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I 



U .B .A . 

6 



'«P^Si\ 



REPORTS 



OF 



CASES ARGUED AND ADJUDGED 



IN THE 



Supreme Court of Florida, 



AT 



TERMS HELD IN 1855. 



By MARION D. PAPY, Reporter. 



VOLUME VI. No. 1. 



TALLAHASSEE : 
'Office of the Florida Sentinel. 

PRINTED BY BEN]. F. ALLEN. 
1855. 



[Entered according to act of Congress, in the year 1855, by 
M. D. PAPY, in the Clerk's Office of the District Court of the 
United States, in and for the Northern District of Florida.] 



JUDGES OF THE SUPREME COURT 

DURING THE PERIOD OF THESE REPORTS. 



Hon. THOMAS BALTZELL, Chief Justiob. 

Hon. THOMAS DOUGLASS, ) , , 

Hon. CHARLES H. DuPONT, ^ Associate Justices. 



MARIANO D. PAPY, Attorney-General. 



JUDGES OF THE CIRCUIT COURTS. 



Hon. WILLIAM A. FORWARD, Judge Eastern Circuit. 
Hon. THOMAS F. KING, Judge Southern Circuit. 
Hon. J. WAYLES BAKER, Judge Middle Circuit. 
Hon. JESSE J. FINLEY, Judge Western Circuit. 



ERRATA. 



For ''Henry Anderson/' at page 299, read ''Henry Hen- 
derson.'* 

For "The Supreme Court has authority to entertain an 
appeal coming up directly from a Justice's Court," at page 
303, read "The Supreme Court has no authority, &c." 

Bead head-note No. 2, at page 382, as follows : "In a 
deed of gift of personal property to the separate use of the 
wife, having no words of restriction or direction as to 
alienation, the power of disposition is incident td the own- 
ership, and she may dispose of it as if she were a feme 
sole/' 

At page 328, for 'V'm" read 'V^n." 

At page 482, for "Daggett vs. Willey" read "Doggett vs. 
Willey." 

On page 304, head-notes, second line, read "the Su- 
preme Court has no authority, &c." 

Many other errors, typographical and of punctuation, 
have unavoidably crept in, but which may be detected by 
the reader without being specially pointed out here. 



Table of Cases Reported. 



Ahren & Hyer vs. WiUis, 369 

Allen VB. Hawley, 142 

Bailey vs. Clark 686 

Barbee vs. Jacksonville & Alligator Plankroad Co., 262 

Bellamy vs. Bellamy's Adm'r 62 

Bennett, Carter vs 214 

Blocker et al., Cotton vs 1 

Bobe, Maiben, Trustee, vs 381 

Branch vs. Branch 314 

Brown, Henderson vs 299 

Burrett vs. Doggett, 332 

Campbell, Gamble vs 347 

Carter vs. Bennett, 214 

Clark, Bailey vs 516 

Cotten vs. Blocker et. al., 1 

Croom vs. Noll, 62 

Darden, Lines vs 37 

Devall, (Ttoway vs 302 

Dibble vs. Jacksonville & Alligator Plankroad Co 279 

Doggett vs. Willey, 482 

Francis, a slave, vs. the State, 306 

Gallagher, Hooker vs 351 

Gamble vs. Campbell, 347 

Groner vs. the State, 39 

Hagler vs. Mercer, 342 

Halliday vs. Jacksonville & Alligator Plankroad Co., . . 303 

vs. " " « " .... 304 

Hardee & Co., vs. Langford, 13 

Hawlev, Allen vs 142 

Hayward, Wilson & Herr vs 171 

Henderson, ex parte 279 

Henderson vs. Brown, 299 

Honacker, Sullivan & Hyman vs., 372 

Hooker vs. Gallagher, 351 



VI SUPREME COURT. 



TABLE OF OASES REPORTED. 

JackBonville & Alligator Plankroad Co., Barbee vs 262 

" Dibble vs. ... 279 

« Halliday vs . . 303 

Jones et. al., Sanderson vs 430 

Kilcrease vs. White, 45 

Lacy, McMillan vs 626 

Langford, Hardee & Co. vs ^ 13 

Lines vs. Darden, 37 

Maiben, Trustee, et. al., vs. Bobe, 381 

McCormick, Yonge & Bryan vs 368 

McEinnon vs. McCoUum 376 

McMillan vs. Lacey, 526 

Mercer, Hagler vs 342 

Noll, Croom vs 52 

Otoway vs. Devall, 302 

Sanderson vs. Jones et. al., 430 

Sealev vs. Thomas et, al 25 

State, Groner vs 39 

State, Francis, a slave, vs., 306 

Sullivan & Hyman vs. Honacker, 372 

Thomas et. al., Sealey vs 25 

White, Kilcrease vs 45 

Willey, Doggett vs 482 

Willis, Ahren & Hyer vs 359 

Wilson & Herr vs. Havward 171 

Yonge & Bryan vs. McCormick, 368 

Note — The head-notes In each case were prepared by the Jndge who de- 
livered the opinion, as required by law. 



DECISIONS 



OF THE 



Supreme Court of Florida 



AT 



January Term, 1855, 



Held at Tallahassee. 



Frederick R. Cotten, Appellant, vs. Haley T. Blocker, 
AND James D. Tradewell, in his own right and as Ad- 
ministrator, &c., OF William Tradewell, Deceased, Ap- 
pellees. 

1. To constitute a trust or Equitable Mortgage, there must be a specific agree- 
ment between the parties in interest, and to be affected by it ; there must al- 
so be a valuable consideration. 

2. The case of Philips vs. Hawkins, 1 Florida, R. 362, commented on and ex- 
plained. 

S.A sale of mortgagee's interest under execution does not confer a complete title 
to property, but gives the mortgagee's rights subject to redemption by the 
mortgagor. 

4. Notice to creditors to file their claims does not sustain a bar under the 
statute. The statute should be strictly pursued and its terms complied with 

Appeal from a decree of Leon Circuit Court. 
It appears from the record that Frederick R. Cotten, 
on the second day of January^ 1844, purchased from James 



2 SUPBEME COUBT. 



Gotten 78. Blocker, and J. D., and Wm. TradewelL — Statement of Cas«. 

D.y and William Tradewell their plantation and slaves^ 
and other property in Leon County, and took from them a 
conveyance with general warranty. Three of the slaves 
purchased, viz: Alfred, Lewis and James, had been on the 
seventh day of April, 1840, mortgaged to the Southern 
Life Insurance and Trust Company, to secure the sum of 
$4200. Of this mortgage Cotten alleges that he had no 
actual knowledge at the time of the purchase aforesaid, 
and that the Tradewells represented to him that the slaves 
so purchased were entirely unencumbered. Subsequently, 
and on the third day of Jime, 1850, Cotten ascertaining 
the existence of the mortgage covering as aforesaid seve- 
ral of the slaves purchased by him, procured by purchase 
from the Southern Life Insurance and Trust Company, a 
transfer thereof, together with the bond to secure which 
it had been given. 

It also appears, that on the ninth day of January, 1844, 
a few days after the sale to Cotten, James D., and William 
Tradewell had a settlement of their affairs, including the 
sale to Cotten, by which it was agreed that William Trade- 
well was still indebted to James D. Tradewell in the sum 
of two thousand dollars, to which was to be added the sum 
of one thousand dollars that day advanced, for which two 
amounts William Tradewell executed his note payable in 
four equal annual instalments. It was further understood 
and agreed by the settlement aforesaid, that William 
Tradewell was "to release the negroes, Alfred, Lewis and 
"James, sold to Mr. F. R. Cotten, from a mortgage on 
"them held by the Southern life Insurance and Trust Com- 
"pany and is to substitute for them three of his own indi- 
"vidual negroes, to wit : Moses, Nancy and Charlotte.^' 

It also appears that William Tradewell on the seventh 
day of April, 1842, mortgaged to James D. Tradewell the 



TERM AT TALLAHASSEE, 1856 



Gotten Tt. Blocker, and J. D. and Wm. Tradewell. — Statement of Case. 

said negroes, Moses, Nancy and Charlotte, with other 
property, to secure the payment of a bond for the sum of 
twenty-two thousand dollars, which bond and mortgage 
were dulv recorded in the Clerk^s office of said Circuit 
Court. Neither the original bond nor mortgage was pro- 
duced at the hearing in the court below, but only copies 
from the records were read. 

It also appears that Haley T. Blocker obtained a judg- 
ment in Leon Circuit Court, against James D. Tradewell, 
and caused the execution which issued thereon, 
to be levied on the said slaves, Moses, Nancy and Char- 
lotte, which had been mortgaged as aforesaid by said Wil- 
liam to James D. Tradewell, and the said slaves were 
accordingly sold on the third day of February, 1851, 
the proceeds whereof remained in the hands of the 
Sheriff to abide the result of this proceeding. 

Cotten filed his bill, claiming that the agreement be- 
tween the Tradewells, of the ninth of January, 1844, by 
which William Tradewell stipulated to substitute three of 
his own negroes for three sold to Cotten covered by the 
mortgage to the Southern Life Insurance and Trust Com- 
pany, constituted a trust in his behalf, which a Court of E- 
quity should enforce — that the mortgage from William 
Tradewell to James D. Tradewell, if it ever was valid, 
was no longer in force, as the dc])t to secure which it was 
given, had long since been paid, and therefore, that Block- 
er could not levy his execution against James D. Trade- 
well as the holder of a subsisting unpaid mortgage cover- 
ing the property levied on. 

Cotten further claimed, that if it should be decreed that 
the agreement between the Tradewells aforesaid, created 
no trust or Equitable lien in his favor, then that as the hoi- 



SUPllEME COURT. 



Cotten T8. Blocker, and J. D., and Wm. Tradewell. — Opinion of Court. 

der of tlic bond and mortgage given to the Southern Life 
Insurance and Trust Company, he is a creditor of the es- 
tate of AVilliam Tradewell, and entitled to the proceeds of 
the sale of said slaves, or a pro rata share thereof. 

The Defendant, Blocker, insi.sted in his answer, that the 
mortgage executed by William Tradewell to James D. 
Tradewell, on the seventh day of April, 1842, is a subsist- 
ing mortgage, the debt to secure which it was given or a 
part thereof, being still due and unpaid; and that as the 
condition of the said mortgage had become forfeited he 
was entitled to levy his execution a<3:ainst James I). Trade- 
well on the property embraced therein. 

Blocker also insisted, that James D. Tradewell was a 
creditor of the estate of William Tradewell, and that he 
was entitled to claim in a Court of Equity, the application 
to the debt due him by James D. Tradewell, of the pro ra- 
ta share, which James D. Tradewell would be entitled to 
receive out of the estate of AVilliam Tradewell. He also 
insists, that Cotten failed to present his claim against the 
estate of AVilliam Tradewell until it was barred by the 
Statutes of this State. 

A witness was examined as to the value of the negroes, 
Alfred, Lewis and James, and also of Moses, Nancy and 
Charlotte who testified that the value of the three first nam- 
ed, at the date of the settlement between the Tradewells 
was about four lumdred dollars hiore than the value of the 
three last named. 

The court below, dismissed the Bill with costs, and Cot- 
ten appealed. 

.1/. D, Papy for Appellant. 

D, W, Gicynn and W. Call for Appellee, Blocker. 

BALTZELL, C. J., delivered the opinion of the Court. 

William Tradewell and James Tradewell on the second 



TERM AT TALLiVHASSEE, 1855. r» 



Gotten vs. Blocker, and J. D., and Wm. Tradewell. — Opinion of Court. 

day of January, 1884, sold to F. R. Gotten their plantation 
and slaves, and other property, conveying the same with 
general warranty. A portion of the slaves, consisting of 
negroes TiCwis, Alfred and James, by mortgage, bearing 
dale seven til April, 1840, had In'en conveyed to the South- 
ern Life Insurance and Trust Company, by Wm. Trade- 
well to secure payment of the sum of $4200. On the 
ninth of January, 1844, the Tradewells had a settlement of 
their affairs and agreed amongst themselves that Wm. 
Tradewell should "release these negroes from the mort- 
"gage aforesaid and substitute for them three of his own 
'*negroes, Moses, Nancy and Charlotte." This agreement 
was never executed on the part of Tradewell, nor was the 
mortgage paid, but Cotten, to save himself, bought the 
Bank mortgage and took an assignment to himself. Ne- 
groes, Moses and others were levied upon at the, instance 
of Haley T. Blocker, a judgment creditor of James Trade- 
well, and the proceeds of the execution being in the hands 
of the Sheriff, it was agreed that they should abide the re- 
sult of a suit instituted by Cotten. He accordingly filed 
his Bill, setting up the facts aforesaid, and claiming to 
have an Equitable lien, or mortgage, or trust upon this pro- 
perty, the negroes, Moses, Nancy and Charlotte, by 
virtue of the agreement between the Tradewells, made in 
his favor, or at all events, that his claim as a creditor of 
Wm. Tradewell by virtue of the assignment of the mort- 
gage aforesaid, be allowed pro rata out of the said fund. 
After a hearing of the case upon the pleadings and exhib- 
its, the court dismissed the bill, and Cotten has appealed 
to this court. 

We agree in opinion with the court below that this a- 
greement of Wm . Tradewell, cannot be regarded as a lien or 
mortgage in favor of Cotton. It is scarcely more indeed 



SUPEEME COUET. 



Gotten YB. Blocker, and J. D., and Wm. Tradewell. — Opinion of Court. 

than the expression of a design on his part to do something. 
To efifect the substitution of property in place of that mort- 
gaged, requires a new mortgage, with the forms and requi- 
sites of a new contract. In the first place, there must be 
execution on the part of the mortgagor; in the next place 
acceptance on the part of the mortgagee. In addition to this, 
a release of the property, to be taken from the mortgagee. To 
carry out the designs of the parties, Wm. Tradewell should 
have mortgaged the negroes, Moses, Nancy and Charlotte, to 
the Life Insurance and Trust Company. They should have 
released the negroes, Alfred, Lewis and James. By this 
means the substitution proposed, would have been brought 
about. But Wm. Tradewell never moved in the matter, 
for anything appearing in the record, and from the testi- 
mony of one of the witnesses, the Bank with propriety 
could not have accepted the proposition as the negroes pro- 
posed to be substituted, were not worth as much as the oth- 
ers by four hundred dollars. Undoubtedly the effect of 
treating it as a mortgage, would be to give the Bank a 
double mortgage, or to add three more negroes to its secu- 
rity without any gain on the part of the Tradewells, and 
without any approval or consent of theirs expressed to the 
Bank; in other words, witliout an agreement to that effect, 
on their part, with the Bank. These remarks are applica- 
ble to the case of Cotten, after his assignment of the Bank 
mortgage. By it he stands in no better position than the 
Bank. He has its rights and no more. 

The question arises yet, whether a trust was created by 
this agreement in favor of Cotten. It is very clear if it 
had been carried out as contemplated, it would have en- 
ured to his benefit, by releasing negroes he had bought and 
which were subject to the mortgage of the Bank. And 
certainly, if such a result can be brought about consistent- 



TERM AT TALLAHASSEE, 1855. 



Gotten T8. Blocker, and J. D., and Wm. TradewelL — Opinion of Coart. 

ly with principle, it would be greatly desirable. The diffi- 
culty lies in the complexity of the subject, as already ex- 
plained. The agreement is not with Gotten, and depended 
for its execution not upon the Tradewells, but upon a third 
party — the Bank. And it cannot otherwise be regarded 
than in connection with the Bank. It does not admit or 
declare an obligation to Gotten, such as would be the ef- 
fect of declaring a trust for him. If Tradewell had so de- 
signed, he would have agreed directly with Gotten, and 
given to him these negroes as a protection against the 
Bank mortgage, and authorized him to use them as such, 
or declared that he held them in trust to indemnify Gotten. 
But he does nothing of the kind. In a private agreement 
between himself and brother, not communicated to Gotten, 
he engages to effect the arrangement himself and using 
his own time, means and opportunity. 

There are several objections to the enforcing the agree- 
ment as a trust on the part of Gotten. 

1st. He was a stranger to the agreement. It remained 
with the author of it and was not acted upon to the time of 
his death, which is a strong circumstance against it. Hill 
on Trust., 85 ; 12 Vesey, 39 ; 2 Mallory, 267. 

There was no consideration proceeding from him. It is 
true there was a warranty in existence, but that was an 
executed agreement some nine days previous, and there 
was nothing new to call this agreement into action. The 
covenant to warranty was a past consideration. A valu- 
able consideration is requisite to put the court in motion. 
Hill on Trust., 83, Note. There was nothing distinct and 
perfect, complete and unequivocal in the agreement, but 
on the contrary a design incapable of execution, and imper- 
fect Hill on Trust., 87; 1 Mad., 176; 3 Brown Chy., 
12; 8 Sim 324, 



8 SUPREME COURT. 

Cotten vs. Blocker, and J. D., and Wm. Tradewell. — Opinion of Court. 

The following principles are given as the result of the 
authorities in application to voluntary trusts: "A clear 
declaration of trusts contained in, or accompanying the 
deed which pasFcs the legal estate, will create a perfect 
executed trust, and will be established." 

"A clear declaration or direction by a party, that the 
property shall be held in trust for the object of his surety, 
though unaccompanied by a deed or other act divesting him- 
self of the legal estate, is an executed trust and will be 
enforced." 

"If a party having the equitable interest of property, ex- 
ecute a formal instrument directing the trustee in whom tlie 
legal interest is vested, to hold in trust for a volunteer, and 
this direction is accepted and acted upon by the trustee, 
that is an executed trust." Hill on Trustees, 88 — 9. 

The party having failed to declare a trust to Cotten, or 
to create an interest in his favor, by certain and definite ex- 
pressions, it is not for the court to remedy the defect. We 
have no option left, but to declare the act as the expression 
of a design, laudable in its character, and which should 
have been carried into execution, but which is not in the 
rightful power of the court to enforce. It is proper to state 
that we have examined with proper care the authorities 
submitted to us, but do not find them to sustain the principles 
contended for. 

While Cotten then has not an equitable claim or trust, 
he is yet a creditor of Wm. Tradewell, by virtue of the as- 
signment of the Bank mortgage, and as having released 
the incumbrance on the estate purchased from the Trade- 
wells. This he is entitled to, unless indeed he is excluded, 
by not having filed his claim with the administrator of 
Tradewell . The evidence on this point is too vague and 
indefinite to sustain the objection. The advertisement is 



TEEM AT TALLAHASSEE, 1855. 



Gotten T8. Blocker, and J. D., and Wm. Tradewell. — Opinion of Court. 

not given, nor is the statute pursued in other respects, as 
in the ease of Laverty vs. Filyaw. To make the objection 
available, the statute should be strictly pursued. The bill 
then should have been retained to adjudicate these rights of 
Gotten, as a creditor of William Tradewell. 

We have now to consider the claim of Blocker. It is 
based upon a sale under execution of the interest of James 
Tradewell, as mortgagee of Wm. Tradewell, by deed dated 
tenth April, 1842, to secure payment of $22,000 in annual 
instalments of $2,750 each, payable in 1843, '45, '46, '47, 
'48, '49' and 50. Under the idea that these instalments, or 
some of them, were unpaid, the mortgagee's right was le- 
vied upon under the ruling of this court, in the case of 
Phillips vs. Hawkins, 1 Florida Eeports, 362. It has been 
erroneously supposed, that a sale of the right of a mortga- 
gee under this decision, would vest the complete title in 
the purchaser, and the misapprenhension, was led to the con- 
sideration of the decision, as neither founded in law nor 
supported by the authority of other courts. In the first 
place the ruling does not conflict in the slightest degree 
with the right of the mortgagor to redeem after the sale 
4 Howard, 101 ; 8 Johnson, 96 ; 12 Wendell, 61 ; 1 Bre- 
vard, 286; 9 Porter, 472; 7 Monroe, 384. As to the rule 
itself, the diflBculty is to find an adverse opinion on the part 
of the English or American Judges. The Supreme Court 
of the United States, in the case of Kenzie vs. Bronson, 
say: "according to the long settled rules of law and equity 
"in the United States, in all the States whose juris- 
"prudence has been modelled upon the principles of the 
"common law, the legal title to the premises in question 
"vested in the complainant, upon the failure of the mort- 



10 SUPEEME COUET. 

Gotten TS. Blocker, and J. D., and Wm. TradewelL — Opinion of Court. 

