ignation of the referee, but directed him to proceed "to speedily dispose of this cause, and, if not done, to show cause before this court on or before the 1st day of April, 1909, why he does not do so." On the same day the referee "declined to longer act as such referee." On the 30th day of April, 1909, the plaintiff filed his præcipe: "The clerk of the circuit court of Marion county will please place upon the docket for trial at the spring term, 1909, of the circuit court for Marion county, the case of John D. Robertson v. Thomas Wilson." On the 4th day of May, 1909, during the term of the said court, upon the peremptory call of the docket, this case being reached, the plaintiff announced ready for trial. The defendant made a motion to dismiss said cause for want of prosecution, the motion was granted, and the cause dismissed. On the 29th day of May, 1909, during the term of the court, the plaintiff moved the court to set aside and vacate the order dismissing this cause, but the court overruled the motion. We think the court erred in dismissing this cause on the 4th of May, 1909. At the very first term of court after, it seems, the plaintiff had succeeded in restoring the case to the docket of the circuit court and announced ready for trial, the same was dismissed. It is little to be wondered that the court and all the parties should have become weary of the long delay; but we do not think, under the circumstances, the responsibility therefor should be visited upon the plaintiff. The judgment is reversed. WHITFIELD, C. J., and SHACKLEFORD and COCKRELL, JJ., concur. TAYLOR, J., absent on account of illness. HOCKER, J., takes no part (59 Fla. 161) BLUTHENTHAL et al. v. STONE BROS. (Supreme Court of Florida. March 4, 1910. Headnotes Filed April 11, 1910.) (Syllabus by the Court.) OF 1. FRAUDULENT CONVEYANCES (§ 57*)—SUBSEQUENT FINANCIAL DIFFICULTIES GRANTOR. Where the evidence fails to show contemporaneous financial embarrassment of the grantor, a conveyance will not be held fraudulent because of subsequent financial difficulty caused by a fire. ¡Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 138-158; Dec. Dig. § 57.*] 2. TRIAL (§ 326*)-VERDICT-SUFFICIENCY. A verdict reading: "We, the jurors, find a verdict in favor of the defendant. W. H. Dekie, Foar," is sufficient basis for a judgment. [Ed. Note. For other cases, see Trial, Cent. Dig. § 768; Dec. Dig. § 326.*] COCKRELL, J. This is an action in ejectment, in which there was verdict and judgment for the defendants. The plaintiffs claim title under a sheriff's deed, executed in April, 1906, upon a judgment of the county court recorded in the circuit court in January, 1904, the judgment being against P. Sheffield upon attachment instituted in November, 1903; while the defendants claim under a deed from the said Sheffield to his son, recorded in Jackson county in March, 1903. The evidence signally fails to show that the senior Sheffield was financially embarrassed at the time of the deed to his son; but the embarrassment, if any of moment, was occasioned later by a fire that destroyed his liquor business, wholly disassociated from the valuable plantation here involved. Such being the evidence, we need not scan with overnicety the numerous charges given and refused. There was no evidence upon which a verdict for the plaintiff was warranted, and none of the excluded evidence had reference to transactions anterior to the deed, or which could bind the grantee therein or his suc cessors. The verdict of the jury, "We, the jurors, find a verdict in favor of the defendant. W. H. Dekle, Foar-," while informal, leaves no doubt of its meaning, and was sufficient basis for the judgment entered. Judgment affirmed. All concur, except TAYLOR, J., absent on account of illness. (59 Fla. 302) JOHNSON v. ATLANTIC COAST LINE R. CO. (Supreme Court of Florida. March 4, 1910. Headnotes Filed April 11, 1910.) (Syllabus by the Court.) 1. RAILROADS (§ 344*)-CROSSING ACCIDENTS -ACTIONS-SUFFICIENCY OF DECLARATION. A declaration for negligent injuries, averring that the railroad company unreasonably dethe principal street of a village, and that the tained a freight train with its rear car across plaintiff was proceeding cautiously and prudenty, to pass around said car when the train, without warning, suddenly, swiftly, and violently started backwards upon her, is not ill because of failure to aver that the defendant's agents actually saw her in time to prevent the accident. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1107-1110; Dec. Dig. § 344.*] 2. RAILROADS (§ 326*)-INJURY TO PERSONS ON TRACKS-TRESPASSERS. One finding the highway blocked an unreasonable time by a train of cars is not a tres passer upon the railroad's property in passing | with the exigencies of the occasion and deprudently around the end of the train. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1037-1042; Dec. Dig. § 326.