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Basnett v. City of Jacksonville-Opinion of Court.

State vs. Ingersoll, 17 Wis., 631. Therefore section 23 of the original act as amended was the enactment to which this act of 1877 necessarily had reference, and to this alone could this legislative action have been directed. Grier vs. The State, 22 Tex., 588. It follows, therefore, that unless the section as enacted in the last act, Chapter 3024, gives the power of general taxation such power in the city can1.ot be sustained unless it is an implied and resulting power from the general grant of corporate powers and the imposition of corporate duties. This section as amended by Chapter 3024, Laws, does nothing of an affirmative character, except that it regulates the method of valuing property for the purposes of municipal taxation and limits the rate of taxation and amount of appropriations for expenditures. It has a negative provision as to its construction, but this certainly cannot be held to be a grant of an affirmative power outside of and beyond that conferred by its own terms. The consequence, therefore, is that there is now no legislative enactment in existence granting in express terms an affirmative power to the city of Jacksonville to levy and collect taxes. Has it such implied power under the circumstances here when the Legislature leaves existing the other general powers of the corporation ?

Some of the courts hold “that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. It has indeed often been said that it must be specifically granted in terms, but all courts agree that the authority must be given either in express words or by necessary implication, and that it cannot be collected by doubtful inferences from other powers or powers relating to other subjects, nor deduced from any consideration of convenience or advantage.” 2 Dillon's Municipal Corporations, 3d Ed., 763, and cases cited.

Basnett v. City of Jacksonville-Opinion of Court.

The assessment here sought to be declared illegal embraces assessments for three classes of taxes, two on account cf bonded indebtedness incurred by the city and one on account of the general revenue.

So far as the power to levy and collect the tax for the Londed indebtedness of the city is concerned it is made the duty of the City Council, under Section 20 of Chapter 1688, Laws, which is still in force, to assess and collect such tàxes from the citizens and upon the property within the city as is necessary for the payment of the interest upon, as well as the final payment of the bonds.

As to the taxes for the general revenue, however, the effect of the legislation is to take away both the express and implied powers granted by Chapter 2045, Laws, to the city, and these we conceive were the only powers which existed in respect to that subject-matter. We have here, therefore, an assessment to this extent not authorized by law, and taking the whole assessment into consideration we think the Judge erred in dismissing the petition, and that he should have held the assessment "not lawfully made.” The statute does not authorize the court to hold that a part of an assessment is lawful and a part illegal. The judgment covers the matter as an entirety.

Judgment reversed.

Robinson v. Barnett-Argument of Counsel.

CALVIN L. ROBINSON, APPELLANT, Vs. WILLIAM B. Bar

• NETT, APPELLEE.

1. Instructions given by the court to a jury must be construed in con

nection with the evidence given on the trial. 2. The plaintiff sued the defendant as endorser on a promissory note.

The defendant claimed that the endorsement was a forgery; that he wrote the words "protest waived" over such endorsement on the day the note matured only for the purpose of saving the trouble and expense of protest. The evidence was conflicting as to the knowledge of the plaintiff of the fact that defendant claimed the signature a forgery at the time those words were written, and that such knowledge only came to him six weeks or more after the maturity of the note, when he brought his action. The court instructed the jury that if the plaintiff was misled to his injury or loss by such act of the defendant in writing the words "protest waived" over what purported to be his signature, and was induced to sleep on his rights, and not to take measures to secure or enforce payment of the note, the defendant was es

topped: Held, That such charge was not error. 3. A waiver of protest upon a note may be made by the endorser 1100

only at the time he endorses the note, but at any time before

maturity or on the day of maturity. 4. When such waiver of protest is made after the execution of the note,

or upon the day of maturity, no new consideration is necessary

to support it. 5. Courts are not called upon to instruct juries upon a hypothesis that

does not exist in the case. They may decline to charge upon

any point of law not based upon the evidence or warranted by it. 6. It is not necessary for a court, even at the request of counsel, to re

peat propositions of law which he has already given in his charge to the jury.

Appeal from the Circuit Court for Duval county.
The facts of the case are stated in the opinion.
J. C. Marcy & Son for Appellant.

ist. The court erred in giving the following charge to the jury, asked for by the plaintiff, to-wit :

Robinson v. Barnett-Argument of Counsel.

"If the jury find from the evidence that the plaintiff was misled to his injury or loss by the act of the defendant in writing the words 'protest waived' over what purports to be his endorsement as sued on, and was induced to sleep on his rights, and not to take any active measures to enforce the payment of the note from the maker or other endorser, or even to secure it, then the defendant is estopped and the jury must find for the plaintiff.”

This was not the case made by the evidence at all. This, if it were good law, is not applicable to the case clearly inade on trial. II Fla. R., 135.

The evidence in the case shows clearly that the words "protest waived” were written on the back of the note to waive protest and for that purpose only; and the cashier knew and understood it, and that the cashier was informed that the endorsement was a forgery. Hence the president of the bank was not misled. He was bound to know what his agent knew, and is bound by what his agent knew and had agreed to.

This charge was calculated to mislead the jury, and did mislead the jury, because it proceeded upon a hypothesis that did not exist.

2d. The court erred in refusing the fourth charge asked for by the defendant as follows, to-wit:

“Admitting that the words 'protest waived' were written at the time of the maturity on the back of the note by C. L. Robinson, and that for a particular purpose, to-wit: waiving protest, no consideration having passed between them—Barnett to Robinson—such endorsement would not bind Robinson to pay the note or create any liability.”

Before maturity an endorsement of the name on the back of the note makes the endorser liable, but after maturity consideration must be shown. i Parsons on Notes and Bills, p. 581. No new consideration is shown here, even though by his act Robinson did what was equivalent to writing

Robinson v. Barnett-Argument of Counsel.

his name on the back of the note; but he did no: write the name at that time, or at any time, but simply wrote "protest waived” on the note, and it so happens that these words fall just above the forged endorsement of Robinson's rame. Suppose he did adopt the signature as an appendage, or to give an authority to the words "protest waived," the adoption could only extend to the question of protest, and not to assuming the payment of the note.

3d. The court erred in refusing the fifth charge asked for by the defendant as follows, to-wit :

"If Mr. Robinson, defendant herein, had waived protest 1!01 then knowing that the purported endorsement was a forgery, but afterwards and before payment learned that the purported endorsement was a forgery, and then refused payment, plaintiff could not recover if the facts upon trial showed that the endorsement was a forgery and never had been adopted by defendant.” Daniel on Negotiable Instruments, p. 33; Ib., p. 158; 4 Taunton, p. 93.

If defendant was discharged under such circumstances, he certainly would be if he did know and did declare the endorsement to be a forgery on presentation, and wrote the words "protest waived” on the back of the note simply for the purpose of waiving protest, and nothing more.

4th. The court erred in refusing to grant a new trial on the ground alleged by attorney of defendant, to-wit: that the verdict was contrary to the evidence in the case and the manifest weight of the evidence.

The testimony of Robinson and Moody and Norton that the endorsement of Robinson's name on the back of the note in question is a forgery stands uncontradicted.

The only question in the case is what was the effect of Robinson's writing the word "protest waived” on the back of the note in question ? Robinson says it was done in the inidst of protestations that the endorsement was a forgery.

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