"gagor to comply with the conditions contained in the mort- 
"gage, and at law he had a right to sue for and recover 
nhe land itself/' 6 Howard, S. C, 311. 

The Supreme Court of Mississippi, say : "the mortgagee 
"of personal property, immediately on the non perform- 
"ance of the condition, is regarded as absolutely owner of 
"the property mortgaged.*' 4 Smde. & Mar. 153. 

The Supreme Court of New York say: "a mortgage is 
"an immediate sale to the mortgagee, with the privilege of 
"the mortgagor to redeem.'' 3 Cow., 174. 

To refer to the numerous adjudications in the States on 
the precise question, would swell this opinion to an unrea- 
sonable length. In addition to those cited in Phillips vs. 
Hawkins, we add the following: 1 Bailey, S. Car., 527; 
1 McCord's Chy., 489; 1 Harper, 275; 9 Porter, 474; 5 
Ala. ; 6 Shepley, 357. Commentators and writers of dis- 
tinction on the law, concur in the same opinion. Thus: "a 
mortgage of personal property is a conditional transfer or 
conveyance of the property itself, and if the condition is 
not duly performed, the whole title vests absolutely at law 
in the mortgage, exactly as it does in a mortgage of lands." 

1 Story's Eq. Jur., 372 § 1030. 
Story on Bailments; 4 Kent 138 — 9. 
Coote on Mortgages " 

2 Hilliard " 344. 

It is proper to say, we have been informed that a differ- 
ent practice prevails in the State of Georgia, and it is prob- 
able this fact has led to the general misapprehension pre- 
vailing on the Subject. If the property mortgaged, on the 
failure of the mortgagor to perform the condition by pa3ring 
the debt due by the very terms of the contract, becomes at 
law, the property of the mortgagee, what is there to ex- 



TERM AT TALLAHASSEE, 1865. 11 

Gotten Ti. Blocker, and J. D., and Wm. Tradewell. — Opinion of Coort. 

empt it from the payment of his debts by execution? The 
reference to authorities in the case of Phillips vs. Hawkins, 
shows that this is done elsewhere, in accordance with au- 
thority, and we see nothing in our statutes, or in principle 
to prevent the operation of the rule here. 

We have said that the sale of the interest of James 
Tradewell as mortgagee, conferred upon the purchaser un- 
der the execution, not the absolute right to the property, 
but his right and interest, as if he had assigned the mort- 
gage himself, instead of having it sold by the Sheriff. — 
Blocker is then the assignee, and stands in the place of 
James Tradewell. The mortgagor, Wm. Tradewell, and 
his representatives have the right of redemption by paying 
up the amount due. This is the position which Blocker 
occupies to the property, and the case being in equity, and 
all the parties before the court, it may well ascertain the 
extent and value of this interest. The mortgage is com- 
plained of as fraudulent. Whilst there are circumstances 
about it, not altogether satisfactory to us, yet we prefer 
that this matter be ascertained by the Judge below on a 
new hearing, with the assistance of a jury, if deemed pru- 
dent and necessary. The original bond should be produced 
if to be had. It seems that the bond is very nearly, if not 
wholly paid; if this be the fact then Blocker has no rights 
under his execution, whatever may be his rights as a credi- 
tor of Wm. Tradewell. 

Whilst then we concur with the Circuit Court as to the 
equities of Cotten, under the agreement of Wm. Tradewell, 
we differ as to the absolute dismissal of the bill. It should, 
in our opinion, have been retained as a creditors' bill, and 
be proceeded with accordingly. The decree is, therefore, 
reversed and set aside with costs, and the cause remanded 
for further proceedings not inconsistent with this opinion. 



12 SUPREME COURT. 



Rhodes vs. Moseley. — Opinion of Court. 

John H. Erodes, Plaintiff in Error, vs. W. P. Moseley, 

Defendant in Error. 

1. Notice should be given to the party in interost.of an application to establish 
a lost paper. 

2. An officer of the court has no right to use the names of the parties to an ap- 
plication of his own for such purpose. 

For a statement of the facts reference is made to tlie opin- 
ion of the court. 

Archer <£• Papy for plaintiff in Error. 

W. Call for Defendant in Error. 

BALTZELL, C. J., delivered the opinion of the court. 

The Sheriff of Leon county made an affidavit, alleging 
that a writ of fi. fa., issued by the Clerk of the Circuit 
Court to the Sheriff in favor of Wm. P. Moseley vs. John 
H. Ehodes — that the original, of which a copy was in his 
possession, has been lost or mislaid, a copy of which he at- 
taches to his affidavit: 

At the October Term, 1853, the following entry was 
made: 
William P. Moseley, Plaintiff, ^ 



vs. Y 



On petition of Sheriff to es 

T 1 TT -r»i T T^ i. 1 1 • lablish lost execution. 
Jolm H. Rhodes, Defendant, j 

"It appearing to the court from the petition and accom- 
panying papers filed by the Sheriff of Leon county in the 
case, that a pluries writ of execution was issued from the 
Clerk's office, and that the said writ was lost or mislaid, &c. 

"It is therefore ordered, that ihe said copy be establish- 
lished in lieu of the original and be valid for all purposes for 
which the original writ of execution would have been." 

It has not been denied that the court has power to es- 
tablish lost papers, but the action complained of in this 
instance is that no notice was given. 

Another irregularity is evident, that the Sheriff has no 



TEKM AT TAI.LAHASSEE, 1855. 13 

Hardee & Co. vh. Lanerford. — Statement of Case. 

power to originate motions or present (lucstions in the 
name of the parties, for the action of the court. The par- 
ties themselves are alone competent to this duty. 

The petition should he theirs and in tlie form of an ap- 
plication, with notice to the adverse party. We are satis- 
fied that the irregularity escaped the attention of the learn- 
ed Judge who presides in that court. 

The order will be set aside, with leave to the parties to 
renew their motion in a proper manner. 



L. A. Hardee £ Co., Appellants, vs. George Langford, 

Appellee. 

1. Tbe provision contained In the 4th paragraph of the 3rd Section of the 
Act of 1834, (Thomp.Dlg., 370.) which requires that "the evidence shall 
be confined strictly and exclusively to the state of facts alleged in tbe plain- 
dlTs affldavit,as they existed at the time of issuing the attachment" ha9 re- 
ference only to cases pending at the time of the passage of the act 

2. The decision in the case of Kennedy vs. Mitchell, (4 Florida B. 457,) which 
is an adjudication upon the proviso contained in the 5th paragraph of the 
same section, referred to and approved. 

8. It is a general rule to be observed in the construction of statutes that where 

they provide extraordinary remedies, they should be strictly construed. But 

In view of the fact that there exists no provision for "special bail" In this 

state,that rule may be somewhat relaxed in its application to the attachment 

laws, whenever by so doing the cause of Justice may be advanced. 

4. A debtor may by his declarations of lntention,or avowal of design, in regard 
to the fraudulent disposal of his property,bring himself as effectually under 



14 SUPEEME COURT. 

Hardee ft Co. n. Langford. — Statement of Case. 

the operation of the statute, as by the commission of any overt act, either 
consummated or in proirress of consummation. 
5. It is a saf^ rule to be adopted in respect to the admission of evidence on the 
trial of the issue of fraud or no fraud, arising under the attachment law, 
that the evidence whether consisting of overt acts, or mere declarations of 
intention.shall not have transpired at so remote a period as to prevent their 
becoming a part of the rea geatts, and the determination of this, must be 
left to the sound discretion of the Judge, presiding at the trial of the Issue. 

Appeal from the Circuit Court of Columbia County, Hon. 
J. J. Pinley presiding. 

This was an action of assumpsit instituted by appellants 
by attachment. The ground alleged in the affidavit on 
which the writ of attachment issued, is "that the said 
George Langford is fraudulently disposing of his property 
for the purpose of avoiding the payment of his just debts.** 

The defendant Langford afterwards made affidavit, de- 
claring the said allegation of the plaintiff upon which the 
writ of attachment issued, to be untrue. 

Previous to the trial of the issue thus joined, the plain- 
tiffs moved a continuance of the cause, based on an affida- 
vit, alleging that "John B. Smith is a material witness for 
them, and that they could not safely go to trial without the 
testimony of said witness; that said witness has been sub- 
pcBuaed and is not absent by the consent or procurement of 
plaintiffs ; that they expected to be able to prove by said 
witness that the defendant proposed to said witness to claim 
his (defendant's) horse, to prevent said horse being taken 
for defendant's debts, and that said proposition was made 
to said witness but a few days or a week before the attach- 
ment was commenced, and that the affidavit was not made 
for the purpose of delay.'* The court over-ruled the motion, to 
which over-ruling, plaintiflb by their counsel excepted. : 

On the trial of the cause, the plaintiffs introduced as a 
witness, Wiley Langford, who was asked : did the defend- 



TEBM AT TALLAHASSEE, 1855. 15 

H«idae A Co. ts. Langford. — 8t«tement of Cm*. 

• 

ant offer to dispose of his property at or about the time the 
writ of attachment issued? To which he answered: "that 
about three weeks before or more, defendant offered to sell 
him a horse." The court then refused to allow him to tes- 
tify any further in reference to the offer to sell the horse to 
witness at that time, to which the plaintife excepted. — 
Plaintiffs' counsel then asked the witness: *^hat did de- 
fendant say at that time was his intention in attempting to 
dispose of his property? The court over-ruled the ques- 
tion and plaintiffs' counsel excepted. Plaintiffs' counsel 
then asked witness to state what defendant said about dis- 
posing of his buggy; to which he answered: "on the same 
evening that defendant bought the buggy of plaintiffs', he, 
witness, had a conversation with defendant about the dis- 
position of his horse." Plaintiffs' counsel then asked wit- 
ness to state what he knew about plaintiffs' going out to de- 
fendants to purchase a horse." Witness answered that "two 
or three weeks before the writ of attachment issued Good- 
bread, one of the plaintiffs, went to defendant to purchase a 
horse." Plaintiffs' counsel then asked witness what took place 
at that time between plaintiffs and defendant ; the court over- 
ruled the question and plaintiffs excepted. 

The jury having found the issue in favor of the defend- 
ant, judgment was rendered accordingly, and plaintiffs 
prayed an appeal. Appellant assigned the following er- 
rors. 

First ; The court erred in refusing a continuance. 

Second ; The court erred in refusing to let witness testify 
farther as to what took place three weeks or more before 
writ issued. 

Third; The court erred in refusing to allow witness to 
testify in answer to the interrogatory as to the intention of 



16 SUPEEME COUET. 

Hardee & Co. vs. Langford. — Opinion of Court 

• 

defendant in disposing of his property, it being three weeks 
or more before writ issued. 

Fourth ; The court erred in refusing to allow witness to 
testif}"^ as to what took place between plaintiffs and defend- 
ant two or three weeks before attachment writ issued, at 
the time plaintiff Good bread went to defendant to purchase 
a horse. 

DUPONT J., delivered the opinion of the court. 

This case comes up from the Circuit Court of Columbia 
county, and should properly have been heard at the last 
term of the court held in Jacksonville, in the Eastern Ju- 
dicial District; but upon the application of the Counsel 
and for their accommodation, we have consented to have 
it docketed and heard at the present term in the city of 
Tallahassee. 

The point in controversy arose upon a motion to dissolve 
an attachment which had been sued out by the plaintiffs, 
and levied upon the property of the defendant. The 
ground set forth in the affidavit and upon which the writ 
was issued is, that "the said George Langford is fraudu- 
lently disposing of his property, for the purpose of avoid- 
ing the payment of his just debts/' and is in due form and 
in strict accordance with the terms of the Statute. 

The Statute provides, that "such writ shall in no case 
be issued, unless the party applying for the same, or his A- 
gent or Attorney shall first make oath in writing, that the 
amount of the debt or sum demanded is actually due, and 
also that the party from whom it is due, is actually remo- 
ving out of the State, or resides beyond the limits thereof, 
or absconds or conceals himself or is removing his proper- 
ty beyond the limits of the State, or secreting or fraudu- 
lently disposing of the same, for the purpose of avoiding 



TERM AT TALLAHASSEE, 1855. 17 

Hardee & Co. vs. Langford. — Opinion of Court. 

the payment of his just debts.^' Vide Thomp. Dig., 367, 
Sec. 1, Par. 2. 

At page 369 of the Digest, Sec. 3, Par. 3, it is further 
provided, that "the courts respectively to which such at- 
tachments are returnable, shall be always open for the pur- 
])use of hearing and determining motions for dissolving 
such attachments; and in such cases, upon oath made and 
tendered to the court, that the allegations in the plaintiff's 
affidavit are untrue, either as to the debt or sum demanded, 
or as to the special cause assigned, whatever it may be, 
for granting the attachment, then in every such case, it 
shall be the duty of the court to hear evidence upon the 
issue so presented, and if in the opinion of the court, 
the allegations in the plaintiff's affidavit are not sus- 
tained and proved to be true, the said attachment shall be 
dissolved : Provided, that if the party defendant shall de- 
mand the same, a jury shall be empanelled to try the issue 
joined as aforesaid." 

The statute also provides for the issuing of writs of attach- 
ment in cases where the debt may not have become due, 
but as that provision is not applicable to this case it is un- 
necessary to advert to it. Under the provision last cited, 
the defendant at the term of the court to which the writ 
had been made returnable, filed his affidavit, alleging there- 
in, that the groimd as set forth in the affidavit and upon 
which the writ of attachment had issued, to wit : "that he 
the defendant, George Langford, was at the time set forth 
in the plaintiff's affidavit, fraudulently disposing of his 
])roperty for the purpose of avoiding the payment of his 
just debts,'^ was untrue. Issue was thereupon joined, and 
n jury empanelled to try the game; who having heard 
3 



18 SUPEEME COUBT. 

Hardee ft Co. ts. Lan^ord. — Opinion of Court. 

the evidence and considered upon their verdict, "returned 
that the defendant was not fraudulently disposing of his 
property to avoid the payment of his just debts/' and judg- 
ment was entered accordingly. 

The first error assigned is, "that the court erred in re- 
fusing a continuance.^' At common law, the granting or 
refusing of a continuance, is a matter exclusively within 
the discretion of the nisi priiis Judge and not examinable 
upon writ of error. But our statute (Pamphlet Laws 100, 
Sec. 1,) has altered the practice in that particular, and 
that matter may now be assigned for error in any proceed- 
ings occurring in the courts of our State (Vide Dawkins 
vs. Carrol, 5 Fla. Eep., 407.) It appears by the record that 
the plaintiff moved the court for a continuance of the case 
to the next term, and based his motion upon the usual affi- 
davit; and in order to determine upon the propriety of the 
ruling, it becomes necessary to refer to the contents of the 
same. 

The affidavit is drafted with skill and precision and con- 
tains all the usual requirements. It is based upon the ab- 
sence of a material witness, and sets forth fully and clear- 
ly the facts expected to be testified to, by said witness, as 
follows: "that he expected to be able to prove by said wit- 
ness, that the defendant proposed to said witness to claim his 
(defendant's) horse, to prevent said horse from being taken 
for defendant's debts; and that said proposititon was made 
to said witness but a few days or a week before the attach- 
ment suit was commenced." 

Had it not been for the point made in the argument, we 
should have been at a loss to discover the ground upon 
which the ruling of the court below, refusing the motion 
for continuance was based, for it appears to us that the af- 



TEBM AT TALLAHASSEE, 1855. 19 

Hardee ft Co. ys. L4Uigford. — Opinion of Court. 

fidavit, was ample and sufficient for the attainment of the 
object contemplated. 

The counsel for the Appellee, cited Thomp. Dig., 370, 
Sec. 3, Par. 4, and founding an argument upon the pecul- 
iar phrasology of that paragraph, contended that the affi- 
davit was insufficient in this — that it did not show that the 
matter of fact to be testified to, transpired at the date of the 
affidavit upon which the writ of attachment was issued, but 
that it did show afiPirmatively, that the fact, if it did occur, 
transpired several days prior to that date. That the terms 
of the statute are peremptory, that "on the trial of any 
such motion, the evidence shall be confined strictly and ex- 
clusively to the state of facts alleged in the plaintiff's affi- 
davit, as they existed at the time of issuing the attachment;'* 
and consequently, that the ruling, refusing to grant the con- 
tinuance, was correct, as the Judge would have been bound; 
by this peculiar provision of the statute, to have rejected 
the evidence when offered, upon the groimd of irrelevancy. 

It is a sufficient answer to this argument, to state, that 
the statute is of no force in this case, having expired by 
the terms of its own limitation, long anterior to the time at 
which the writ of attachment was sued out. 

The language of the statute is as follows: "In all ca- 
ses of attachment now pending before the courts of this 
State, motions may be made, and shall be heard and deci- 
ded, for dissolving the same, in the manner directed in the 
last preceding section of this act; but on the trial of any 
such motion the evidence shall be confined strictly and ex- 
clusively to the state of facts alleged in the plaintiff's affi- 
davit as they existed at the time of issuing the attachment." 

Now it is perfectly obvious that the language of the act 
provides for and limits its operation exclusively to cases 



20 SUPREME COURT. 

Hardee & Co. vs. Langford. — Opinion of Court. 

which were pending before the court at the date of the en- 
actment. The words are : "in all cases now pending be- 
fore the courts of this State." 

If language affords any index of intention, it is perfectly 
evident tliat the Legislature could not have selected words 
more signiificant of their purpose. Nor do we perceive that 
the argument gains any advantage or benefit, by invoking 
the Spirit of the act, for in the very next succeeding par- 
agraph, (Par., 5,) provision is made in regard both to suits 
thereafter to be commenced, and to suits then pending. And 
in regard to the correct interpretation of the latter para- 
graph, if there was ever any doufct as to the intention of 
the Legislature, that doubt has been removed by an author- 
itative exposition of the same, in the adjudication of the 
case of Kennedy vs. Mitchell, (4 Fla. Reps., 457) in which 
the point now under consideration arose, and was express- 
ly decided. 

Justice Semmes, in delivering the opinion of the court, 
in that case, says: "It is insisted, however, by counsel, 
that, under the proviso to this section of the act, (Par. 5,) 
the motion to dissolve the attachment, must be made at 
or before the first term of the court to which the suit is 
brought, in order that a dissolution of the attachment shall 
operate as an abatement of the suit and authorize the court 
in dismissing it. We are of a different opinion. It is very 
manifest that the proviso refers to the latter clause of the 
6th Article of the Act, having reference to causes theri pend- 
ing and restricted the motion to dissolve, not only to such 
causes, but to the first term of the court after the passage 
of the law; whereas, the first clause of the same Article, 
providing for the dissolution of attachment before and af- 
ter plea to the action, has reference exclusively to suits 
thereafter to be commenced." 



TERM AT TALLAHASSEE, 1855. 21 

Hardee & Co. vs. Langford. — Opinion of Court 

The Judge, in commenting upon the peculiarity of the 
provision, remarks: **To give this statute a different con- 
struction, would be at variance with its letter and spirit, 
and render its provisions inconsistent and contradictory; 
and however much it is to be regretted that this special 
legislation in reference to cases tlien pending before the 
courts, should have been resorted to, yet it is not the prov- 
ince of this court to extend the operation of the act to ca- 
ses not contemplated by the Legislature." 