*] manded by the relationship that it bears for the time being to the party in question." Morris v. Florida, Cent. & P. R. Co., supra. In Banc. Error to Circuit Court, Pasco The declaration does not disclose that the County; J. B. Wall, Judge. railroad company was exercising that ordiAction by Mary E. Johnson against the At-nary and reasonable care due to the plainlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings erReversed, with directions. ror. H. S. Hampton and Dayton & Dayton, for plaintiff in error. Sparkman & Carter, for defendant in error. COCKRELL, J. The declaration, in an action for personal injuries, to which demurrer was sustained, and judgment final for the defendant was entered, consisted of two counts. In the first count the plaintiff avers that near the station in the town of Blanton she tiff. We get little or no aid from the cases cited from other jurisdictions. They are not exactly on the point. Some hold that it is negligent to attempt to pass over cars or couplings, though there is conflict as to this; and in the Georgia case, Andrews v. Central Railroad & Banking Co., 86 Ga. 192, 12 S. E. 213, 10 L. R. A. 58, Bleckley, C. J., speaking for the court, suggests that it was the plaintiff's duty to go around the car, as was attempted here. We think the point practically controlled by the Foxworth and Morris Cases, and the judgment is reversed, with directions to overrule the demurrer. All concur, except TAYLOR, J., absent on account of illness. (59 Fla. 459) CITY OF GAINESVILLE v. JOHNSON et al. (Supreme Court of Florida. March 4, 1910. Headnotes Filed April 11, 1910.) was passing along the frequented highway which crossed defendant's track, and found a car or caboose attached to a train which was negligently permitted to obstruct the highway, and that while cautiously and prudently proceeding around the rear of the car the defendant, without warning, caused the car to be suddenly, swiftly, and violently started backward, striking her and causing injuries. The second count avers a necessity to cross the track, and that the highway was blocked for an unreasonable length of time. From a ruling upon an offer to amend the declaration, it appears that the trial court proceeded upon the theory that the plaintiff was a trespasser and that the company owed no duty to her, except to abstain from will-taining the decree, that the defendant acted ful injury; in other words, that it was not negligent, unless its servants actually saw her in time to prevent the injury. This court has never accepted the doctrine as to trespassers; on the contrary, it was seriously questioned in Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. 541. But have we here the case of a trespasser? (Syllabus by the Court.) 1. JUDGMENT (§ 138*)-OPENING TO LET IN DEFENSE-GROUNDS. To open up a final decree, after 20 days, in order to let in a defense, it must be shown there was deceit, surprise, or irregularity in obbona fide and with reasonable diligence, that he has a meritorious defense, and that strong and unavoidable circumstances exist excusing the failure to answer at the proper time, and the proposed answer should be exhibited at the time of making the application. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 249; Dec. Dig. § 138.*] 2. JUDGMENT (§ 143*)-OPENING TO LET IN DEFENSE-GROUNDS. A final decree absolute will not be opened iterate and did not understand that a suit was upon a showing that the defendant was ilbrought against him, that he had a counterclaim of which he advised complainant's counsel, and was told to see an officer of the complainant, who promised to see what could be done and advise him; there being no suggestion that the suit would be stayed until settlement. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 269-291; Dec. Dig. § 143.*] Appeal from Circuit Court, Alachua Connty; J. T. Willis, Judge. It was undoubtedly the common-law rule that a traveler, finding a highway impassable, was permitted to enter upon the abutting land in order to continue his journey, without becoming a trespasser, and we can discover no difference in favor of an abutting owner who by positive act effectively obstructs the highway. The plaintiff does not appear to have gone upon defendant's land more than the necessity demanded, and at most was but a few feet from the public right of way. Even though the plaintiff may have been guilty of some contributory negligence, she is not deprived of her right of action. Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 South. 338, 79 Am. St. Rep. 149. And with the statutory presumption of negligence from injury we cannot say as matter of law that the declaration shows that the COCKRELL, J. This is an appeal from an company exercised "all ordinary and reason-order setting aside decrees pro confesso, and able care and diligence strictly commensurate final decree consequent thereon, upon a peti Suit by Primus Johnson and others against the City of Gainesville. Decree for plaintiffs, and defendant appeals. Reversed. Hampton & Hampton and W. S. Broome, for appellant. tion made more than 20 days after the ren- [ scendants of the slave-owner class, but they dition thereof. do not come up to the rule so frequently enunciated. We are not favored with a brief or argument in behalf of the appellees, and the petition does not point out wherein the final decree was not proper or consequent upon the bill as confessed, and without aid we have discovered no such defects, jurisdictional or fundamental, as to enable us to say the bill is wholly wanting in equity. We have recognized the power in the chancellor to vacate final decrees that have become absolute, but it may be done only under extraordinary circumstances. It must be shown that there was deceit, surprise, or irregularity in obtaining the decree, that the defendant acted bona fide and with reasonable diligence, that he has a meritorious defense, and that strong and unavoidable circumstances exist, excusing the failure to answer at the proper time, and the proposed answer should be exhibited at the time of making the application. Macfarlane v. Dorsey, 49 Fla. 341, 38 South. 