the general attorney of the company (which Mr. Parrott is testified by one of the witnesses to have been) was not a general agent or officer of the company, within the meaning of the act, or that Gen. Mason (to whom, it must be concluded, the letter from the plaintiff was written) was not a proper officer or agent, within the meaning of the act, to give notice to. Railroad Co. v. Truitt, 24 Ind. 162. In the ab

sence of any attempt upon the part of the company to show that Parrott was not an officer or agent of the company for the purposes of notice and demand under the act, the jury were justified in concluding that he was such an officer or agent. The conduct of the company in the premises is at least a tacit admission that he was; the notice to Mason was recognized by the company, in its offer of eight dollars, as having been given to a proper representative, and no objection to proof of demand upon Parrott was made on the ground that he was not a proper representative of the company.

Another charge requested by the defendant, and properly refused, may be disposed of by saying of the provision of the statute requiring notice of claim to be given "to any general agent or officer of such corporation, or person, or to any station, depot or other agent or officer acting for said corporation in the county where said live stock was killed or injured," that the words subsequent to the word "officer," where it appears the second time, do not qualify any of the preceding words, except those after the word "person."

An instruction requested by the defendant, and the refusal of which is made the basis of an assignment of error, is: "If you find that the cause of the presence of the plaintiff's horses on the defendant's railroad track was the negligence of persons not the agents or servants of the defendant, in leaving down the bars provided by the defendant to close an opening in the fence, and that the defendant, its agents and servants, were not guilty of negligence in failing to replace the bars, you will find for the defendant." A disposal of this point requires some observations upon the nature of the statute. The general requirement of the act is the erection and maintenance, by corporations and persons operating railroads in our state, of substantial fences on both sides of the railroads, and the fences must be sufficient to exclude or turn all live stock from the roads, at least, such stock as are orderly or not shown to be breachy. This requirement is not applicable in cities or towns unless they make it so. There is a limitation upon the general requirement, even outside of cities and towns, which is that, in lieu of fences, stock guards shall be erected and maintained at public crossings, and at such other crossings as may be necessary for the use of owners or tenants of land adjoining a railroad. In case of a failure, upon the part of a railroad company, to erect and maintain a fence of the character indicated wherever the statute so requires, the company is made liable for all damage by its engines or cars to any live stock, caused by a failure to erect or maintain such a fence. If a failure upon the part of the company to erect or to maintain the fence or stock guard, as the case may be, at a place where the statute contemplates that one or the other