Tlie present meml>ers of the court cordially concur with 
their respected predecessors, in the expression of their re- 
gret that our Statute Book should ever have been soiled by 
legislation of so viscious and corrupting a character. But 
while they have thus given expression to their just indig- 
nation, a due regard for the character of the State, makes 
it proper to remark, that this singular statute owes its pa- 
rentage to our former Territorial organization, having been 
enacted in 1834, a period of eleven years anterior to the 
organization of our State government. It is very manifest 
from the concurrence of these two sections, embraced in 
the same act, that it was the intention of the Legislature 
that their provisions should have reference and be applied 
to causes then pending at the date of its passage ; and it is 
not for this court, however much it may condemn the mo- 
tive, to disregard that intention, by giving to them a more 
extended operation. The argument then, predicated upon 
the phraseology of the said fourth paragraph of sec. 3, en- 
tirely fails, and we are to consider the motion for the con- 
tinuance, based as it is upon the contents of the plaintiffs' 
affidavit, as though that provision had never been incorpo- 
rated into the act. 

Considered in this light, two questions are prominently 



22 SUPBEME COUET. 

Hardee ft Co. vs. L4Uigford. — Opinion of Court. 

presented for our decision. First, the character of the evi- 
dence necessary to convict a defendant of making "a fraud- 
ulent disposition of his property, for the purpose of avoiding 
the payment of his just debts ;^^ and secondly, the particu- 
lar time to which this evidence shall be limited. 

In regard to the first point, we are of opinion, that the 
declarations of a party, deliberately made, afford the most 
potent evidence of his intention — the evidence thus furnish- 
ed being ordinarily more conclusive than that derived from 
overt acts, for the latter may often be misinterpreted, while 
the former will rarely be misunderstood. Thus to apply 
this doctrine to the case before us: Supposing that the 
witness when produced, would testify as deposed to by 
plaintifiF in his affidavit. He says in his affidavit for a con- 
tinuance that "he expects to be able to prove by said wit- 
ness that defendant proposed to said witness, to claim his 
(defendant's) horse, to prevent said horse from being taken 
for defendant's debts ;" and that said proposition was made 
to said witness but a few days or a week before this attach- 
ment suit was commenced.'' Here the proposal to place 
the property into the possession of another and the avowal 
of the motive is distinctly made, and had the proposal been 
acceded to, the fraudulent disposition of the property, a- 
gainst which the statute intended to provide, would have 
been fully consummated, at least so far as the act of the 
defendant could have effected that purpose. Now when 
called upon to interpret this transfer of the possession of 
the property, no one could doubt the fraudulent character 
of the act, when coupled with the avowal of the motive. — 
But had there been a simple transfer of the possession by 
sale or otherwise, and no declaration of motive mude, 
there might have arisen some doubt as to whether it was 



TEEM AT TALLAHASSEE, 1855. 23 

Hardee ft Co. ts. L4Uigford. — Opinion of Court. 
t 

made with a fraudulent intent, or bona fide. 

But it has been contended by some who have essayed to 
construe this clause of the statute, that it never was the 
design of the Legislature in making this a ground of at- 
tachment, to act upon the intention of the debtor, but there 
must exist some overt act, either in the progress of consum- 
mation, or already fully consummated. To give the clause 
such a construction, we think would be effectually to nul- 
lify it, and to render its operation wholly nugatory, for it 
would inevitably happen, that in the great majority of ca- 
ses, the issuing of the writ after the "fraudulent disposaF' 
of the property had been consummated, would produce no 
beneficial result. We are aware of the rule which re- 
quires that a statute providing extraordinary remedies 
should always be strictly construed, but while we fully 
recognize the authority of that rule, we are reminded that 
the ordinary remedy of "special bail," afforded in England 
for the protection of the creditor, has been entirely abol- 
ished, or rather never existed in this State, and that the 
nearest approximation which he has to an efficient protec- 
tion, is to be foimd in the provisions of the attachment law; 
consequently there would seem to be a propriety in relax- 
ing somewhat, the stringency of the rule, when applied to 
the construction of these statutes, whenever by so doing, 
the cause of justice may be advanced. Erom what we 
have said on this point, it will be perceived that the con- 
clusion to which we have come is, that a debtor may, by 
his declaration of intention, or avowal of design, as effec- 
tually bring himself under the operation of this clause of 
the statute, as he would by any overt act, either consum- 
mated or in progress of consummation. 

We now address ourselves to the consideration of the 



24 SUPREME COUKT. 

Hardee & Co. vs. Longford. — Opinion of Court. 

Fecond point of enquiry, viz: "The point of time to which 
such evidence shall be limited." In determining tliis ques- 
tion, we think it a safe rule to be adopted, that the evi- 
dence, whether consisting of overt acts or mere declara- 
tions of intention, shall not have transpired at so remote 
a period as to prevent it becoming a part of the res gestce; 
and to determine this, the Judge who presided at the trial 
must exercise a sound discretion, being governed in his 
conclusions by the attendant circumstances. 

Applying the rule to the case before us, we do not think 
that a "few days" or even a "week," or more, (as was pro- 
posed to be deposed to by the absent witness,) anterior to 
the suing out the writ of attaclimeht, constituted such a re- 
moteness of time, as of itself, ought to have excluded the 
evidence on the ground of irrelevancy; and we feel as- 
sured that had the learned Judge who presided at the trial, 
not been led astray by having his attention directed to the 
peculiar phraseology of the 4th paragraph of the 3rd arti- 
cle, before referred to, he would not have hesitated to have 
granted the continuance prayed for, upon the showing con- 
tained in the affidavit of the plaintiff. Deeming the cau- 
ses set forth, amply sufficient to sustain the motion for the 
continuance, we therefore sustain the first assignment of 
error. 

As the judgment must be reversed upon the view we 
have taken of the error first assigned, it seems unnecessary 
to go into a critical investigation in regard to the remain- 
ing assignments. It may suffice to remark that the views 
already expressed will apply with equal force to them. 

We have given the greater attention to the consideration 
of the point involved in this case, from the fact that it must 
frequently arise in practice; and from the further consider- 



TERM AT TALLAHASSEE, 1855. 25 

■ I » !■■■ ■ .^m^m^m m^^^^ *■ !■ — ^^^ m i ■ ■■ im^^i^^ma m ■ »■■ ■■ ■ ■» ■ ■ i i — ■ ^ f ' ' - • - 

— ■ ■ ■ ^ . ^ ■ ■ .,1 ■ 

Sealey vs. Tbonias and Wife, Ex*or and Ex'trlx. — Opinion of Court. 

ation, that tlie process of attaclinient furnishes the most ef- 
ficient, and almost only protection to creditors, against the 
frandnlent attempts of dishonest debtors. 

The judgment of the Circuit Court will be reversed with 
costs. 



EVERITT W. SeALEY, APPELLANT, VS. WiLLIAM C. ThOMAS 

AND Wife, Executor and Executrix of J. B. Page. De- 
ceased, Appellees. 

1. The doctrine that a "personal action once In suBpcnse by the act of the 
party entitled to It, Is always extinguished," — questioned. 

2. If an executor or administrator receive assets of the estate,sufflclent to sat- 
isfy his debt due from the testator or Intestate, this, at common law, op- 
erates an extinguishment of his demand. 

8. But the provision of the statute, which takes away the right of retainer in 
cases of infolvency, so far modifies this doctrine as to confine Its operation 
exclusively to solvent estates. 

4.When a defendant sets up as a bar to the action that the plaintiff In the char- 
acter of executor had received assets sufllclent to satisfy his debt, it is neith- 
er necessary nor proper, that the pica should allege,that the estate was sol- 
vent ; but If an Insolvency is relied upon to bring the base within the opera- 
tion of the statute, the fact should be distinctly avered in the replication 
by way of avoidance. 

5. It is the first essential of good pleading, that it be characterised by certain- 
iff, and this quality is especially requisite In the replication. 

The opinion of the court embodies a full statement of the 



26 SUPEEME COTJET. 

Bealey vs. Thomas and Wife, Ex'or and Bz*trix. — Opinion of Coart. 

facts presented by the record, to which reference is made. 
W. Call, for Appellant. 
J. Erskine, for Appellee. 
DUPONT, C. J., delivered the opinion of the court. 

The record before us presents the following state of case. 
The appellant instituted his suit against the appellees, as ex- 
ecutor and executrix of John B. Page, deceased, in the Cir- 
cuit Court of JefiEerson county, and at the April term, A. 
D., 1853, of said court, filed his declaration in an action of 
assumpsit. The declaration is in the usual form, contain- 
ing the indebitatus count for work and labor — goods sold 
and delivered, together with the several money counts. — 
On the 12th day of July, A. D. 1853, the defendants filed 
their plea of non assumpsit, upon which issue was joined. 
And again, on the 10th day of November, A. D., 1853, they 
filed other special pleas, which upon motion were stricken 
out, for the reason, we presume, that they had not been 
filed within the time prescribed by the rules of court. — 
At the same time the parties went to trial upon the gener- 
al issue, and a verdict was rendered for the plaintiff. The 
defendants thereupon moved in arrest of judgment, which 
motion prevailed and a venire de novo awarded, with leave 
to botli parties to amend their respective pleadings. 

At the next ensuing term, the plaintiff filed his amend- 
ed declaration and the defendants filed two additional pleas, 
numbered 4 and 5, respectively. No. 4 states by way of 
inducement, that the testator. Page, had appointed the 
plaintiff and his widow, Sarah C, executor and executrix of 
his last will and testament, who were duly qualified, and 
assumed the duty of the administration. That Sarah 
C, afterwards intermarried with the defendant, William 
C, who thenceforth became executor in right of his wife, 



TERM AT TALLAHASSEE, 1855. 27 

a = 

Sealey vs. Thomas and Wife, Bx'or and Bz*trlz. — Opinion of Court. 

and concludes with the averment, that a large amount of 
assets belonging to the testator came to the hands of the 
said plaintiff as executor, and to the hands of the said 
plaintiff and the said Sarah C, as such executor and execu- 
trix before her said intermarriage. Plea No. 5, is a com- 
mon plea of payment, concluding with a verification, and 
seems to have been abandoned in the further progress of 
the cause, as there is no replication to the same nor any 
further notice taken of it in the record of the proceedings. 

The 4th plea the plaintiff demurs generally, and sets 
forth (under the rule,) as special grounds of demurrer: — 
1st, That the plea does not allege that the estate of the 
testator was solvent, 2nd, That it does not allege that 
there was a sufficiency of assets in the hands of the execu- 
tor to pay his debt, after paying all preferred debts, 3rd, 
That it does not allege tliat plaintiff did retain, 4th, That 
at the time said supposed right of retainer attached, said 
plea does not allege, either "that legal notice had been giv- 
en, that two years had elapsed, or that all preferred debts 
has been paid. And 5th, That the plea is uncertain, inform- 
al and in other respects insufficient. 

Upon the argument of this demurrer, the court over- 
ruled the same, and thereupon the plaintiff filed his repli- 
cation. 

The replication admitting and confessing the matters of 
inducement as set forth in the plea, "avers that he, plain- 
tiff, did not retain the whole or any part of said indebted- 
ness out of said assets, and that he was afterwards, to wit: 
on the day discharged as executor 

from said estate, without retaining or being allowed the 
same,*' and concludes with a verification. To this replica- 
tion the defendant filed a general demurrer, which was 



V»S SITIMJKME COURT. 



So»K\\ \*. TUoniAK ntul WIfo. Kx*or anil Kx'trlx. — Opinioo of Court. 



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,N*^xv;i\\' c^.r^i ;i>sii:iHN^. jlv {oKOwirc orrxr^, viz: 

» \ ^ 

*, n:» r^ a; :?o K\^\;Vt enwi ir: x \orr;:::ni: plaintiffs demur- 

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v»vT '■■ >. *\$i<i^K V"r T^iVT/^ :.* !is 7?.cw «s ":: i^rs Tuiiver- 

>^>*u • ♦o \ *v>^T >i->T^,"* ,*iT-ivisV.v ■'.r- "::>* r>^T to 



^-•ir tn. T». :»» >«;r-: .-.•"». <.r„, iri^^v-.-w^ »1« hat 



30 SUPEEME COURT. 

Sealey vs. Thomas and Wife, Ex'or and Ex'trlx. — Opinion of Court. 

property is as strongly altered as it could be by recovery 
and execution." 

Holt, C. J., in Wankford vs. Wankford, reported in Salk, 
299, lays do\*'n the doctrine thus, "if the obligor make 
the obligee or the executor of the obligee, his executor, 
this alone is no extinguishment, though there be the same 
hand to receive and pay; but if the executor has assets of 
the obligor, it is an extinguishment, because then it is with- 
in the rule, that the person who is to receive the money is 
the person who ought to pay it; but if he has no asests, 
then he is not the person that ought to pay, though he is the 
person who ought to receive it; and to that purpose is the 
case of 11 Hen., IV 83, and the case of Dorchester vs. Webb 
Cro., 372." 

In the case of Plowden above referred to, it is also as- 
signed as a ground for the doctrine of extinguishment, that 
by the merger of the character of creditor into that of ex- 
ecutor or administrator, the right of action for his debt is 
gone, and that "a personal action once in suspense by the 
act of the party entitled to it, is always extinguished." 

This position in regard to the non-revival of a personal 
action once suspended, seems also to have been recognised 
and sanctioned in the case of Smith vs. Watkins, 8 Humph- 
ries R., 341 ; and also in the case of Page vs. Patton, et 
al. ; 5 Peters S. C. E., 313, cited by the counsel for the ap- 
pellees. But with the utmost deference for such high au- 
thority, we are inclined to doubt the correctness of the po- 
sition as a principle of law, for it is not universally true, 
that a personal action which has been once suspended, may 
not again be revived. The case of a feme losing by cov- 
erture her right to sue for a chose in action during the life 
of her husband, and the revival of that right after his death 



TEEM AT TALLAHASSEE, 1855. 31 

Sealey yb. Thomas and Wife, Bz'or aad Bx'trlx. — Opinion of Codrt 

if he had not reduced it into possession, is one amongst 
many familiar instances, which go to prove the unsound- 
ness of the position. 

Prom the examination which we have given this subject, 
it is very clear to our minds, that the only rational ground 
upon which the doctrine of "extinquishmenr as contro- 
distinguished from that of "retainer,*^ can be placed is, that 
it is a mere presumption, that as the executor has in his 
hands the entire assets of the estate, and is authorized to 
appropriate them in the pa3rment of debts, he will not fail 
to give his debt the preference over all others of an equal 
degree. If then we are correct in this view, it seems ex- 
ceedingly strange and unaccountable, how it should ever 
have come to be decided, that the executor should be de- 
nied the right to rebut this presumption by proof. It is to 
be accounted for only for the great favor which legal pre- 
sumptions foimd with the early common law Judges. And 
were it now a question of first impression of one not closed 
by an almost xmbroken current of English and American 
adjudications, we are free to say that we should be dis- 
posed to treat it as a mere presumption and allow it to be 
rebutted by ordinary proof as in other cases. And we are 
not without the warrant of high authority for this view of 
the subject. In the case of Page vs. Patten, et al., above 
cited, at page 314, Justice McLean, in delivering the opin- 
ion of the court, remarks as follows: "the law presumes 
his own debt to be satisfied, when assets come to his hands 
to the amount of it, there being no debts of higher degree. 
But may not this presumption be rebutted by an applica- 
tion of the money in the payment of other debts.*^ Again 
at page 315, he says : "the right of an administrator to re- 
tain the money in his hands for the discharge of his own 



33 SUPREME COURT. 

Sealey vs. Thomas and Wife, Ex'or and Ex'trlx. — Opinion of Court. 

* — 

debt, is as unquestionable as if it had been paid to him on 
execution. It is his own, and he may retain it as such. — 
Tliis is is tlie case put by somt of the Judges in illustration 
of the principlcv^, hid if is nowhere said that a waiver of 
this right is an abandonment of it.*' Again at page 316, 
he says: "if such a right did not exist, the executor or ad- 
ministrator, would be in many cases without remedy. The 
principle was intended for his benefit and not to mislead or 
entrap him/* 

But notwitlistanding these liberal and enlarged views, 
this distinguished jurist felt himself, as did the majority of 
tlie court, constrained to adopt the English view of the sub- 
ject. And with such precedent before us, we are admon- 
ished to beware of rashly trenching upon a well establish- 
ed canon of the common law, as announced by its early 
sages. It may be proper to remark, however, that the 
case last referred to, involved a contest between the res- 
pective beneficiaries of the legal and equitable assets of 
the estate. How the question might have been decided, 
had it been presented as it is by the pleadings in this cause 
it is useless to conjecture. 

But it was contended by the counsel for the appellant, 
that by virtue of our legislation on the subject, the com- 
mon law doctrine of retainer has been wholly superceded 
and we were referred to Thompson's Dig., 196, 8 6. — 
The Section referred to is in these words : ^T^f a creditor 
be appointed the executor or executrix, the administrator 
or the administratrix of an estate, and the said estate be 
insolvent, he or she shall not thereby be entitled to prefer 
his or her debts to the exclusion of other demands against 
said estate, but shall be bound to make a pro rata settle- 



TEEM AT TALLAHASSEE, 1855. 33 

Sealey y». Thomas and Wife, Ex'or and Bz'triz. — Opinion of Coart. 

ment of all demands which may be rendered in, according 
to law." 

It is an admitted canon, applicable to the construction of 
statutes, that where a statute contravenes or alters a prin- 
ciple of the common law it must always be strictly construed. 
And without any very stringent application of the rule, it 
eeems to us very obvious, that the provision referred to is 
confined exclusively to insolvent estates, and that it was 
not the intention of the Legislature that it should have any 
more extended operation. The statute on this subject in 
the State of Alabama is similar to ours, and the case cited 
by the counsel for the appellant, as an adjudication on the 
operations of that statute, would seem to sanction the 
views taken by us. (Vide Shortbridge vs. Easely, 10, Ala.; 
Bep. N. S., 520.) 

In the State of Tennessee, a similar provision is incorpo- 
rated into their statute law, and in tlie case of Smith vs. 
Watkins, 8 Humphreys Kep., 341 — 2, the point now under 
consideration, was expressly adjudicated, and the decision 
of the court fully sustains our views. Green, Justice, in 
delivering the opinion of the court, says: "We do not 
think this doctrine is at all affected by our legislation ex- 
cept in relation to insolvent estates. Our insolvent laws 
require a distribution pro rata of an insolvent estate among 
all the creditors; and of course in such case the right of 
retainer does not exist. But in relation to estates not oper- 
ated upon by these laws, the common law doctrine of re- 
tainer applies in all its force. But for these laws it is ad- 
mitted, the doctrine would exist here; and we are unal)le 
to perceive the force of the argument, that the change our 
L^islation has made in relation to the estates of insolvent 
persons, by consequence, works such a change in the prin- 
4 



34 SUPEEME COUBT. 



Sealey vs. Thomas and Wife, Bx'or and Bx'trix. — Opinion of Conrt 

ciple of retainer, so as to modify the doctrine from a con- 
clusion of law, to a mere presumption of fact.'^ Sustain- 
ed as we are, by this concurrent authority, we are the more 
confident in the correctness of the conclusion to which we 
have arrived, that the provision of our statute, which was 
cited by the appellant's counsel, has made no such change 
as is contended for, nor indeed any change except in rela- 
tion to the class of estates to which it applies in terms. 

Now as the fact of insolvency, if it did really exist, was 
a matter to be replied by way of avoidance, it was not ne- 
cessary or proper that the plea should have alleged the sol- 
vency; the legal presumption is, that the estate is solvent 
until the contrary is made to appear. 

Not feeling that the principle involved in this case 
would authorize us to disregard the maxim of Stare deci- 
sis, we are constrained to overrule the first assignment 
of error, and to aflSrm the judgment of the court below 
which overruled the plaintiffs demurrer to the defendant's 
fourth plea. 

The 2nd error assigned is, "that the court erred in sus- 
taining defendant's demurrer to plaintiff's replication." 