512; Friedman v. Rehm, 43 Fla. 330, 31 South. 234; Stribling v. Hart, 20 Fla. 235. Beside defensive matters sought to be set up in the petition, and which might have been set up if timely pleaded, and these solemn decrees are not to be set aside merely to let in a meritorious defense, the whole force of the application rests upon the first paragraph, which reads: The counterclaim of these negroes was not, strictly speaking, a defense to the suit, but was the subject-matter for an independent action, and the decree here is no bar to such future action. There was no promise or undertaking by the attorney for the city that the suit would be stayed until a compromise of the counterclaim was effected, and the matter of the counterclaim does not appear to have been within the cognizance of the attorney. It is not asserted that Mr. Hampton claimed any power to control the pending suit, or made any reference thereto, but only that he promised to take up with the proper authorities the claim of these parties for damages to them by reason of the alleged trespass. The allegations fail to show deceit, surprise, or irregularity, in legal acceptance, and the laches is not sufficiently excused. There was further irregularity in not tendering the proposed answer. It follows that the decretal order setting aside the final decree is reversed. All concur, except TAYLOR, J., absent on account of illness. (59 Fla. 215) CAPITAL CITY BANK v. HILSON. (Supreme Court of Florida. April 4, 1910. On Rehearing, April 6, 1910.) (Syllabus by the Court.) "First. That they would show that these petitioners are each and all of them ignorant and illiterate colored people; that Primus Johnson is the oldest, and acts and has acted 1. PLEADING (§§ 34, 48*)-CONSTRUCTION OF as the agent of the other petitioners; that he did not understand that a suit had been brought against them, and that it would be necessary to have an attorney to represent their interest; that when he first got notice of the city's claim, which he has been since told (August 13, 1909) was the subpoena to appear, he went to Mr. Broome, the city attorney, and told him what he claimed the city owed him, whereupon he was told by Mr. Broome that he had better see Mr. Hampton, of the board of public works; he then saw Mr. Hampton, whom he had known a long time, whom he regarded as friendly, who told him that he would bring the matter up before the board of public works, and see what the board would do, and let him know; that he relied implicitly upon Mr. Hampton, and he has heard nothing further until his attention was called to the advertisement of the property under the decree." It appears from subsequent portions of the petition that the claim against the city arose out of an alleged trespass and condemnation of part of the land for sidewalks. DECLARATION. A declaration must show plainly and certainly all the circumstances material to the maintenance of the action, and, if there be two intendments, it will be taken most strongly against the plaintiff. [Ed. Note.-For other cases, see. Pleading, Cent. Dig. §§ 66, 105, 106; Dec. Dig. §§ 34, 48.*] CONSTRUCTION 2. CONTRACTS (§ 155*) AGAINST PARTY USING TERMS. Where the terms of a contract appear on their face to be inserted for the benefit of one of the parties, he will be considered as having language thereof; and any ambiguity in such inserted such terms and as having chosen the language is, therefore, to be construed more strongly against the party making use of such language. Cent. Dig. 8 736; Dec. Dig. § 155.*] [Ed. Note.-For other cases, see Contracts, 3. INDEMNITY (§ 9*)-CONSTRUCTION OF CON TRACT. A contract to indemnify A. from certain named obligations of the "C. P. Company and joint debts of the C. P. Company and A. and himself personally" covers prima facie only the does not, unaided, support an action for the separate indebtedness of either. [Ed. Note. For other cases, see Indemnity, Dec. Dig. § 9.*] 4. INDEMNITY ($ 9*)-CONSTRUCTION OF CON. TRACT-"AND." The facts set forth may appeal to the sympathies of a judge reared in the atmosphere of that tender consideration so generally Where, in an agreement to indemnify and shown to the illiterate negroes by the de- release B. from certain obligations described as the obligations of A. and B. "personally," "Capital City Bank (State Depositorv the word "and" will not be construed as mean- "G. W. Saxon, President. ing "or," except for strong reasons and in order to carry out the manifest intention of the "J. A. Ball, Vice President. parties. [Ed. Note.