(concurring). — I concur in the affirmance of this judgment but place it upon a narrower ground.
I am convinced that the court of original jurisdiction was not required to and did not in fact pass upon the sufficiency of the plea in point of law.
It is admitted here that if the affirmative charge for the defendant was properly given, the ‘refusal of the requested instructions was proper, and no other errors are argued.
This court is firmly committed to the holding that when issue has been joined upon a plea and that plea is proven, the defendant is entitled to a peremptory charge, be the plea ever so frivolous. Hood v. French, 37 Fla. 117, 19 South. Rep. 165; Clyde Steamship Co. v. Burrows, 36 Fla. 121, 18 South. Rep. 349. It is worthy of notice here that the trial judge was necessarily familiar with both of the cited opinions, having been of counsel in the latter, and as circuit judge called to this court in lieu of a disqualified justice wrote the former opinion.
On this point the cited cases are in no wise affected by the decision in Jones v. Shomaker, 41 Fla. 232, 26 South. Rep. 191, where the former decisions are reaffirmed, but it was held that the court should set aside a judgment upon an immaterial issue. It is not here complained that the court refused to set aside a judgment, but that the court gave the affirmative charge.
In view of the stand taken by this court upon the cessation of the right of election in Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435, it would not be consistent to hold that the plea tendered an immaterial issue; the plaintiff through its then attorney did not see fit to test the legal sufficiency of the plea by motion or demurrer, and for us now to enter critically into its discussion, it seems to me, trenches too *127closely upon the exercise of original jurisdiction denied to this court by the constitution.