In order to determine upon the correctness of this assign- 
ment, we must revert to the pleadings as they are set forth 
in the record. The plea sets up as a bar to the action^ 
that the plaintiff in his character of executor, had received 
of the assets of the estate an amount more than sufficient 
to satisfy his demand against the testator. The replication 
admitting the matter of inducement stated in the plea, viz: 
that he had assumed the execution of the will, and had 
received a sufficiency of assets, attempts to avoid the bar 
by alleging that he had been "discharged as executor 
from said estate, without retaining or being allowed the 



TEBM AT TALLAHASSEE, 1855. 36 

Bealey ▼•. Thomas and Wtfe» Ex'or and Bx'tiiz. — Opinion of Conrt 

same." To this ^replication there was a demurrer which 
raised the question of its sufficiency as an answer to the 
plea, and this is the point we are called upon to decide un- 
der this assignment as error. 

The averment of the replication is in the following words, 
viz: **but plaintiff avers that he did not retain the whole 
or any part of said indebtedness out of said assets, and 
that he was afterwards, to-wit : on the day of 

discharged as executor from said estate, without retaining 
or being allowed the same/* Now without invoking the 
stringency of that rule which requires, that in the inter- 
pretation of the language of any pleading, it shall be taken 
most strongly against the parties using it, it is very obvious 
that the term "discharge" as used in the replication may 
veiy well comport with the idea of a regular discharge af- 
ter full administration, and by no means contravenes that 
idea. But giving to the term the interpretation contended 
lor, viz, an involuntary or compulsory dismissal, from 
the office of executor, yet the other hypothesis as- 
sumed in the argument, viz: that the discharge occurred 
prior to the expiration of the two years prescribed by the 
statute for the settlement of estates, is wholly unsustained 
by any averment in the replication. The date of the alleged 
discharge is in blank, and even if the blanks had been fill- 
ed up with the day and year, yet the averment would 
still have been defective for the want of an express allega- 
tion that this date was prior to the lapse of the two years; 
for otherwise the conclusion could have been arrived at 
only by a course of calculation, which would have render- 
ed the pleading argumentative and therefore defective. — 
The replication is clearly bad for the want of certainty, 
both as regards the date and the character of the discharge. 



36 SUPREME COUKT. 



Sealey vs. Thomas and Wife, Ex'or and Ex'trlx. — Opinion of Court. 

It is the first essential of good pleading that it be charac- 
terized by certainty, and this quality is especially requisite 
in a replication. Mr. Archbold in his work on Pleading 
and Evidence says : "the declaration must show plainly and 
certainly all circumstances material to the maintenance of 
the action; for if there be two intendments, it shall be ta- 
ken most strongly against the plaintiff." Arch. Plead. & 
Evidence, 108. Again he says: "the rules of pleading in 
case of declarations and pleas in bar are applicable also 
to replications." lb., 242. And again: "a replication re- 
quires more certainty than a declaration." lb., 257. 

The case was further argued by the appellant's counsel up- 
on the hjrpothesis of the insolvency of the estate ; but here a- 
gain the position assumed was equally unfortunate, for 
there is no allegation in the record to support it. If it 
was true that the fact of insolvency really existed, then, 
in order to bring the case within the operation of the pro- 
vision of the statute, it was essentially requisite that the 
fact should have been made the subject of direct and posi- 
tive averment in the replication. Upon reference, howev- 
er, to the record, we can discover no intimation of the 
kind. 

With the most anxious desire to accord to the appellant 
any benefit which might have accrued to him from the 
establishment of the position assumed in the argument on 
the second assignment of error, we are reluctantly forced 
to the conviction that neither of the hypotheses upon 
which the argument proceeded, find any sanction in, or sup- 
port from the averments contained in the replication, and 
are therefore constrained to decide that the matters as 
therein pleaded afford no sufficient answer to, or avoidance 
of the defendant's fourth plea. 



TERM AT TALLAHASSEE, 1855. 37 



Sarah A. Lines vs. Henry D. Darden et. al. — Opinion of Court. 

The ruling of the Judge below upon both points is sus- 
tained: therefore the judgment of the Circuit Court will 
stand as affirmed with costs. 



Sabah a. Lines, Appellant, vs. Henry D. Darden, et al.. 

Appellees. 

The court win act upon a petition for a rehearing, where It was presented 
in time, although two of the Judges who sat on the hearing of the cause, 
have since the decree was made, gone out of office. 

Motion for a rehearing made in behalf of appellees. — 
The opinion of the court states the facts in connection 
with the filing of the petition. 

W, 0, M. Davis, for the motion. 

J. T. Archer, contra. 

DOUGLAS, J., delivered the opinion of the Court. 

This case comes before us upon a petition for a rehear- 
ing of a case, decided by this court at its January term in 
the year 1853, at Tallahassee. After the decision was 
made, and before this petition was presented, one of the 
Judges who sat at the hearing of the cause, had left, and 
gone to East Florida. The other two Judges disagreed 
upon the question whether they in the absence of the oth- 
er Judge could act upon the petition in any way, and the 
consequence was that the petition lay over without any 



38 SUPBBMB COTJET. 



Sarah A. Lines vs. Henry D. Darden et al. — Opinion of Court 

formal continuance until the last January term. In the 
meantime two of the Judges who sat on the hearing of the 
cause had gone but of office^ and there were not Judges in 
attendance competent to hear it^ and it again lay over to 
the present term and is now brought before the court, on- 
ly one of the Judges of which sat at the hearing of the 
case. The decree of the court below was reversed and 
the bill was ordered to be dismissed, and the appellees 
seek by the petition to open the case for rehearing. Un- 
der these peculiar circumstances it is objected by the ap- 
pellant that the court as now constituted, cannot with pro- 
priety hear the petition; that a rehearing can only be 
granted by the same Judges who pronounced the decree, 
and there is certainly much force in this objection, yet as 
the parties, had we declined to entertain the petition, would 
have been deprived of the benefit of a legal right without 
any fault on their part, we have deemed it proper to act in 
this matter, and in order that the Judges who did not hear 
the argument of the cause in this court might be able to do 
so understandingly we have gone beyond the rule which pro- 
vides that "the court will consider the petition (for a re- 
hearing) without argument," and received the printed 
brief of the solicitor for the petitioners, which, as well as 
the petition and the decree sought to be opened, have been 
read with great care and attention, and many of the au- 
thorities cited in the brief have been carefully examined, 
while we have not looked into the brief on the other side, 
although it is printed in the report of the case, and after 
the most mature consideration we are constrained to say 
that the decree appears to us to be correct, and that the 
prayer of the petition should be denied. But while we 
feel ourselves compelled to adopt this course, we may be 



TERM AT TALLAHASSEE, 1855. 39 

J. L. Oroner vs. the State of Florida. — Statement of Case. 

permitted to indulge the hope, that the appellant will not 
withhold from the appellees the loan of the property which 
she offered to make them before the institution of this suit, 
and which they then, we think, mistakingly refused to re- 
ceive, and indeed, that she will extend them further aid, if 
their circumstances may require it. Her duty as a mother 
we have no hesitation in saying, does, under the peculiar 
state of the matter require this at her hands. 
Let the petition be dismissed. 



Jacob L. Gboner, Appellant, vs. the State of Florida, 

Appellee. 

l.In an Indictment for gamlng.lt U unnecessary to state the name of the game 

played or bet upon. 
2. An allegation that It was at "a certain game of cards" Is sufficient. 
8. The name of the person with whom the bet was made must be stated, or 

It must be alleged that such person was to the Jurors unknown. 

4. The common law declares that an Indictment for an offence against the 
8tatute,must with certainty and precision charge the defendant to have com- 
mitted or omittedfthe acts under the clrcumstances^and with the Intent men- 
tioned in the statute. 

5. The place was sufficiently stated,by saying (after stating the venue) in the 
County of Leon, and at a certain game of cards. 

The appellant was indicted and convicted for playing at 
a certain game at cards. The indictment alleged that Ja- 



40 SUPBEME COUET. 



J. L. Groner vs. the State of Florida. — Opinion of Court. 

cob L. Groner unlawfully, &c., "did play and bet at a cer- 
tain gaming table, then and there being, at a certain game 
at cards for the purpose of winning or losing money, a- 
gainst the form of the statute,'' &c. 

A motion was made in arrest of judgment on the ground 
that the first count in the indictment on which alone the 
defendant was convicted, does not state the place, the name 
of the game, the name of the person with or against whom 
the defendant played, or give any excuse for not giving 
such name. The motion was overruled and defendant ap- 
pealed. 

J. T. Archer & A. L. Woodward for Appellant. 

M. D. Papy, Attorney-General, for the State. 

DOUGLAS, J., delivered the opinion of the court. 

The appellant was indicted and convicted for playing at 
a certain gaming table at a certain game of cards. A mo- 
tion was made in arrest of judgment on the following 
grounds, to wit 

Because, the first count in the indictment on which alone 
he was convicted, does not state the place, the name of the 
game, the name of the person with, or against whom the 
defendant played, or gave any excuse for not giving such 
name. This motion was overruled and a judgment entered, 
from which defendant appealed to this court. The case 
was argued mainly upon the last ground taken in arrest of 
judgment, and rightly so, for the first and second were un- 
tenable. The place being we think sufficiently stated, viz: 
"in the County of Leon, at a certain gaming table." The 
name of the game it was unnecessary to state; it is al- 
leged to have been "a certain game of cards." This we 
deem sufficient. In the State vs. Bougher, 3 Blackf., 307, 
and the State vs. Maxwell, 5 Blackf., 230, which were in- 



TERM AT TALLAHASSEE, 1855. 41 



J. la. Oroner t«. the State of Florida. — Opinion of Court 

dictments for gaming, it was so held. It was also objected 
to the indictment in the latter case that the name of the 
person with whom the bet was made is not given. This 
objection the court held was not tenable, because there are 
cases in which the name of the third person cannot be ascer- 
tained, and in any case it is (says that court,) suffi- 
ficient to state that such person was to the jurors unknown ; 
and see Chitty^s Criminal Law, 213 — {and authorities there 
dted.) 

In the case of the State vs. Stackey, 2 Blackf., 289, and 
the State vs. Jackson, 4 Blackf., 49, which were for retail- 
ing spirituous liquors without a license, the court held that 
the indictment must state the name of the person to whom 
the sale was made, or state his name to be unknown. 

In the case of Butler vs. the State, 5 Blackf., 280, it was 
held that ^^an indictment for gaming must state the name 
of the person with whom the defendant played, or allege the 
names to be unknown. In this case, the court cited that of 
Halstead vs. the Commonwealth, 5 Leigh's Virg., Beps., 
724, which was for selling spirituous liquors, in which it 
was decided that the name of a purchaser in such a case 
need not be alleged, and remark that the reason given by 
the court for that opinion is, that the purchaser is not in- 
jured by the offence. We conceive, however, (says the 
Supreme Court of Indiana,) that the third person's name is 
required in such cases, not because he is injured, but be- 
cause his designation is a material part of the description 
of the offence; and that court might with propriety have 
added, that even if the reason given by the Virginia 
court was a sound one as to the purchaser of ardent spir- 
its, it does not apply in a case of gaming, for there the in- 
jury to the person betting was the very evil against which 



42 SUPKEME COUKT. 



J. L. Groner ▼■. the State of Florida. — Opinion of Court. 

the Btatate wbs intended to provide. In the case of Davies 
vs. the State, 7 Ham. Ohio Heps., 204, it was held that 
"an indictment against a person for permitting gambling 
in his house should give the names of the offenders or state 
their names to be unknown, and this case is fully sustained 
by that of Buck vs. the State of Ohio, 1 McCook^s Beps., 
61, which was also an indictment for gaming. In the case 
of Butler vs. the State before cited, the court says, "we 
think it important in such cases, that the indictment should 
if possible, allege the name of the third person, in order 
that the accused may be better apprised of the charge a- 
gainst him. If the name be not known, that circumstance 
should be stated in the indictment as an excuse for omitting 
the name.'' This seems to us a reasonable rule, and we 
believe it generally prevails, although it has been relaxed 
by statute in some of the States, and especially in Alaba- 
ma, as appears by the cases of Holland, et al. vs. the State 
3 Porter, 295, and Coggins vs. the State, 7 Porter, 264, ci- 
ted by the Attorney-General. 

In the first the court says : ^^before the statute it was necessa- 
ry to state in the indictment the particiular game which the 
accused was charged with playing; and if the evidence 
did not show that the particular game had been played, 
there would be no conviction," — a greater degree of strict- 
ness than we require. 

In the last case. Collier, C. J., said, "the first question 
raised was brought directly to the view of the court in the 
case of the State vs. Holland, et al., 3 Porter, 292. There 
the indictment charged the defendant with playing at cards 
and the court determined that it was in conformity with the 
statutes which prescribes the requisites/' Our statute pre- 
scribes no such requisites, but leaves the indictment as at 



TEEM AT TALLAHASSEE, 1855. 43 

J. L. Oroner vs. the State of Florida. — Opinion of Court. 

common law, which declares that it must, for an offence a- 
gainst the statute, with certainty and precision charge the 
defendant to have committed or omitted the acts under the 
circumstances, and with the intent mentioned in the stat- 
ute, and if .any of these ingredients of the offence be o- 
mitted, the defendant may demur, move in arrest of judg- 
ment, or bring a writ of error, and the defect will not be 
aided by verdict. 2 East 333 ; ArchM. cr. Law, 1 Ed., 
page 23. 

The indictment must be certain as to the person against 
whom the offence was committed. Ibid, Ed., 1840, page 
27. Also as the facts and circumstances, and intent con- 
stituting the offence. Ibid., 38. The circumstances must 
be stated with such certainty and precision that the defen- 
dant may be enabled to judge whether they constitute an 
indictment offence or not in order that he may demur or 
plead to the indictment accordingly. Ibid., 39, and that 
there may be no doubt as to the judgment which should 
be given if the defendant should be convicted. Ibid, and 
Bex vs. Home, Cowper, 675; and that he may be enabled 
to plead a conviction or acquittal upon this indictment in 
bar of another prosecution for the same offence. The King 
vs. Mason, 2 Term Reps., 581. The King vs. Manoz, 2 
Strange, 1127. 

The statute of 18 Geo., 2, chap. 34, sec. 8, enacts that, 
"if any person shall win or lose at play or by betting at 
any one time the sum or value of ten pounds, or within the 
space of twenty-four hours the sum or value of twenty 
pounds, such person shall be liable to be indicted,^' &c. 

The form of the indictment under the latter cause of 
that statute as given by Archbald, after the usual com- 
mencement and stating the time and place &c., runs thus: 



^^ SUPREME COURT. 



J. L. Oroner vs, the StBte of Florida. — Opinion of Court 



*1by playing at and with cards, to wit : at a certain game 
of cards called rouge et noir, with one J. N., unlawfully 
did win of the said J. N. at one time and sitting, above the 
sum and value of ten pounds, that is to say," &c. And the 
learned author says, "all that the prosecutor has to prove 
is, that J. S. won of J. N., at one sitting, a sum exceeding 
ten pounds, at the game specified in the indictment." Here 
again it will be observed that the prosecutor is held to great- 
er strictness than we deem necessary; that is, to prove the 
name of the game played. It is true that there is a class 
of cases where less precision is required, even in England, 
such as Barratry, Nuisance, Keeping a House of HI Fame, 
Common Scold, &c., but these are exceptions to the gener- 
al rule. Two cases sonvewhat akin in principle to these, 
were also cited on behalf of appellee, viz: the State vs. 
McCormack 2 Carter^s Ind. Reps. 305, and Dormer vs. the 
State, Ibid, 308. The first was an indictment for keeping 
a gaming house. In these cases the salutary rule, that 
where a subject comprehends multiplicity of matter, and 
a great variety of facts, there, in order to avoid prolixity, 
the law allows general pleading, was applied; but in the 
case of the State vs. Irwin, 5 Blackf ., 343, it was held, that 
an indictment for unlawfully winning of several persons 
(naming them,) and others, a certain quantity of beef, &c., 
was bad for not naming all the persons with whom the bet 
was made, or stating that the names not given were un- 
known; and the case of Ball vs. the State, 7 Blackf., 242, 
which was an indictment for gaming, is to the same 
efEect, It seems, therefore, to be a well settled rule, sus- 
tained both by decided cases and elementary principles, 
that in such cases as the one before us, the name of the 
person with or against whom the defendant played or bet, 
should be stated or alleged to be unknown, unless indeed, 



TERM AT TALLAHASSEE, 1855. 45 

Kilcrease vs. White. — Opinion of Court. 

the rule has been relaxed by statute, which is not the ease 
in this State. It may not be improper for us to add, that 
we have looked into the statutes of Indiana and Ohio, on 
the subject of gaming (the statutes on which most of the 
cases cited are based) and find them substantially the 
same as those of our State on the same subject. Let the 
judgment be reversed and the cause be remanded to the 
court below for further proceedings not inconsistent with 
this opinion. Per Totiam Curiam, 



William E. Kilcrbase,Appellant,V8. Pleasant W.White, 

Appellee. 

1. The endorsee of an over-due promissory note takes it as against tbe maker, 
wltb all the equities arising out of the note transaction Itself.but not subject 
to set off in respect to a debt due from the endorser to the maker of the 
note, arising out of the collateral matters. 

2.This doctrine rests upon the law merchant which forms a part of the common 
law. The statute of set offs does not apply to It. 

Appeal from a judgment in the Circuit Court, for Gads- 
den county. 
John Ershine, for Appellant. 
P. TF. White, for Appellee. 

DOUGLAS, J., delivered the opinion of the court. 
The appellee in this case sued the appellant in the Gads- 



46 SUPREME COUET. 



Kilcrease vg. White. — Opinion of Court. 



den Circuit Court in an action of assumpsit on several 
promissory notes. The third count in his declaration (up- 
on which the question presented for our consideration ari- 
8e8>) is as follows^ viz: ^^and whereas also^ the defendant 
heretofore on the fifth day of November, A. D. 1853, made 
his certain promissory note in writing, and thereby prom- 
ised to pay to the said Mary C. Rogers or bearer the sum 
of five hundred and sixty eight dollars and sixty-five cents, 
one day from the date thereof, (which period had elapsed 
before the commencement of this suit,) with eight per cent, 
interest thereon until paid for value received, and the said 
Mary C. Rogers then tranferred, assigned and delivered 
the same to the plaintiff; whereof the defendant then had 
notice, and then in consideration of the premises, pro- 
mised to pay the amount of said note to the plaintiff ac- 
cording to the tenor and effect thereof." To which count 
the defendant put in a plea of set off in the usual form, of 
certain goods and chattels, &c., &c., alleged to have been 
sold and delivered by the said defendant to the said Mary 
C. Rogers after the making of the said promissory note, 
and before the commencement of this suit, and averring 
that the said promissory note was transferred, assigned 
and delivered to the plaintiff after it had become due and 
payable. To this plea the plaintiff demurred. 1st, Be- 
cause the matters therein pleaded as matters of set off are 
not shown by said plea to be debts or demands against the 
plaintiff, but against a third party not a party to the suit. 
2nd, Because the said plea does not show that the matters 
therein pleaded were a part of, or arose out of the trans- 
action for which the said note was given, but that they 
were shown to be collateral transactions with the payee 
of said note; and the said plea is in other respects insuf- 



TEBM AT TALLAHASSEE, 1856. 47 



Kilcrease vs. White. — Opinion of Coart. 



ficient in law. Wherefore, he prays judgment, &c. The 
defendant joined in demurrer ; the demurrer was sustained^ 
ihe plea held bad, and a judgment was entered for the 
plaintiff from which the defendant appealed to this court, 
and we are now called upon to say whether that judgment 
IB right or not. We promise in the out-set, that the 
question thus presented does not rest upon our statute of 
set off, (which is in substance the same as that of the En- 
glish statute, so far as -regards the set offs of mutual debts) 
but upon the principles of the law merchant; the statute 
does not apply to it. The plea, it will be observed, alleg- 
es that the note was transferred, &c., after it became due 
and payable ; the demurrer admits that fact. 