-For other cases, see Indemnity, Dec. Dig. 9.* For other definitions, see Words and Phrases, vol. 1, pp. 385-394; vol. 8, p. 7575.] In Banc. Error to Circuit Court, Leon County; J. W. Malone, Judge. Action by I. B. Hilson against the Capital City Bank. Judgment for plaintiff, and defendant brings error. Reversed. "Branch at Apalachicola, Fla. "T. E. Perkins, Cashier. "Tallahassee, Fla., May 29, 1906. "We hereby indemnify and release Mr. I. B. Hilson from the following obligations of the Capital Publishing Co. and himself personally. Towers Mfg. Co..... S. P. Richards... Neeley & Simmons, for plaintiff in error. for defendant in error. HOCKER, J. I. B. Hilson, called herein the "plaintiff," sued the Capital City Bank, a corporation, herein called the "defendant," in an action at law, in the circuit court of Leon county in November, 1907, and recovered a judgment against the latter for $4,500, with interest at 8 per cent. from May 29, 1906, which is brought here by the defendant for review on writ of error. The declaration as at first filed contained two counts. The first count is as follows: "The plaintiff sues the defendant for and in consideration of the sale and delivery by plaintiff to it of a large amount of personal property exceeding in value $11,000 agreed by an instrument in writing which is hereto attached and made a part hereof, that is, the defendant would indemnify and release the plaintiff from certain obligations of the Capital Publishing Company, a corporation, and of the plaintiff specified in said writing; that among said obligations specified was an obligation or indebtedness of the Capital Publishing Company, to a certain concern therein called 'Merganthaler Company,' for about the sum of $6,500; that before the beginning of this suit the said obligation or indebtedness amounting to $6,500 became and was due and payable to the said concern, and plaintiff requested the defendant to pay the same, but that the defendant did refuse and has continued to refuse to pay of the said indebtedness more than the sum of $2,000, leaving due and unpaid the sum of $4,500, which the plaintiff has been compelled to pay and has before the institution of this suit paid to the said concern, whereby the defendant has become and is indebted to plaintiff in the sum of $4,500." Morning News... about $ 87 00 125 00 100 00 70.00 125 00 "Capital City Bank, 425 09 6.500 00 350 00 675 00 1,500 00 176 00 "G. W. Saxon, Prest." Three pleas. were filed by the defendant, as follows: "(1) That it never was indebted as alleged. "(2) That it did not promise as alleged. "(3) That the indebtedness of $4,500, alleged in said declaration to have been paid by the plaintiff to 'Merganthaler Company, was not an obligation of the Capital Publishing Company and plaintiff personally from the payment of which the defendant agreed to indemnify and release the plaintiff.' ” The first of these pleas was stricken on motion. Issue was attempted to be joined on the second, and to the third a demurrer was interposed, which was sustained. Two other pleas were filed, one of which was stricken, and to the other a demurrer was sustained. Some other proceedings were had, and then the plaintiff amended his declaration by adding two new counts, which are just like the two first counts, except that in neither is it alleged that the plaintiff has paid the $4,500, but simply that the defendant has refused to pay or release the plaintiff from the same. Pleas were interposed to these two counts, and demurrers to them were filed by the plaintiff. These demurrers were sustained. Besides the questions of law which arise out of these rulings, several interesting questions of practice are presented, and incidentally we remark that it would seem as if section 1420, Gen. St. 1906, which seems to have been introduced into the stat The second count is like the first, exceptute law by the revisors, was not called to the that the obligation or indebtedness against which the defendant is alleged to have released and indemnified the plaintiff is that of the plaintiff instead of the Capital Publishing Company. attention of the court in dealing with a demurrer to a plea as valid some time after an issue upon said plea had been created by said section. But the fundamental question is: Has the plaintiff stated a cause of action in The agreement which is made a part of either count of his declaration? Independent both of said counts is as follows: of the fact that a demurrer to pleas reaches back to the declaration, this court will take | Rep. 774, 57 N. Y. Supp. 94, it was held that, notice of a fatal defect in the latter. Hall "under a guaranty to pay 'all bills of goods v. Northern & Southern Co., 55 Fla. 242, 46 bought by B. and M.' not to exceed a gross South. 