For the appellant, it is insisted that "the authorities are 
abundant and uniform that where a note is negotiated af- 
ter it is due, its non-payment is a suspicious circumstance,** 
that it comes to the assignnee discredited and dishonored, 
and that the law is he takes it wholly on the credit of his 
assignor, and subject to all demands that existed against 
him at the time of the transfer, and the following author- 
ities are cited in support of this position. 3 T. R., 81 ; 
13 East, 497; 1 Campbell, 383; 5 John., 118; 19 Ibid, 342; 
13 Peters, 66; 14 Ibid, 318—321; 1 Dennis, 583; 6 Hill, 
N. Y., 327; 5 Pick., 312; 1 Hill, S. C, 9, 15; 4 Mass., 370 
— ^most of which we have examined, some of them have 
but a remote bearing upon the question, a few of them sus- 
tain the position assumed; most of them, however, which 
treat directly upon the matter of set off, say merely that the 
assignee of a note transferred after it has become due, 
takes it subject to all the equities that existed between the 
original parties to it, without entering into any explana- 
tion as to what those equities are. This loose manner of 



48 STJPBEME COURT. 



Kilcrease vs. White. — Opinion of Court. 

Btating the doctrine respecting the rights of an assignee of 
an overdue note or bill, has doubtless led to much of the 
misapprehension which seems to have prevailed on the sub- 
ject. 

On a review of the authorities, we think the learned 
counsel for the appellant has laid down the doctrine too 
broadly, that he is mistaken when he says the authorities 
are uniform in support of his position, and that the rule is 
more correctly stated (according to numerous late authori- 
ties at least,) by the appellee, viz: that the assignee of an 
overdue promissory note takes it subject to those equities, 
and those only which affect the note itself, but not subject 
to a set off in respect to a debt due from the payee to the 
maker of the note, arising out of collateral matters. Judge 
Story in his work on promissory notes, sec. 190, page 200, 
says : ^^if the transfer is after the maturity of the note, 
the holder takes it as a dishonored note, and is affected by 
all the equities between the original parties, whether h6 
has any notice thereof or not. But when we speak (he 
says) of equities between the parties, it is not to be under- 
stood by this expression that all sorts of equities existing 
between the parties from other independent transactions 
between them are intended, but only such equities as at- 
tach to the particular note and as between those parties, 
would be available to control, qualify or extinguish any 
rights arising thereon, citing Bailey on Bills, chap. 5, sec 
3, page 161—162, 5 Ed., 1830, (and see Ed., 1836, pagl9 
133,) Burroughs vs. Moss, 10 Bam. and Cresw., 663; Story 
on Bills, sec. 87, n. 3, and Whitehead vs. Walker, 10 Mees. 
and Welsh., 696; 10 Bam. and Cresw., we have not been 
able to obtain, but the other authorities cited are fully in 
point. In 10 Meeson and Welsby the court say: "the 



TERM AT TALLAHASSEE, 1855. 49 



KllcKase tb. White. — Opinion of Court. 

case of Burronghs and Moss is good law. That case de- 
cides that the endorsee of an over due promissory note 
takes it as against the maker, with all the equities arising 
out of the note transaction itself, hut not subject to a set- 
off in respect of a debt due fromi the endorser to the ma- 
ker of the note arising out of collateral matters." In 
Georgia the same doctrine prevails, see Tinsley vs. Beall, 
2 Kelly 136. The same doctrine is also held in the case of 
Chandler vs. Drew, 6 New Hamp. Reps., 469. In this case 
the court say: "It is true that there may be cases of hard- 
ship upon the defendant without a set-off, but that hap- 
pens under all general rules. They occur as rarely under 
the rule which excludes this set-off as under any other rule ; 
page 476. If the maker of a note perform services for, or 
deliver goods to the payee, he has only to see that they are 
applied to the payment of the note, and he can never suf- 
fer; if he suffer by having his own set-off rejected, it is 
through his own neglect. In Hughes vs. Large, 2 Barr 
Penn. B., 103, it was held that the endorsee of an over due 
note takes it subject to the equities arising out of the note 
itself and not to set-off generally, and the court, page 104, 
say, as the law merchant is a part of the jus gentium we 
receive foreign precedents as controlling authorities when 
they would not overturn our own decisions; and it was 
distinctly ruled in Burroughs vs. Moss., 10 B. & C, 558, and 
Whitehead vs. Walker, 10 Mees. and Welsh., 696, that the 
endorsee of an over due note takes it liable to equities ari- 
sing out of the transaction itself, but not to set-off. "It is 
somewhat remarkable (say that court,) that this distinc- 
tion between equities and cross demands did not occur in 
England before 1830, though it had been taken three years 
before in Massachusetts and New York. It has been rec- 
5 



60 SUPEEME COUBT. 



Kllcrease vs. White. — Opinion of Court. 

ognized by Mr. Justice Stoiy, Law Prom. Notes, sec, 178; 
'4t is a settled principle of commercial law; and though I 
(Chief Justice Gibbons,) would have decided the point at 
nisi prius, as it was decided in the court below, I concur 
with my brother that it is proper we conform to what is to 
be the universal rule." Page 105. 

In the case of the endorsement of a note under circum- 
stances to leave the endorsee in privity with the endorser, 
it is now settled in England (says the annotator to 1 Hare's 
and Wallace's Leading cases, page 194,) and in most cases 
in this country, that the endorsee is affected only by those 
defences, that are connected with the note itself, and not 
by antagonist claims, or sets-ofE that are wholly indepen- 
dent of the note, citing Burroughs vs. Moss, 10 Bam. and 
Cresw., 558; Whitehead vs. Walker, 10 Mees. and Welsh., 
696; Hughs vs. Large, 2 Barr., 103; Cumberland Bank 
vs. Haun., 3 Harrison, 223; Chandler vs. Drew, 6 New- 
Hampshire, 469 ; Robertson vs. Breedlone, 7 Porter, 541 ; 
Tuscumbia, &c., R. R. Co., et al. vs. Rhodes, 8 Alabama, 
206 — 224 ; Robinson vs. Lymon, 10 Connecticut, 31 ; Stead- 
man vs. Jilson, Ibid, 56 ; and Britton vs. Bishop, et al., Ver- 
mont, 70, which fully sustain the position they are adduced 
to support; to which may be added the following cases 
which are also in point ; Hudson vs. Kline, 9 Gratten, 380 ; 
Schemerhom vs. Anderson, 2 Barbour's S. C. A., 584; 
Green vs. Darling, 5 Mason, 201 ; and Hunkins vs. Sloup, 
2 Carter, 343; this last case was decided upon the author- 
ity of Burroughs vs. Moss, which appears to be a leading 
one. 

^^The rule (says Chitty in his late work on Bills of Ex- 
change, Amer. Ed., 1839, page 245, vide 246. Ed., 1849, 
page 220,) that a party taking an overdue bill, takes it 



TERM AT TALLAHASSEE, 1855. 51 



KUcreftte ts. White. — Opinion of Court 

subject to the equities to which the party delivering the bill 
to him was subject, is qvalified and restrained to all equi- 
ties arising out of the note or bill transaction itself, and is 
not subject to a set-oflE of a debt due from the endorsee to 
the maker of the note arising out of collateral matters." 

And at notfe A, on the same page, Burroughs vs. Moss, is 
cited thus, viz "the judgment of the court was delivered 
by Bailey, J., as follows, viz:'' "This was an action on a 
prontissory note made by defendant, payable to one Feam 
and by him endorsed to the plaintiff after it became due. — 
For the defendant, it was insisted that he had a right to set- 
off against the plaintiff's claim or debt due to him from 
Feam, who held the note at the time when it became due; 
on the other hand, it was contended that this right of set- 
off which rested on the statute of set-off, did not apply. — 
The impression of my mind was, that the defendant was 
entitled to the set-off, but on discussion of the matter with 
my Lord Tenterden and my learned brothers, I agree with 
them in thinking that the endorsee of an over due bill or 
note, is liable to such equities only as attach on the bill or 
note itself, and not to claims arising out of collateral mat- 
ters; the consequence is that the rule for reducing the dam- 
ages must be discharged. Burroughs vs. Moss, S. C, 8, Law, 
J., 287." 

Now although we are ready to admit that there are 
8om/& cases the other way, that in a few of the statutes of 
the Union the courts may yet adhere to the doctrine which 
is so generally exploded that in one of them the statute 
obliges them to do so, yet the weight of the authorities we 
have cited to sustain our position seems to us irresistible, 
and leaves to us no alternative but to apply to the question 



52 SUPREME COURT. 

Croom V8. Noll and Wife. — Opinion of Court, 

the doctrine of stare decisis, and consequently to sustain 
the judgment of the court below. 

The view that we have taken of the second question 
presented for our consideration, renders it unnecessary to 
say anything in regard to the first. 

The judgment of the Circuit Court will be afl&rmed with 
costs. 

Per iotiam curiam. 



William W. Cboom, Appellant, vs. John Noll and Wife, 

Appellees. 

1. An agent is a competent witness to prove his own authority if It be by parol 

2. He stands In the character of a disinterested and Indifferent witness be- 
tween the parties In all ordinary cases. 

3. If the plaintiff recovers on his agency when In fact he was not agent,but had 
assumed an agency which could only be established by his own evidence, be 
would be answerable to the defendant ; and if he assumed the character of 
agent without being authorized, and in such character imposed on the plain- 
tiff he would be responsible to him. 

4. Agents are witnesses, and in many cases they are so em neceaaitate, even 
where they may be interested. 

5.The exception being founded upon consideration of public necessity and con- 
venience, it cannot be extended to cases where the witness is called to testify, 
to matters out of the usual and ordinary course of business. 

6. Where the agent has direct interest in the event of a suit relating to a con- 



TERM AT TALLAHASSEE, 1855. 53 

Croom vs. Noll and Wife. — Opinion of Court. 

tract made by him Independently of his acts as agent, he is not a competent 
witness for his principal in regard to such contract. 

7. Notwithstanding prima facie appearance of an interest on the part of the 
witness on the face of the record, yet his evidence ought not to be rejected 
without examining him on his voir dire as to his 9ituaiion, or adducing oth- 
er proof to show that fact. 

8. As a general rule the vendor of goods having possession and selling them as 
his own^is held bound in law to warrant the title, and therefore.he is gener- 
ally not a competent witness for the vendee in support of the title. 

9. But it does not follow that the vendor of goods is necessarily interested or 
bound to warrant the title. He may not have been in the possession of the 
goods when he sold them, or he mtiy haye »o\d them without recourse ; or 
he may have a release from the purchaser. 

lO.The disqualifying interest must be some certain,legal and immediate interest 
however minute, either in the event of the suit or in the record, as an in- 
strument of evidence, in support of his own claims in a subsequent action. 

11 . The mode of proving the interest of a toitness, is either by his own exam- 
ination or by evidence aliunde. 

12. When the objection to the competency of the witness arises f lom his own 
emaminaiian, he may be further interrogated to facts tending to remove the 
objection, though the testimony might on other grounds be inadmissible. 

Appeal from a judgment of the Circuit Court for Gads- 
den county. 

For a full statement of the facts presented by the rec- 
ord, reference is made to the opinion of the court. 

P. W. White, for Appellant. 

Boiling Baker, for Appellees. 

DOUGLAS, J., delivered the opinion of the court. 

The appellant instituted an action of assumpsit in Gads- 
den Circuit Court against the appellees, on a promissory 
note. There is but one count in his declaration, which is 
as follows, to wit: William W. Croom complains of John 
Noll and his wife, Elizabeth Noll, who were summoned to 



54 SUPREME COURT. 



Croom VB. Noll and Wife. — Opinion of Court. 

answer him by a plea of trespass on the ease upon prom- 
ises. 

For that whereas the said Elizabeth Noll, while she 
was sole and unmarried, to wit: on the fifteenth day of 
December, in the year of our Lord, one thousand eight 
hundred and forty-eight, at Tallahassee, to wit: in the 
county of Gadsden aforesaid, made her certain 
promissory note in writing, bearing date a certain day and 
year therein mentioned, to wit: the day atid year afore- 
said, and thereby, then and there promised one day after the 
date thereof, to pay Coe, Anderson & Co., or order, the 
sum of one hundred and eleven dollars and seventy cents, 
for value received, and then and there, delivered the said 
promissory note to the said Coe, Anderson & Co., who by 
the endorsement thereof transferred the same to the said 
plaintiff, by means whereof the said Elizabeth Noll, while 
she was sole and unmarried, then and there became liable 
to pay to the said plaintiff the said sum of money, in the 
said promissory note specified according to the tenor and 
effect of the same, and being so liable, &c., going on and 
concluding in the usual form. 

To this declaration the defendants put in three pleas. — 
First, The general issue. Second, That the said Eliza- 
beth did not sign or execute, make or deliver any such note 
as that described in plaintiffs declaration. Third, That 
no consideration was ever given for the said note. The 
last two pleas concluded with a verification and were put 
in under oath, which under the provisions of our statute 
cast the burthen of proof upon the plaintiff; a jury was 
empanelled and sworn, whereupon the plaintiff offered 
the above described note in evidence and to prove the ex- 
ecution consideration and assignment of the said note;" also 



TEBM AT TALLAHASSEE, 1855. 55 

Croom vs. Noll and Wife. — Opinion of Coort. 

offered in evidence the deposition of the said Albert Best- 
wick, who testified, — First, That he did not know John 
Noll, but did know Elizabeth Batringriter in 1848. Second, 
That the said note was made by Elizabeth Batringriter in 
his presence, on the day of its date. She made her mark 
to it in his presence ; that it was delivered to him as agent 
for Messrs. Coe, Anderson & Co.; that the consideration 
of this note was goods, wares and merchandise, sold by 
him to her. The account for said goods was assigned by 
him to said Coe, Anderson & Co., with other accounts and 
notes in payment of debts due to them by him ; that he 
was acting as their agent for certain purposes; the ac- 
count of Elizabeth Batringriter and other accounts and 
notes which he had assigned, as above stated, to Coe, An- 
derson & Co., were left by them in his hands for collec- 
tion and settlement, and that he did go on to collect and set- 
tle them as their agent, and as such agent he took the note 
above referred to, to close the open account that as agent 
for said Coe, Anderson & Co.,. he sold that note to A. K. 
Allison on the 27th March, 1849, and delivered it to him. 

The defendants objecting to the testimony of Albert 
Bestwick as a witness in this case on the ground of inter- 
est in the cause of action, and ultimate liability to the 
holders, and for incompetency generally to testify in the 
case, filed sundry cross interrogatories, and the said wit- 
ness upon his cross examination testified that Elizabeth 
Batingriter for several years prior to the date of said 
note, had an open account at his store in Tallahassee; it 
varied in amounts at different times, sometimes she owed 
him two or three hundred dollars. The amount she owed 
him when the note was given, was the amoimt specified In 
the note; that he had previously transferred the accoimts 



X 



56 SUPEEME COUET. 



Croom T8. Noll and Wife. — Opinion of Conrt. 

to Coe^ Anderson & Co., so that she owed them and not 
him, and was indebted to them for that amount and upon 
that consideration; that he was indebted to Coe, Ander- 
son & Co., at that time and previously, and did transfer to 
said firm, notes and accounts due to him; that he never 
had any written authority or power to act for Coe, Ander- 
son & Co.; that his authority was verbal only, and received 
from John Geo. Anderson of that firm. To which deposi- 
tion the defendants' counsel objected, because of the incom- 
petency of the witness on account of his interest as dis- 
closed by the deposition and by his endorsement of the 
note, which objection was sustained by the court. The 
plaintiff then offered to examine A. K. Allison as a wit- 
ness, to which the defendants objected because of his inter- 
est as guarantor, which objection was also sustained by 
the court, and the witness was not examined. 

The defendant moved to exclude the evidence of Best- 
wick unless the plaintiff should first prove by evidence 
aliunde the deposition of Bestwick, that Bestwick was the 
agent of Coe, Anderson & Co., the payees of the note. — 
The court overruled the defendant's motion and ruled that 
the witness was competent to prove his own agency, un- 
less it was shown that witness was interested in establish- 
ing the fact of agency; to all which rulings of the court 
the defendant excepted, and prayed the court to sign his 
bill of exceptions, which was accordingly done. 

The jury returned a verdict for the defendants, where- 
fore judgment was rendered, and whereupon the plaintiff 
appealed to this court, and the question now presented for 
our consideration is, whether these several rulings were 
correct or not. 

The first question presented is, whether Bestwick is a 



TEEM AT TALLAHASSEE, 1855. 57 

Croom vs. Noll and Wife. — Opinion of Court. 

competent witness to prove his own authority. It will be 
observed by reference to his deposition that he says, that 
he never had any written power of attorney to act for 
Coe, Anderson & Co., that his authority was verbal only ; 
and Professor Greenleaf in his able treatise on the Law of 
Evidence, vol. 1, page 564, 3 Ed., 1846, lays down the rule 
expressly, that *^an agent is a competent witness to prove 
his own authority if it be by parole." In Rice vs. Gore 
22 Pickering, 160, Dewey, J., delivering the opinion of the 
court, said, "the general principle that the testimony of 
agents and servants may be given without a release, is a 
familiar one, and is not controverted by the counsel for the 
defendant; but he denies the competency of one pro- 
fessing to have acted as agent, to establish the fact of his 
authority by his own testimony. "The principle (he says,) 
as found in the elementary books, as well as in the report- 
ed cases, seems to be broad enough to support tlie position 
that in an action against the principal, the authority of the 
agent to act may be proved by the agent himself, citing 
Paley on Agency, 212, and 1 Philips on Evidence, 79. In 
this case suit had been brought on a promissory note which 
was as follows, viz : 

Boston, October 20, 1836. 
"For value received we jointly and severally promise to 
pay Samuel Rice, him or his order, the sum of one hun- 
dred dollars, borrowed money, on demand with interest. — 
Patten and Johnson for Ira Gore." Tlie defendant denied 
the authority of Patten and Johnson to borrow money or 
execute notes as his agent. The plaintiff offered in evi- 
dence the deposition of Patten, for the purpose of proving 
that he was authorized to act for the defendant. The de- 
fendant objected to the admission of the deposition on the 



68 SUPREME COUET. 



Groom ts. Noll and wife. — Opinion of Court 

ground that the deponent was interested, but the objec- 
tion was overruled and the question reserved for the con- 
sideration of the court. The jury found a verdict for the 
plaintiflE . If the deposition was admissible, the verdict 
was to be set aside, and a new trial granted, otherwise 
judgment was to be entered on the verdict, and after a 
full argument before the Supreme Judicial Court, judgment 
was entered on the verdict. We have cited this the more 
at length because it was decided by a very able court, 
and seems to be much in point. Paley and Philips also 
lay down the rule as it is stated by Greenleaf. Kirkpat- 
rick vs. Cisna, 3 Bibb, 244, is also in point. This was 
an action of detinue for the recovery of a negro. The 
plaintiff derived his right under the sale of a supposed a- 
gent of an administratrix. To prove the agency he intro- 
duced the agent himself who deposed to his authority to 
sell, by a letter from the administratrix, which had been 
accidentally lost or mislaid, and that he sold to the plain- 
tiflE, then in possession of said negro, for the purpose of 
paying a debt against the estate of the intestate. This ev- 
idence was on motion of the defendant excluded from the 
jury as incompetent. The case was taken up to the Court 
of Appeals, and for this cause the judgment was reversed 
with costs, and the cause remanded for a new trial. The 
court said, "the principle that an agent is a competent 
witness is incontestably settled. He stands in the charac- 
ter of a disinterested and indifferent witness between the 
parties. The verdict either in favor of one or against the 
other, leaves him in the same situation, as responsible to 
the other. If the plaintiff recovers on his agency when in 
fact he was not agent, but had assumed an agency which 
could only be established by his own evidence, he would 



TEBM AT TALLAHASSEE, 1855. 69 

Croom Ts. Noll and Wife. — Opinion of Court. 

be answerable to the defendant; and if he assumed the 
character of agent without being authorized and in such 
character imposed on the plaintiff, he would be responsi- 
ble to him, so that as between the parties he is indifferent, 
and is therefore competent.'' See Peake's Evidence, 178. 
Here then we have the general rule upon which the com- 
petency of the agent to prove his own authority as agent 
is placed, and it seems to be in accordance with general 
principles. 

** As a general rule, (say the Supreme Court of Indiana, 
8 Blackf., 49,) agents are witnesses, and in many cases 
they are so ' ex necessitate/ even when they may be inter- 
ested." In Fisher vs. Willard, 13 Mass. B., 380, Lincoln 
for defendant argued that ^' Bichards was an incompetent 
witness — ^that he was in fact the party in interest." The 
court remark upon this, that "no rule of evidence is better 
established than the sufficiency of the objection of interest 
to the competency of a witness; but the exception from 
the rule, that agents and factors are admitted from the ne- 
cessity of the thing, is as well known as the rule itself." — 
And see also, Phillips and others vs. Bridge, 11 Mass. B., 
246; and Stringfellow vs. Hobson and Marriat, 1 Ala. B., 
N. Series, 573 to 575. 

"The exception being thus founded upon considerations 
of public necessity and convenience for the sake of trade, 
and the common usage of business, it is manifest that it 
cannot be extended to cases where the witness is called to 
testify to matters out of the usual and ordinary course of 
business." 1 Greenleaf Evidence, sec. 417, page 564. 

So "where the agent has a direct interest in the event 
of a suit relating to a contract made by him independently 
of his acts as agent, he is not a competent witness for his 



60 SUPREME COURT. 



Croom T8. Noll and wife. — Opinion of Court. 

principal in regard to such contract." Steam Navigation 
Co. vs. Dandridge, 8 Gill, and John., 248. 

But even if it appears prima facia that Bestwick was 
interested, (and certainly nothing more appears here,) his 
testimony should not have been rejected, for it has been 
holden that notwithstanding the prima facie appearance of 
an interest on the part of the witness on the face of the 
record, yet his evidence ought not to be rejected without 
examining him on his voir dire as to his situation. Bun- 
ter vs. Warre, 1 Bam. & Cresw., 689. Wandless, assignee, 
&c. vs. Cawthome, 1 Mood & Malkin, 320. 

As a general rule the vendor of goods having possession 
and selling them as his own, is held bound in law to war- 
rant the title, and therefore he is generally not competent 
as a witness, for the vendee, in support of the title ; 
1 Greenleaf Ev., page 546, sec. 398, Ed. 1846, and au- 
thorities there cited. 2 Kent Com., page 498, and au- 
thorities there referred to. 

The case of Bunter vs. Warre, (B. & C, 689, above 
cited,) was an action of replevin; avowry alleging a joint 
holding by the plaijitif! and T. B., who was no party to the 
record ; the testimony of T. B., having been rejected with- 
out an examination of the voir dire to enable him to ex- 
plain his situation, a new trial was granted. In Wand- 
less vs. Cawthome, 1 M. & M., 321, also above cited, it 
was held that in an action by the assignee of a Bank- 
rupt, the competency of the Bankrupt could be restored 
by the examination of the Bankrupt on the voir dire with- 
out producing the release and certificate. 

But it does not follow that the vendor of goods is neces- 
sarily interested, or bound to warrant the title; he may 
not have been in possession of the goods when he sold 



TEBM AT TALLAHASSEE, 1855. 61 



Croom Ts. Noll and Wife. — Opinion of Court 

them, or the purchaser may have run the hazard, if he was, 
by buying them without recourse. In either of these cases 
he would not be bound to warrant tlie title or have any in- 
terest on account of the sale. Again, Bestwick may have 
a release from Coe, Anderson & Co., from all liability in 
regard to the matter. 

The interest to disqualify must be some legal, certain 
and immediate interest, however minute, either in the e- 
vent of the cause itself, or in the record as an instrument 
of evidence, in support of his own claims, in a subsequent 
action. 1 Greenleaf's Ev., page 533, sec. 386, Ed. 
1846, and authorities there cited. 

The mode of proving the interest of a witness is either 
by his own examination, or by evidence aliunde. Ibid., 
page 513, sec. 423. 

When the objection to the competency of the witness a- 
rises from his own examination, he may be further interro- 
gated to facts tending to remove the objection, though the 
testimony might on other grounds be inadmissible. Ibid, 
page 572, sec. 422. 

Bestwick, the witness in this case, was not examined to 
enable him to explain his situation touching his alleged in- 
terest in regard to the account of Elizabeth Batingriter, 
(now Elizabeth Noll,) assigned by him (Bestwick) to Coe, 
Anderson & Co., which was the consideration of the note 
on which this suit is founded, nor was any other testimony 
taken, to show whether he had a legal, certain and immedi- 
ate interest respecting the said account or not, and as by 
the record such an interest does not appear, but at most on- 
ly a prima facie interest, therefore the judgment of the 
court below must be reversed and the cause remanded to 
that court for a new trial, that an opportunity may be af- 



62 SUPREME COURT. 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

forded for such examination or for the reception of other 
proof as to his situation in regard to said account^ for if he 
is not interested in sustaining that account^ he is^ for aught 
that appears^ a competent witness in regard to the whole 
matter. 

Some other questions are presented by the record, but 
not in such a shape that we can with propriety consider 
them; but if we could, we doubt if they would change 
the result. 

Let the judgment be reversed and the cause remanded 
to the court from whence it came, for further proceedings 
in accordance with this opinion. 

[Note. — In this case DuPont, J., who was of counsel 
for plaintiflE in the court below, did not sit at the hearing 
in this court. Hon. Wm. A. Forward, Judge of the East- 
em Circuit, took his place on the Bench.] 



Edward C. Bellamy, Appellant, vs. the Sheriff of Jack- 
son County, Ex Officio Administrator of Samuel C.Bel- 
lamy, Deceased, Appellee. 

1. A debtor In Insolvent circumstance may, before lien attaches, lawfully pre- 
fer one creditor, or set of creditors to another. 

2. A sale, assignment or other conveyance, is not necessarily fraudulent be- 
cause it may operate to the prejudice of a particular creditor. 



TEBM AT TALLAHASSEE, 1855. 63 



Bdward C. Bellamy m, Samuel C. Bellamy's Adm'r. — Statement of Case. 



S. A deed made witli the purpose or Intent to hinder, delay or defraud credi- 
tors. Is binding as between the parties ; but as to creditors It Is deemed to 
hare no lawful existence. 

4. In equity, the general maxim of pari delicto, Ac., does not always prerall ; 
circumstances of the particular case, often form conceptions, and where It Is 
necessary, relief will be granted. 

5. In assignment to a trustee who accepts the trust, and enters upon the du- 
ties thereof for the use of certain creditors, the legal estate passes and rests 
in the trustee, and chancery will compel the execution of the trust for the 
benefit of the said creditors, though they be not at the time assenting, and 
parties to the conveyance. 

6. In a deed of trust,whereln after specifying certain sIstcs by name, and also 
enumerating other personal property, and then adding a general clause, viz : 

"and aU hi§ pertonal elfectt of every name, nature and detoription." Ac. 

Held to embrace things efu*dem generic, with those which had been men- 
tlcmed before, and to convey for the purpose of the trust,any other slaves, 
which then belonged to the grantor and not before specified by name and es- 
pecially where the res gettae favors that construction, but not to pass real 
estate, or equity of redemption in land. 

7. It is essential to the conveyance of real estate that there be some descrip- 
tion of the land. 

8. In a deed of assignment to a trustee conveying "all the future cotton crept 
made on said plantation/' an estate is conveyed commensurate with the 
trust ; and although It does not pass the equity of redemption in said land, 
yet it is fiduciary licensclease or conveyance thereof,and of all that was ne- 
cessary to the management of the plantation and appropriation of said crops 

for the objects and purposes of said trust. 

0. A deed of assignment is to be construed by the rea geatae,tLnd thus courts 
are permitted to look to the circumstances and motives which led to its exe- 
cution, and the objects to be accomplished. 

10. In all cases where a purchase has been made by a trustee, on his own ac- 
count, of the estate of his cettui que trust, although sold at public auction 
It is in the option of the cestui que trust to set aside the sale, whether bona 
fide made or not, and particularly where there are equitable features in the 
transaction. 

11. A trustee Is bound not to do anything which can place him In a position In- 
consistent with the interests of the trust, or which have a tendency to inter- 
fere with his duty in discharging It 



66 SUPBEME COUBT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

tain contracts and obligations^ and desirous of affording to 
such persons such guaranty as he may against any risk or 
liability which they have thus voluntarily and disinterest- 
edly incurred; and whereas, his brother, Edward Bellamy 
and others hereinafter specified, and the said Samuel G. 
Bellamy, being anxious to assure to him just claims in 
advance; this indenture therefore witnesseth, that the said 
Samuel C. Bellamy, in consideration of the premises as 
well as the sum of one dollar received, hath granted, bar- 
gained, sold, aliened, conveyed and confirmed, and by these 
presents doth herein grant, bargain, sell, convey, assign, 
transfer and deliver unto the said Edward Bellamy, all the 
property and estate hereinafter described and specified, to 
wit: the following slaves, viz: Tony, Sally, Flora, Esop, 
and Cinda; also his stock of horses, mules, cattle and hogs, 
of which he is now in possession, and which cannot be 
more particularly described, together with his household 
and kitchen furniture, and all his personal effects of every 
name, nature and description, com, wagons, carts, &c. ; 
also his crop of cotton of the present year, whether now 
in bales, in the gin house or in the field; also all his right 
and interest in and to the contract for constructing the 
bridge across the Chipola river near Marianna. To have 
and to hold all and singular, the property above described, 
and every particle thereof, to the said Edward Bellamy, 
his heirs and assigns forever. 

" Nevertheless, upon this especial trust and confidence 
herein and hereby created and declared, to wit: that the 
aforesaid Edward Bellamy shall have and hold the afore- 
said property upon the following stated trust and for these 
interests, objects and purposes, hereinafter set forth, that is 
to say, that the said Samuel C. Bellamy shall continue and 



TEEM AT TALLAHASSEE, 1855. (iT 



Edward C. Bellamy vs. Samnel C. Bellamy's Adm*r. — StatemeDt of Case. 



lemain in possession of all this property and effects above 
Bpecified, and shall proceed with his contract in relation to 
itue bridge, that the said Edward C. Bellamy shall reoei?e 
all the rents, profits, hire and income, derived from the 
same to wit: the services and labor of said personal prop- 
erty, and the funds arising from said bridge contract, after 
pajring necessary expenses, the said income, hire and funds 
to be held and applied by said Edward Bellamy for the 
following purposes, to wit: to reimburse, secure and in- 
demnify the said Edward Bellamy in and upon his liabili- 
ties as endorser or security for and with said Samuel G. 
Bellamy, to the Life and Trust Bank of Florida, amount 
about twenty-seven hundred dollars; also for surety-ship 
of said Edward Bellamy on note to Miles Everett, of 
Washington county, Florida, one thousand dollars; for the 
indemnity of Doctor Ethelred Phillips, surety on note of 
about two hundred dollars; Doctor Bradford, endorser on 
a bill of exchange of seven hundred dollars; Mr. William 
Bellamy, of North Carolina, surety on a contract of seven 
or eight hundred dollars; Isaac Widgeon, judgment of six 
hundred dollars; Alexander Croom, on a draft now in suit 
above five hundred dollars; lastly, for the payment of all 
just claims not now sued, and more particular for the 
protection and indemnity of the sureties of said Samuel C. 
Bellamy on his bond for the bridge contract, and finally 
and especially, for the paying with all due promptness, the 
interest on the bank stock of said Samuel C. Bellamy, ac- 
cruing to the Union Bank of Florida, and generally for 
the indemnity of all sureties of said Samuel C. Bellamy, 
who, reposing in his integrity, have loaned him their name 
considering them as the others, as preferred creditors, for 
whose security this deed is made. It is hereby provided. 



68 SUPEEME COUBT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

that Baid Samuel C. Bellamy shall at any future time exe- 
cute any other instrument necessary to effectuate the in- 
tents and purposes of this indenture, upon being thereto 
duly advised. And it is herein especially provided, that 
when the purposes and objects of this indenture shall have 
been accomplished and attained by the payment or satis- 
faction of the aforesaid debts, claims and liabilities, either 
from the income of the said property or from any other 
source, then and in that event, whenever it shall have been 
in any mode realized and consummated, the said Edward 
Bellamy shall upon the request of said Samuel C. Bella- 
my, release, reconvey and deliver all the property hereby 
conveyed, and all his interest and right therein, either in 
equity or at law, hereby vested. 

"And it is herein further provided, that all the future 
cotton crops made on said plantation sliall be appropriated 
by said Edward Bellamy, trustee, to the purposes and ob- 
jects above set forth and declared, especially the interest 
on the Union Bank stock, excepting part of said cotton 
crops as well as com, also hereby conveyed, as shall be re- 
quisite for necessary expenditures and subsistence. 

"And it is especially in conclusion provided, that one half 
of the net proceeds of the bridge contract, after all neces- 
sary disbursements therein, shall be applied by said Ed- 
ward Bellamy to the payment of a claim due estate of 
Wiliiam Sullivan, late of this county, deceased. 

"And it is hereby especially provided, that a debt or claim 
or accommodation debt due Union Bank of Florida, and a 
debt due Mrs. Oveton, of Pensacola, are excluded from this 
trust, and the said Edward Bellamy, on his part, accepts 
this appointment of trustee conferred by this deed, assumes 
the office and covenant for himself , his heirs and assigns. 



TEBM AT TALLAHASSEE, 1855. 69 

Edward C. BellMny vs. Bamnel C. Bellamy's Adm'r. — Statement of Caae. 

to observe the provisions of this indenture and perform 
the duties it creates^ and preserve and maintain the con- 
fidence it reposes, according to its true meaning, interpre- 
tation, intents and designs; and said Edward Bellamy 
hereby acknowledges delivery of the property herein con- 
veyed. In testimony of all and singular whereof, the par- 
ties have executed this indenture by signing, sealing and de- 
livering the same, this nineteenth day of November, A. D., 
1844, second page, eleveuth line from the top, words "one 
thousand dollars,^* interlined before signing." 

\ S. C. Bellamy, [L. S.]. 

^^^°' I E. C. Bellamy, [L. S.] 

Executed in presence of 

A. L. Woodward. 

Frederick E. Pittman, Clerk C. C, J. C. 

He further charges that said Edward C. Bellamy, as 
such trustee, possessed himself of all the property men- 
tioned and specified in the said deed of trust, and also of 
the crops of cotton, com and other produce grown and 
raised on the said plantation in the years 1844 and 1845, 
and still holds the same, unaccounted for; and he also 
possessed himself of the crops of cotton and other produce 
grown and raised on. the plantation, and with the slaves of 
said complainant, in the years 1846 and 1847, and was at 
the time of filing said bill, in possession and planting a 
crop for 1848, and that he had, also, on divers occasions, 
employed a portion of your orator's slaves in labor for him- 
self, the said Edward Bellamy, and others, off the said 
plantation, of all which he had rendered no account to the 
said complainant. 

He further charges, that notwithstanding he became so 



70 SUPBEME COUET. 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

possessed^ the said Edward C. Bellamy, though by such 
possession having sufficient means, resources and property 
to have arranged with and satisfied all the creditors then 
having executions, and others, as their suits matured into 
judgment and execution, began to harrass the complainant 
with suggestions of apprehensions that the said deed of 
trust, would prove insufficient to protect and indemnify 
his sureties, and that it would be assailed and defeated, by 
reason of the preferences so given to his endorsers and 
sureties, on the complaint of other creditors, and therefore 
some other and additional indemnity should be provided 
for them. 

He further charges, that harrassed by the ruin impending 
or which he in consequence of the rpresentations of said 
Edward C. Bellamy, supposed to be impending and near at 
hand, and in which he would involve his sureties, com- 
bined with the result of an unfortunate habit of indulging 
in the use of intoxicating liquors, by which his mind was 
rendered utterly incompetent to know and appreciate his 
real situation or to perform any of the duties incident to 
the ownership of property, and in fact being at times ac- 
tually insane, and incapable of contracting and being con- 
tracted with, yielding himself to the direction, control and 
management of the aid Edward C. Bellamy, the whilst 
in this situation, he executed the following deed of con- 
veyance, which is also made a part of said bill to wit: 

^'Whereas, Samuel C. Bellamy did heretofore, to wit, on 
the first day of March, 1841, execute to the Union Bank 
of Florida, two mortgages by which he conveyed among 
other things, the real estate and slaves hereinafter describ- 
ed, being the same slaves and their increase, except those 
which have died, mentioned and conveyed in and by said 



TERM AT TALLAHASSEE, 1855. 71 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

mortgages. And whereas, said mortgages were made to 
secure to said bank the payment of three hundred and 
twenty-two shares of the capital stock of said bank, all 
of which will more fully appear by reference to said 
mortgages, which were duly recorded in the office of the 
Clerk of the County Court of Jackson county. And 
whereas, after the execution of said mortgages the said 
Samuel C. Bellamy did receive from said bank a loan of 
two-thirds of the amount of his said stock, being about 
the sum of twenty-one thousand nine hundred and thirty- 
one dollars, and made and delivered to said bank his note 
commonly called a stock note, therefor, which was renew- 
ed, and the interest paid thereon until about the day of 
. And whereas, there is now due to the said bank 
from the said Samuel C. Bellamy, besides the said stock, 
about the sum of five thousand and sixteen dollars, being 
the interest which has accrued on the said stock nqte since 
the last renewal of the same. 