178, and cases cited; Kirton v. At- sum, the guarantor is not liable for sales lantic Coast Line R. Co., 57 Fla. 79, 49 South. to either party individually, but only for 1024. Time and again this court has ad- joint sales." The court says in its opinion: hered to the rule laid down in Bennett v. “It is manifest that an engagement to anHerring, 1 Fla. 387, that "the declaration | swer for the obligations of debtors collecmust show plainly and certainly all circum- tively cannot be extended to their individstances material to the maintenance of the ual obligations." It is further said: "While action, for if there be two intendments it courts have construed 'and' as 'or,' and vice shall be taken most strongly against the versa, such construction has been sanctionplaintiff." See cases cited in the concurring ed only for strong reasons, and in order to opinion of Mr. Justice Shackleford in Atlan- | carry out the manifest intention of the partic Coast Line R. Co. v. Benedict Pineapple ties." See, also, Robinson v. Southern Pac. Co., 52 Fla. 165; text 174, 42 South. 529, and Co., 105 Cal. 526, text 541, 38 Pac. 94, 28 Kirton v. Atlantic Coast Line R. Co., supra. L. R. A. 773. In 2 Am. & Eng. Ency. of Reverting to the several counts of the dec- Law (2d Ed.) p. 333, title "And," it is said: laration, it will be observed that each of them "In order to effectuate the intention of the makes the agreement of the Capital City testator or Legislature the word 'and' is Bank a part of itself. It is the basis of the sometimes construed to mean 'or,' and vice suit. versa. This construction, however, is not resorted to except for strong reasons. Indeed, to say that 'or' can ever mean 'and' seems to be an inaccurate expression. It should rather be said that for strong reasons and in conformity with a clear intention 'or' has been changed or removed and 'and' substituted in its place, or vice versa." In the case of Morgan v. Thomas, L. R. 9. Q. B. Div. 643, cited in a note under the foregoing title, Jessel, M. R., says: "You will find it said in some cases that 'or' means 'and'; but 'or' never does mean 'and' unless there is a context which shows it is used for 'and' by mistake. The instance I have given is this: Suppose a testator said 'I give the black cow on which I usually ride to A. B.' And he usually rode on a It follows from the foregoing rule of construction of declarations that in its construction no intendments favorable to the plaintiff can be indulged in. It is also laid down, as a rule in the construction of contracts, that, if the terms of a contract appear on their face to be inserted for the benefit of one of the parties, he will be considered as having inserted such terms and as having chosen the language thereof. Any ambiguity in such language is, therefore, to be construed more strongly against the party making use of such language. The rule is summarized in the maxim, "Fortius contra proferentem." 2 Page on Contracts, par. 1122. The agreement made a part of each count states the undertaking of the Capital City Bank in the following words: "We hereby indemnify black horse. Of course, the horse would and release Mr. I. B. Hilson from the follow-pass. ing obligations of the Capital Publishing Co. and himself personally." The declaration counts on the copulative conjunction "and," used in the above quotation to connect the Capital Publishing Company with the word "himself," as being used in the sense of the disjunctive conjunction "or," and as being an indemnity against the separate debts of the Capital Publishing Company and I. B. Hilson. Now, there is no doubt that such a meaning may be given to the word "and" when the whole context of the instrument in which it is used indicates that such a meaning should be given it, or when the situation of the parties and the surrounding circumstances show that the parties to the agreement intended that it should be so used. Snow v. Pressey, 85 Me. 408, 27 Atl. 272; Hale v. Sweet, 40 N. Y. 97. But when such an intention is not apparent from the context of the instrument, nor from the situation of the parties and the surrounding circumstances, the ordinary meaning of a word is prima facie that employed. 2 Page on Contracts, pars. 1105. 1123, 1125; Roome v. Phillips, 24 N. Y. 463. But I do not think that any annotator of cases would put in the marginal note that 'cow' means 'horse.' You correct the wrong word used by the testator by the context; when you find it was an animal on which he daily rode, you would say he meant a horse; he would not ride a cow in this country. It is not that the word has a different meaning from that which it usually bears, but the context shows the testator has by mistake used one word for another." See, also, Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566; Douglass v. Eyre, 7 Fed. Cas. 975, No. 4,032. In the case of Kirton v. Atlantic Coast Line R. Co., supra, this court has said: "A demurrer to pleas reaches back to the declaration, and if the declaration is defective in substance the judgment of the court sustaining such demurrer must be held to be correct regardless of the sufficiency of the pleas. A declaration in an action at law should allege distinctly and clearly every fact that is essential to the plaintiff's right of action. Where the allegations of a declaration containing only one count are repugnant to and inconsistent with each other, |