''Now this indenture made and entered into this 13th day 
of December, in the year of our Lord, 1845, between the 
said Samuel C. Bellamy of the one part, and Edward C. 
Bellamy of the other part, both of the county of Jackson 
and State of Florida, witnesseth, that for and in consider- 
ation of the sum of six thousand dollars to him in hand 
paid by the said Edward C. Bellamy, the receipt whereof 
is hereby acknowledged, the said Samuel C. Bellamy hath 
granted, bargained, sold, aliened and conveyed, and by 
these presents doth grant, bargain, sell, alien and convey 
to the said Edward C. Bellamy, his heirs and assigns, the 
following described real estate and negro slaves, subject, 
however, to the rights of the said Union Bank, in and by 
said mortgages, stock note, and interest due thereon as a- 
bove mentioned, that is to say: 



72 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

"The south-west quarter of section thirteen, township 
five, north, range eleven, west; the east half of the north- 
east quarter of section twenty-three, township five, north, 
range eleven, west; the east half of the south-east quar- 
ter of section fourteen, township five, north, range eleven, 
west; the north-east quarter of section fourteen, township 
five, north, range eleven, west; the west half of the 
north-east quarter of section fourteen, township five, north, 
range eleven, west; the west half of the north-west quar- 
ter of section thirteen, township five, north range elev- 
en, west; the west half of the south-west quarter of sec- 
tion twelve, township five, north, range eleven, west; 
the south-west quarter of section eleven, township five, 
north, range eleven, west; the north-east quarter of sec- 
tion eleven, township five, north, range eleven, west; con- 
taining in all about twelve hundred acres, be the same 
more or less. And the following described negro slaves, 
to wit: 

"Fife, about seventy years old; George, about thirty 
years old; Sam, about twenty-eight years old; Levi, a- 
bout thirty years old; Jim, about sixty years old; Virgil, 
about forty-five years old; Amos, about fifty years old; 
Willie, about forty-five years old; Caesar, about sixty years 
old; Peter about thirty years old; Daniel, about twenty- 
five years old; Dick, about twenty-one years old; Isaac, 
about twenty-two years old; Quincy, a boy, about twen- 
ty years old; Holertie, about sixteen years old; Warren- 
ton about eighteen years old; Jim, Jr., about fifteen years 
old ; Marcus, about twenty years old ; Silas, about fifteen 
years old; Sally, about forty years old; Chany, about for- 
ty-five years old; Nancy, about fifty years old; Jennet, 
about thirty-two years old; Laney, a woman, about thirty 



TEBM AT TALLAHASSEE, 1855. 73 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

years old; Haley, about thirty years old; Esther, about 
twenty-five years old; Hagar, about twenty-four years 
old; Delia, about twenty-two years old; Hannah, about 
twenty years old; Venus, about twenty years old; Rose, 
about eighteen years old; Amy, about thirteen years old; 
Julia, about twenty years old; Fanny, about twenty years 
old; Matilda, about eighteen years old; Lucy, about four- 
teen years old; Jane, about twelve years old; Charity, a- 
bout twelve years old; Solomon, about eight years old; 
Daphne, a girl, about ten years old; Emily, about thirteen 
years old; Elias, about nine years old; Alfred, about eight 
years old; Sarah, about eight years old; Bill, about ten 
years old; Delphi, about five years old; Delilah, about 
three years old; Chance, a boy, about ten years old; Hen- 
ry, about twelve years old ; Calvin, a boy, about ten years 
old; Agga, about twenty-three years old; and the follow- 
ing named children, all under the age of five years, to wit: 
Tom, Marcus, Eliza, Joshua, Bob, Jefferson, John, Frank, 
Venus, Jr., Abby, Margaret, Rany and Teny. To have and 
to hold the above described real estate and negro slaves 
with the equity of redemption, and all the rights which 
the said Samuel C. Bellamy has in and to the same, to the 
only proper use and benefit and behoof of him, the said 
Edward C. Bellamy, his heirs, executors, administrators 
and assigns forever. And the said Samuel E. Bellamy 
doth covenant and agree to and with the said Edward C. 
Bellamy his heirs, executors and assigns in manner follow- 
ing, to wit: First, that there is no other lien or encum- 
brance on the said real estate, and slaves herein conveyed 
except that above mentioned. And second, that the said 
Samuel C. Bellamy has full power, right and authority to 
sell and convey the same subject only to the rights of the 



74 SXJPEEME COUBT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of C«M^ 

^— ^"i^^^i^— i^^^^^^^"^^— ^^^™^^^^^— ^"^^^^^^^— ^^■■■^^^^^■^— ^^ ^—■—^■^—^—^—^■^1— ■■ ^m^^m^mm^^^^^^mmm 

said Union Bank in and by said mortgages, stock, note and 
interest due thereon and none other. 

*'In witness whereof I, the said Samuel C. Bellamy, hath 
set my hand and seal the day and year above written/' 

Signed, Samuel C. Bellamy, [L. S.] 

Signed, sealed and delivered in presence of 

E. Phillips, 

S. W. Carmack. 

'Which said slaves he avers, were conveyed in and by 
the general terms, "aZZ his personal effects of every name 
and description" contained in said trust deed of Novem- 
ber 19th, 1844. 

On page 13 m, of the printed record, it appears that 
the respondent (E. C. Bellamy,) read in evidence the fol- 
lowing paper, to wit : 

'In consideration of a deed of conveyance this day exe- 
cuted by Samuel C. Bellamy, conveying to me his estate^ 
consisting of an equity of redemption in the land and ne- 
groes mentioned therein, I hereby covenant and agree to 
and with the said Samuel C. Bellamy to pay for the same 
the sum of six thousand dollars in manner following, to 
wit: a judgment in the name of S. C. Bobbins for about 
twenty-seven hundred dollars beside interest, rendered a- 
gainst said S. C. Bellamy in the Court of Appeals, at the 
January term, 1845. A note due to Miles Everett for a- 
bout thirteen hundred dollars including interest. A note 
due to the executors or administrators of H. Johnson, de- 
ceased, of North Carolina, for which William Bellamy is 
bound as security of said Samuel C. Bellamy, for about 
the sum of one thousand dollars with interest. A judg- 
ment in favor of William Baker against said Samuel C. 
Bellamy, for which Doctor E. Phillips is liable as his secu- 



TEEM AT TALLAHASSEE, 1855. 75 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

rity, for about two hundred and eighty dollars, and the bal- 
ance of said six thousand dollars, if any there be after de- 
ducting the above pa3rment, and the payment of about six 
hundred dollars, already made by me to Ely Moore, the 
overseer of said Samuel C. Bellamy, and for negro shoes, 
and rope and bagging for the present yearns crop, is to be 
paid to such of the creditors of said Samuel C. Bellamy, 
as he may direct. Witness my hand and seal, this 13th 
day of December, 1845." 

E. C. Bellamy, [L. S.] 

Test: 

E. PhiUips, 
S. W. Carmack. 

Which is admitted to be the agreement entered into be- 
tween them, at the time of executing said last mentioned 
deed. 

He further avers and says, that although he cannot say 
positively, that he executed said last deed, in accordance 
with the provision in the trust deed, his uniform impression 
and belief has been, that it was then urged and impressed 
upon him by the said Edward C. Bellainy and his counsel 
that the said last mentioned deed was in furtherance of the 
objects and purposes of said trust deed, and not in anywise 
inconsistent therewith. 

He further says, that as for the sum of $6000, the consid- 
eration in said deed expressed to have been paid by the 
said Edward C. Bellamy, the same is so grossly inadequate 
as to be a fraud, if there was no trust; yet the same or 
any part thereof, was never paid to him by the said Edward 
C. Bellamy at the time of the execution of the said deed 
or at any time since. 

He further charges, that if said Edward C. Bellamy has 



76 SUPBEME COUBT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

paid any money for the use of the complainants as the con- 
sideration of said deed, it was made from the trust property 
or funds of said complainant already in his hands, or while 
he had sufficient amount of the said trust funds in his pos- 
session and control, applicable to the discharge of such 
debts. 

He further charges, that if said last mentioned deed is 
claimed as an absolute conveyance, it is wholly without 
consideration and void. 

He further charges, that the said Edward C. Bellamy 
should in a Court of Equity, be decreed to be a trustee for 
the said property and for the due management of the same, 
and for the rents, issues and profits thereof made, and which 
under due and proper care and management, ought to 
have been made, so far as the same conveys property not 
conveyed in the trust deed of November, 19th, 1844. 

iLastly, he charges violation and dereliction of his duty 
as trustees, to the great detriment and destruction of the 
funds, and to the great injury of the complainant and his 
creditors. 

The prayer of the bill was, that he, the said Edward C. 
Bellamy, be declared a trustee of and concerning the prop- 
erty mentioned and specified in the deed of 1845, and that 
he render a full, true and perfect account in detail, of all 
and singular the trust property and funds committed to 
his charge, and the rents, issues, profits and proceeds of ev- 
ery description issuing out of the same, or accruing there- 
from, which he or any person for him, or by his consent or 
procurement, received tlierefrom, or which he might, 
could and ought, by proper management, diligence and 
care, to have received therefrom; and that the said E. C. 
Bellamy be removed from his said trust, and ousted of his 



TEBM AT TALLAHASSEE, 1855. 77 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case 

» 

Baid trust estate, and be enjoined from all further interfer- 
ence with, or any control over, and management of the 
said trust property. 

That the creditors specified be made defendants, and re- 
quired to answer and set forth respectively the situation of 
their claims, &c. And that a receiver be appointed, to act 
as trustee, to receive and take possession of said planta- 
tion, slaves, &c., to provide for, keep up, maintain, manage 
and control the same, &c., and pay the clear residue after 
paying expenses, &c., to the creditors of complainant; 
and also to arrange with the Union Bank, so as to reinstate 
the said stock loan and continue the same, according to 
the charter of said bank. And finally, after the purposes 
of said trust shall be accomplished, by the discharge of 
the debts, to deliver to him said property, real and person- 
al, &c., and general prayer for other and further relief, &c. 
It does not appear in the record whether any of the defend- 
ants excepting Doctor E. C. Bellamy, were ever served 
with subpoena, or made any appearance or answer; there 
is no decree pro-confesso. The defendant Doctor E. C. 
Bellamjr's answer, so far as we think necessary to extract 
from it, it is in substance as follows: 

"That he was an endorser, at the request and for the ac- 
commodation of said complainant, on a note payable to 
the Life and Trust Bank, and also a note payable to said 
Miles Everett. That some time in the fall of 1844, the 
said- complainant came to the house of this defendant, and 
informed him that he was so much involved that he could 
not go on with his business, and that unless he made a 
deed of trust for the benefit of his endorsers that this de- 
fendant as well as other endorsers, would lose money by 
him. That this defendant being anxious to secure himself 



78 SUPBEME COURT. 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

against losses on account of his endorsements, upon being 
informed of the embarrassments of the complainants, read- 
ily agreed to accept the security and indemnity proposed 
by him. That complainant procured the deed, exhibit 
A B, and brought it to this defendant to sign, telling this 
defendant that it was a deed of trust for his (this defend- 
ant's) security, and for the security of other preferred cred- 
itors therein named; and this defendant presuming that it 
would secure the objects avowed, executed and accept- 
ed it. 

"That at that time there were executions of the exis- 
tence of which he avers, he, this defendant, was ignorant, 
for a large amount, say from $6000 to $8000, in the hands 
of the Marshal against the said complainant; and to the 
great surprise and astonishment of this defendant, the a- 
mount of $4000 or more of said executions was soon after 
levied upon all the mules, horses, and what the Marshal 
estimated to be about 75 bales of cotton, then in the field, 
it being a part of the property in said deed of trust. That 
after said levy, being urged by the complainant and fear- 
ing he might make himself liable to the other cestuis que 
trust, in said deed, by neglect of duty as trustee, he inter- 
posed his claim in that character, to the property levied 
upon, and gave bond and security as is directed by law in 
such cases, determining in this manner to submit the said 
deed of trust to judicial investigation and construction. 

"That things remained in this position until the fall of 
1845, in which year ^Hhis defendant went on to make the 
crop, paying the overseer and other expenses for negro cloth- 
ing, bagging and rope, dc, out of his own money." That 
as soon as the crop was fairly made and about 50 bales 
picked out, the Sheriff of Jackson eounty levied two other 



TERM AT TALLAHASSEE, 1855. 79 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

executions in favor of Sullivan's administrator and Miles 
Vance, amounting to about $4000, upon all the crop of 
cotton of the year 1845, and all the other property in said 
deed of trust, except such as had been levied upon before. 

"That he put in a claim also for this property, and that 
at the next terra of the court these claims were tried, and 
this deed of trust, attacked by said judgment creditors 
was determined fraudulent and void as to said creditors, 
and this property was found subject to said executions, and 
he ^^aXleges thai said deed of trust was fraudulent and void 
ah initio, as to execution creditors existing at the time 
said deed was executed, and that being void in part it is void 
in toto." 

"That after said property was so found subject as afore- 
said, that he returned it all to the Sheriff, except the two 
lots of cotton of 42 and 62 bales, and that it was sold by 
the Sheriff to satisfy the executions in his hands so levied 
as aforesaid. 

"That instead of there being 75 bales, when ginned, in 
the first lot of cotton levied by the Marshal, there were 
only 42, which were sold by this defendant, and the Life 
and Trust Bank debt paid with the proceeds. 

"That the 62 bales were sold bv this defendant and the 
proceeds applied to the payment of the said executions of 
Sullivan and of Vance. That having thus shown what 
became of all the property conveyed in said deed of trust, 
he denies that the right and equity of redemption which was 
afterwards conveyed in the deed of 1845, was intended to 
be conveyed in said deed in trust, under the general terms 
therein employed, to wit, "all his personal effects of every 
name, nature and description," as is alleged in said bill." 

"This defendant further answering, says: "That in the 



80 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

early part of December, 1845, he was in Tallahassee, for 
the purpose of procuring a judgment against him as en- 
dorser, and the said complainant as principal, which hail 
been rendered against them in the court below, in Jack- 
son county^ and which had been affirmed in the Supreme 
Court, so that it might be placed in the hands of the Clerk 
of the Inferior Court, and an execution issued thereon, for 
the said complainant was in a failing condition; and this 
defendant finding that he had leaned upon a broken reed, 
when he reposed upon said deed in trust for security as the 
endorser of said complainant, was anxious to take every 
step by which he might even partially indemnify himself 
for the heavy liabilities he had incurred, as endorser and 
security for said complainant. When this defendant re- 
turned from this mission to Tallahassee, he found the said 
complainant and Judge Carmack at his home; and the 
said complainant notwithstanding all the trouble and dif- 
ficulty in which he had already involved this defendant, 
insisted upon making another "deed in trust," but this de- 
fendant promptly and positively refused to have anytliiuf/ 
more to do with "deeds in trust/' or anything of the kind. 
preferring to run the risk of losing the money he had ad- 
vanced for the said complainant, and also what he was li- 
able for as his endorser and security, rather than have 
anything more to do with "trusts," or rely again on rope?, 
of sand. The said complainant, still professing a great 
desire to secure his endorsers against losses on his account, 
this defendant said to him that he, the complainant, still 
had a remaining interest in some property morci^aged to 
the Union Bank of Florida, which at that time, as the de- 
fendant was advised, was not subject to execution, the 
statute authorizing the sale of equity of redemption under 
execution not then being enacted. 



TERM AT TALLAHASSEE, 1855. 81 

Kdward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

^^This defendant further said to the said complainant 
that if he was serious in tho desire lo protect: him a;^ainst 
liabilities as his endorser, and wouid, in good faitli, sell 
Iiim his remaining intercah or eijuitv of rodem[)ti(m, in so 
much of his, the sairl complainant's ])ank property, as 
i^ould be sufficient to jover the advances and liabi.ities 
'^wrhich this defendant had incurred for the said complain- 
ant^ and some other debts, about which the said complain- 
ant expressed great anxiety, that this defendant would go 
i» some estimate of the value of the interest in the prop- 
erty agreed to be conveyed, and also an estimate of the 
amount of debts desired by the complainant to be secured. 
At this time a suit was pending against the said complain- 
ant by the Union Bank for a large amount of money there- 
tofore loaned to the said complainant, and it was then the 
general impression in the country that the property mort- 
gaged to the bank would be subject to execution to satisfy 
judgments obtained by said bank in such cases; and the 
artful "and designing complainant," finding that this de- 
fendant could be no longer duped into a participation in 
fraudulent deeds of trust, and fearing that his mortgaged 
property would be sold to satisfy the said debt for loaned 
money, which would soon be matured into judgment a- 
gainst him, in favor of the bank, he, the said complainant, 
without any undue influences upon the part of this de- 
fendant, and with a full knowledge of the situation of his 
affairs agreed to convey to this defendant all his remain- 
ing interest in so much of the said bank property, as 
would be sufficient to secure this defendant against his 
said liabilities on the said complainant's account, and cer- 
tain other debts, about which the complainant expressed 
great solicitude and anxiety as aforesaid. That thereupon 
7 



82 SXTPEEME COUET. 



Edward C. B«lhUBy tb. Samoel C. Belhuny'a Adm'r.^ — Statement of CM«b 

the said complainant and this defendant left this defend- 
ant's house^ in company with Judge Carmack, and went to 
Marianna for the purpose of eflfecting the conveyance of 
the said interest of the said complainant in a portion of 
the said mortgaged property as above indicated. The 
daid complainant furnished a list of the slaves and land, 
his interest or equity of redemption in which was intended 
to be conveyed, and a description of the same and the 
Hon. Samuel Carmack, who was employed by the said 
complainant for that purpose, drafted the deed of convey- 
ance. After the conveyance was drawn, the complainant 
cam^, in an intoxicated state, before defendant and the said 
Carmack, and signed the same; but this defendant posi- 
tively refused to accept the delivery thereof, on account 
of its being signed and sealed by the complainant in the 
situation in which he then was. The complainant then 
came back on the following morning in a sober and ration* 
al situation, and executed a newly drawn deed, the same 
in substance as the one he had signed the day before, 
which last deed as well as the former, was drafted at the 
request and under the direction of the said complainant. 
This defendant accepted the delivery of the last mentioned 
deed of conveyance referred to in complainant's bill of 
complaint, and therein designated as exhibit B. 

"As to the consideration mentioned in said deed, to wit, 
the sum of six thousand dollars, this defendant alleges that 
it was sufficient, adequate and equal to the value of the 
interest conveyed by the said complainant in said deed. — 
Said deed purports to convey the equity of redemption of 
the said complainant to this defendant in twelve hundred 
acres of land, and sixty-five slaves. It was found, howev- 
er, tliat one of the slaves mentioned in said deed, value a- 



TEEM AT TALLAHASSEE, 1855. 83 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

1>out dollars, was not included in the bank mortgage, 

and there being no incumbrance on him, he was taken in 
execution to satisfy the debts of the said complainant, 
and sold by the Sheriff for that purpose. Of the sixty- 
four which remained, one old man has since died, and eight 
of them are perfectly worthless, by reason of consumption, 
dropsy, deformity from sickness, bums, and chronic rheu- 
matism, with which diseases, &c., they were afflicted at 
the time of said last mentioned conveyance, and so far 
from their being valuable or profitable, they are an expense 
to the plantation. 

'^Thirteen of the said number of sixty-four slaves are 
children, under the age of nine years, and about eight of 
the number were from forty-five to seventy years old, 
and about eight or ten others ranging down from five to 
ten years of age, at the time said conveyance was made. 
This defendant alleges that taking all said slaves. as a 
gang, they were not likely, are altogether an expensive set 
to support, and they were not at the time said conveyance 
was made worth upon an average, as he believes, more 
than about two hundred and fifty dollars apiece. This de- 
fendant further alleges, that of the lands included in said 
conveyance, much lies in the swamp and in the woods, 
and if it had been unincumbered and sold at public sale, 
it is not reasonable to suppose that it would have brought 
more than the adjoining land of equal, if not superior 
quality, on three sides, which sold on a credit of one, two 
and three years, at from a little more than one, to three 
dollars and fifty cents per acre. The amount of said 
complainant's subscription for stock in the Union Bank 
for which said property had been mortgaged, was about 
thirty-two or three thousand dollars, and the amount of 



84 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

the judgments which were soon after rendered against the 
said complainant in favor of said bank, for money, in the 
Circuit Court for Jackson county, was about twenty-seven 
thousand dollars, as this defendant is informed and believes. 
This defendant purchased said property, subject to both 
these claims, amounting in all to about sixty thousand dol- 
lars, under these estimates, or any reasonable estimates 
which could be made of the value of the property in said 
conveyance mentioned, and of the amount of incumbrance 
which said Bank had upon said property. 

"This defendant confidently alleges that the considera- 
tion mentioned in said deed of conveyance to him is full, 
adequate and altogether sufficient for the interest (it being 
a mere equity of redemption) in said property, which the 
said complainant conveyed to him in the deed of the 13th 
day of December, 1845, as mentioned in said complain- 
ant's bill of complaint. Thisi 4tl^ndant positively alleges 
that the said last mentioned deect had no connection what- 
ever with the said deed of trust of the 19th November, 
1844, but was wholly distinct from, and independent of it. 
That while the trust deed of 1844 was tainted with fraud, 
the deed of 1845 was made for a good and valuable con- 
sideration — ^was honest and bona fide in all respects, free 
from fraud, secret trusts and all other fradulent contri- 
vances — was made without any undue influence or unfair 
practices upon the part of this defendant, and executed by 
the said complainant, after due reflection, and in a sober 
and rational state of mind, and was drawn up and pre- 
pared by a legal gentleman, employed by the complainant 
himself for the purpose, a gentleman whose heart is too 
pure, whose nature is too honest, whose intellect is too 
clear, and whose legal learning is too accurate and pro- 



TEEM AT TALLAHASSEE, 1855. 85 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Statement of Case. 

found, to have allowed him on the one hand to have be- 
come the instrument of fraud, or upon the other to 
have made a blunder in conveyancing, at which a mere 
tyro would be ashamed. This defendant having become 
the purchaser of the said complainant's equity of redemp- 
tion in the property described in the said deed of the 13th 
December, 1845, gave the complainant his obligation to 
pay oflf and discharge all the debts of the said complain- 
ant for which this defendant was liable as endorser or se- 
curity, and also certain other debts mentioned in said obli- 
gation, and which was designated by the said complain- 
ant, which said debts in all amounted at least to the sum 
stated as the consideration in said deed, if not more. If 
less than $6000, this defendant was to pay other debts to 
the said amount.'^ 

He further says, that since that time, he has paid up the 
greater part of the debts mentioned in the said obligation 
and that he is ready to pay the balance which may yet re- 
main unpaid. 

That this defendant has time after time, offered to re- 
scind the whole contract upon being indemnified for the 
monies paid and the liabilities incurred by him for and on 
account of the said complainant. 

He further says, that if he did not pay interest on the 
Union Bank debt of the said complainant under the said 
deed of trust of 1844, it was because he had no means in 
his hands as trustee to pay the same; and this defendant 
further says, that after said deed in trust was decided to 
be fraudulent and void, this defendant had nothing more 
to do with it, and could not be compelled to act under it. 

In behalf of complainant, Joseph W. Russ testifies: — 
"That his plantation adjoins the Rock Cave plantation. 



86 SUPEEME COUKT. 



Edward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Statement of Case. 

that they lie side and side for about a mile. Has been liv- 
ing there before and ever since Samuel Bellamy owned the 
place. That he has been well acquainted with the plan- 
tation and negroes of Samuel Bellamy, but not so well of 
late^ since it went out of his possession. It was looked 
upon while in the possession of Samuel Bellamy by wit- 
ness and everybody else who knew it, as one of the finest 
plantations in the country. That witness had rather have 
it than any plantation he knew of ^or the number of acres. 
Samuel Bellamy made fine crops there — that he made 
from 250 to 300 bales of cotton per year, and one year wit- 
ness thinks he made over 300 — ^bales were the same size 
as usually made in the country, they were formerly not so 
heavy as at present — from 500 to 600 lb. bales are usual- 
ly made now, some as high as 700. Samuel Bellamy made 
full provision crops— does not know that he sold any. 

"That in the fall of 1845, the Rock Cave plantation 
would have sold for as much as any land in the country — 
does not know what land was selling for at that time — 
thinks there were between 1000 and 1200 acres of cleared 
land, and when in possession of Samuel Bellamy the 
houses, fences, and other improvements were in good order 
and fit for use — thinks the negroes were first rate negroes, 
as good as any in the county. That he lived by them a 
long time, and found them honest and peaceable, and man- 
ageable and healthy as any other negroes.'' 

R. B. Carlton, another witness in behalf of complain- 
ant, states: "That he came to this country with Samuel 
C. Bellamy, and overseered for him in the years 1836, 1837, 
1839 and 1840, that he was well acquainted with the char- 
acter and value of Samuel C. Bellam3r's negroes, and that 
there were 40 working hands at the time he overseered tot 



TEBM AT TALLAHASSEE, 1855. 87 

Edward C. Bellamy yb, Samuel C. Bellamy's Adm'r. — Statement of Case. 

him, and were as valuable a set of hands as any in Jackson 
county. That he settled the plantation, and cleared most 
of the land; that there were a good many likely young 
hands growing up at the time. The land was very good, 
and Samuel C. Bellamy once in his presence, refused $20 
per acre ; and witness considers it would make as much 
per acre as any land in the country, and that he has made 
it; that he has had a good general knowledge of the plan- 
tation since, and especially since 1841, and also of the 
hands, and has been there as often as once a week since 
that time. 

^^That since the plantation has been in the possession of 
Edward C. Bellamy for the last year or two, it has gone 
down to nothing. That since the negroes went out of the 
possession of Dr. S. C. Bellamy, witness had seen them 
frequently, but the present year he had not seen them 
xnuch, except a few of them. That since they had gone 
out of Dr. S. C. Bellamy's possession he had not seen any 
of them well clothed, that they appeared poor and scraw- 
ny, and he frequently met them on the road and did not 
know them as some of the negroes he came from North 
Carolina with.*' 
Hugh Spears, a witness also for complainant, testifies: 
"That he is well acquainted with the Rock Cave tract of 
land, he supposes there are 1000 or 1200 acres — a good 
deal of swamp and ponds on the tract — that in 1845 about 
$6 per acre would have been a fair cash price for the plan- 
tation, land being then low/' 

Judge Baker, a witness in behalf of said defendant, 
says in his answer to 10th cross interrogatory: "I was 
present when the value of Dr. S. C. Bellamy's property was 
spoken of. I do not remember what was said by each in- 



88 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

dividual. I can only state that when $6000 was stated as 
the consideration in the deed, it was signed by Dr. S. C. 
Bellamy without objection. I have already stated that he 
was not intoxicated when he signed the deed; so far as I 
was capable of judging, he seemed to understand what he 
was about. I do not know that others were consulted a- 
bout the value of the property. Judge Carmack thought 
that $6000 was as much as the property would bring at a 
cash sale, over and above the liens and incumbrances n 
on it. I was under the impression that the consideration 
in the first deed was $6000; in this, however, I may have 
been in error.^^ 

In his answer to the 11th he further states: "Judge Car- 
mack advised E. C. Bellamy to buy the property, as I have 
before stated. He moreover advised them not to have a 
private understanding, either verbal or in writing. He 
probably meant by this advice to guard them against just 
such a suit as the one now pending." 

In another place, in his answer to 69th cross interroga- 
tory, he says: ^^ Judge Carmack seemed to be the friend of 
both Samuel and E. C. Bellamy." Judge Carmack in his 
deposition read in evidence by the defendant, in speaking 
of the deed of 1845, of which he is interrogated, states: 
"That the deed was drawn by witness at the instance of 
Edward and Samuel Bellamy. That as well as witness 
can state at this late day, after so long a lapse of time, 
that after the deed of trust of intended to secure Ed- 

ward Bellamy and others, had been overruled by the court 
and declared fraudulent and void, and the decision acqui- 
esced in by the lawyers who defended it, Samuel C. Bella- 
my detained witness two or three days in this county con- 
sulting him about the matter, (Edward Bellamy not being 



TERM AT TALLAHASSEE, 1855. 89 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

present at the conferences, and as witness believes he was 
then absent, where he does not remember.) Witness was 
detained, as well as he recollects, after the plan had been 
settled, until the return of Edward C. Bellamy, that wit- 
ness might assist in consummating the plan. 

'^That another important circumstance in declaring the 
old deed a nullity, fraudulent and void, was, according to 
his recollection, that it was for a very long and indefinite 
period of time. That when consulted by Samuel C. Bella- 
my, he avowing it was his object to keep his property to- 
gether, witness told him it could not be done by a deed of 
trust, unless it be forfeited in some reasonable time. That 
in this matter of the deed annexed, witness told Samuel and 
Edward Bellamy to have no secret understanding, either 
verbally or in writing and that Sam must trust to Ned's 
generosity. And witness had no doubt he did so, and thought 
that Edward Bellamy would return Samuel his property 
after he had paid his debts; this, however, is mere matter 
of opinion, but nothing to warrant such an opinion passed 
at the time of the execution of the deed, and not for some 
time after. Nothing but their relationship, and Sam's 
willingness to trust his brother with the possession and con- 
trol of his property, induced this opinion. 

"That the reason of the great haste to execute a con- 
veyance of some kind to somebody, that would stand, was 
because the newspapers stated that there was a bill before 
the Legislature to sell the equity of redemption, and wit- 
ness gave it as his legal opinion that the executions would 
be a lien upon the equity, and would postpone any sale or 
conveyance made after the lien attached. The two mat- 
ters of fact most constantly in witness' mind at the time of 
the execution of the deed and since, was witness' repeated 



90 SUPEEME COURT. 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

advice to both Edward and Samuel Bellamy that they 
should have no secret understanding, or trust that this 
property should ever be delivered up to Samuel C. Bella- 
my, and both of them protested that tnere snouia oe no 
such agreement or imderstanding. The other fact is that 
witness told Samuel C. Bellamy thai he must leave the plan- 
tation conveyed in the deed, and to exercise no control over 
it, or any negro conveyed in the deed, and he agreed to do 
BO. That witness advised them both that Sam should sell 
out for a full, fair and equate consideration, or words to 
that eflfect. 

.The deed was executed in Gen. Baker^s office, at Mari- 
anna, and both parties were present at the time of execu- 
tion. And said deed was undoubtely intended by com- 
plainant and defendant as an absolute and unqualified con- 
veyance. That both parties were friendly at the execution 
of the deed, but witness does not recollect the particulars 
of the conversation; thinks they conversed as much about 
other matters as about the deed; that from their conversa- 
tion witness judged that Sam, had unlimited conlldence in 
his brother. 

At the time of the execution of said deed, Samuel C. Bel- 
lamy was neither intoxicated nor deranged, but, that he 
reasoned like a man who had a purpose to carry out, and 
was capable of appreciating the most effectual means for 
carrying out that purpose. That he reasoned accurately 
and well, as witness thought. And that as to his insanity, 
though witness lived in the community, he never heard it 
suggested till long after this period. There was no con- 
nection whatever between the said deed and the trust deed 
of 1844, BO far as the parties themselves understood it; on 
the contrary, the parties themselves knew the fact to be. 



TEBM AT TALLAHASSEE, 1855. 91 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

that the old deed had been declared fraudulent and void by 
the court, and that their counsel did not hesitate to advise 
them not to carry it to the Supreme Court; the deed be- 
ing hopelessly void and fraudulent. That the complainant 
and defendant said nothing about any connection between 
the two deeds that witness heard. 

Edward C. Bellamy was to pay six thousand dollars of 
complainant^s debts, most or all of which he was respon- 
sible for as complainant's security, and this was the consid- 
eration of the deed. 

In reference to the testimony of Judge Carmack, a letter 
from John Tanner, the Examiner, and which is found in the 
record, states: That soon after his appointment to take tes- 
timony in this case he called on Judge C. to take his testi- 
mony, and he was so ill that he had to call several times 
before he could complete his answers to the direct interro- 
gatories, and when he went to examine him upon the cross 
interrogatories found him dead. 

Dr. Philips, on being asked whether or not the said 
Samuel C. Bellamy was, at the time of the execution and 
deliver}' of said deed, of sound mind and capable of think- 
ing and acting in the ordinary affairs of life? 

Anflwers: "/ think he was." 

Again, he says : "That for about a year before the exe- 
cution of the said deed, I know that he was very much ha- 
rassed and his habits were intemperate; that he was mel- 
ancholy and violent in his temper, but when sober, I thought 
him capable of transacting business.^' 

''A short time before the execution of the deed of 1845, 
Edward Bellamy did say to me in presence of Sam. that he 
had been pointing out to Sam. how he could secure both of us." 

'TThe only consideration which I saw was the obligation 



92 SUPREME COUET. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Caae. 

of Edward Bellamy to pay certain debts of Samuel Bella- 
my to which he and myself were sureties. I don't recollect 
whether I witnessed it or not, nor do I remember certainly 
that it was delivered to Sam, but think it was delivered to 
Sam/' 

^*The contents of the consideration, as near as I can re- 
collect, Edward Bellamy obligated himself to pay a debt to 
Miles Everett of about a thousand dollars, to which he was 
security; also a note of Sam's to the Life and Trust Bank, 
to which he was security for about twenty-five hundred or 
three thousand dollars, a note to William J. Baker, to which 
I was security for about three hundred dollars." 

In the testimony of John T. Myrick, the Deputy Sheriff, 
there is a list of judgments and executions vs. S. C. Bella- 
my — of these, the following were before the 19th Novem- 
ber, 1844, the date of the execution of the trust deed, to 
wit: Perkins, Hopkins and White, judgment 6th June, 1843, 
$212.38. 

John W. Southall, judgment 19 Oct., 1843, $275.25 

Green Mitchell, " 9 June, " 676.01 

John Brett, Jr., for use &c., 19 Oct., " 1430.86 

N. C. Robbins, " 27 May, 1844, 2703.63 

Among the receipts filed by defendant, appears that 
Robert Myers, Marshal, held an execution on judgment of 
Isaac Widgeon, of 19th Oct., 1843, for $309.45. 

The following judgments also appear which were recov- 
ered between the first and second deed, to wit : 

The Union Bank, judgment 8th May, 1846, $27,710.64 
Wm. Sullivan, Adm'r, " 27th Nov., 1844, 3,320.67 
Miles Vance, " 20th, " " 322.36 

Geo. A. Croom, " 2d Dec'r, 1845, 1,160.36 

Hugh Spears for use &c., " 22d Nov., 1844, 1,122.92 



TEEM AT TALLAHASSEE, 1856. 93 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

Samuel Stephens^ the Sheriff^ testifies: That he made a 
levy on Executions in favor of said Miles Vance^ and Sul- 
livan's Administrator (when this levy was made don't ap- 
pear^ but it must have been previous to December Term, 
1845,) he says, however, he was Sheriflf at the time of the 
sale in 1846, which took place, according to the testimony 
of Mr. Myrick, the first Monday in January, 1846, on Exe- 
imtions in favor of Sullivan's Administrator and Miles 
Vance, an account of sales of which appears in his testi- 
cnony marked Exhibit X. ; and at that sale the said Ed- 
nrard C. Bellamy bought cotton, hogs, com, cows and calves 
Buid cotton seed, his bids amounting to about $1800. 

Mr. Myrick also testifies that D. Pittmann, as Deputy 
Marshal, made a levy for the sale stated in paper Y on ex- 
ecutions in favor of Perkins, Hopkins and White, Southall, 
IBrett and Mitchell, which must have also been before De- 
cember court, for he says: the right of property was tried 
in December. At this sale Edward C. Bellamy bought 
mules and horses amounting to 

Mr. Stephens further testifies: "That he had a conver- 
sation with Dr. Edward C. Bellamy before the sale — about 
the time of the sale, and after the sale — that he understood 
from E, C. Bellamy that he had bought the property at the 
sale for the purpose of keeping the property together, and 
keeping up the farm to aid his brother, Samuel C, Bellamy," 
Witness thinks he understood it from him several times in 
this way: witness thought his language applied to all he 
bought in. He thinks these remarks were made to him at 
Bock Cave while he was delivering the property to him, 
and also probably in town; he delivered him stock cattle, 
stock hogs, meat hogs, com and seed cotton in the gin 
house. All these he delivered to E. C. Bellamy at the plan- 



94 SUPREME COXJET. 



Edward C. Bellamy yb. Samnel C. Bellamy's Adm'r. — Statement of Cast. 

tation. Witness did not understand Dr. Edward Bella- 
my (in his presence) to claim the property purchased at the 
sale for his own benefit. Witness was of impression before 
the sale that Dr. Edward C. Bellamy was going to pur- 
chase this property for Samuel C. Bellamy, and was of thai 
impression all the time." 

''That he received the impression that Edward Bellamy 
was going to buy the property at the sale for Samuel 
Bellamy^ from conversations with Edward Bellamy, and this 
witness thinks, was the general impression, and several per- 
sons told him they would not bid for the property because 
they thought it was going to Samuel Bellam)r^s benefit/* 

Witness Myrick further says : " He does not think the 
negroes in paper Y brought near their value — the other 
property did not bring its full value he thinks; does not 
think the other property so much out of the way; the mules 
came Aearer the mark/' 

"That about the first of February, 1846, S. C. Bellamy 
was complaining to him, witness, of E. C. Bellamy and wit- 
ness told E. C. Bellamy of it, and he requested him to quiet 
S. C. Bellamy — that he was doing all of this business for 
S. C. Bellam/s good. I told Ned Bellamy that Sam Bella- 
my had complained to me — ^that he believed Ned Bellamy 
was going to take his property from him. I told him this 
about the time the bill of sale for the negroes was made to 
William Bellamy, and this was the first time I heard of any 
dissatisfaction on the part of S. C. Bellamy about the pro- 
perty.'' 

"Edward Bellamy replied that he was doing it all for Sam's 
good, and asked me to quiet him; by dissatisfaction before 
mentioned, witness means that S. C. Bellamy was not dis- 
satisfied with E. C. Bellamy because the bill of sale was 



TERM AT TALLAHASSEE, 1855. 96 

Kdward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

made to William Bellamy, that was what he wanted done 
in paper marked X." 

*'That the complaints which witness mentioned as com- 
ing from Samuel Bellamy were about the whole property 
"vrhich Edward Bellamy had got from Samuel Bellamy, and 
^vrhich complaints witness communicated to Edward Bella- 
'xnj, and it was to these that Edward Bellamy made the re- 
3ply before stated/' 

"That Samuel Bellamy and Edward Bellamy had quar- 
^relled about the last deed which was drawn by Judge Car- 
:3nack, and before then, witness had thought that the proper- 
ty had been bought in by Edward Bellamy for Samuel Bel- 
lamy, and after that quarrel commenced, Edward Bellamy 
told him that the property he bid off on the first Monday of 
February he had bought fairly, and he meant to keep it, ex- 
cept the five negroes/' 

The witness Buss testifies, that he "was present in town 
when Samuel Bellamy's stock was sold, in Marianna, un- 
der levy. Thought the property sold very cheap, there 
was not much competition, persons did not bid freely; that 
E. C. Bellamy, he thinks, bought most of it. Did not ob- 
serve that persons were less disposed to bid against Ed- 
ward Bellamy than others. Witness thought that Edward 
Bellamy was trying to keep Samuel Bellamy out of his 
difficulties, and a great many persons thought so, and such 
was the general impression, so far as witness knew, but 
does not know that his own, or the general impression was 
correct. There were at the sale alluded to, some persons 
who bid against E. C. Bellamy. The property he saw 
Bold, cheap, for less than he thought the value of it." 

April 10th, 1845. 
"Memorandum of an agreement entered into between Ed- 



96 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

ward C. Bellamy, trustee of the property of 'Samuel C. 
Bellamy, of the one part, and E. P. Moore, of the other 
part witneseeth : That the said E. P. Moore, is to do the 
duties of an overseer on the plantation of the said S. C. 
Bellamy faithfully, and to give prompt and ready obedi- 
ence to all orders of the said E. C. Bellamy, in regard to 
the business of said plantation. And the said E. C. Bel- 
lamy, as trustee aforesaid, agrees to pay the said E. P. 
Moore the sum of three hundred and fifty dollars out of 
the crop made on said plantation; but in no event is it un- 
derstood between them that said E. C. Bellamy is to pay 
the said Moore out of his own monev, but as trustee as a- 
bove mentioned; the said Moore to do the duties from the 
1st of January up to the 1st of December, and to be fur- 
nished with board for himself and horse during the time/* 

E. C. Bellamy, Trustee. 
Eli P. Moore. 

There was much additional testimony, which we have 
gone over with great care; but we do not think it ma- 
terially varies the case. 

The following decree was made in the Circuit Court sit- 
ting in Chancery, from which decree the defendant below, 
Dr. E. C. Bellamy, appealed to this court. 

In Equity — Western Circuit, 

Jackson County — Fall Term, 1850. 

Edward C. Bellamy, et al., Def ts, 

and 
Samuel C. Bellamy, Complainant, 

This cause came on to be heard at the Spring Term, 
1850, of this court, before the Hon. George S. Hawkins, 
Judge of the Western Circuit, upon bill, answer of defen- 



Bill for Acc't Relief, 
&c. 



TERM AT TALLAHASSEE, 1855. 97 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

dant, Edward C. Bellamy, replication, exhibits, and proofs 
taken in this cause, and the same having been fully argued 
by counsel for botli parties, and the matters in dispute ful- 
ly considered, and the judgment and decree to be given in 
the premises fully advised of, his Honor doth think fit, and 
80 orders, judges and decrees: 

First — That the deed of conveyance of the said complain- 
ant to the said defendant, Edward C. Bellamy, bearing date 
the thirteenth day of December, in the year of our Lord, 
one thousand eight hundred and forty-five, (1845), mention- 
ed in and exhibited with said complainant's bill of com- 
plaint, for the reasons at large set forth in the opinion de- 
livered in this cause, was and is wholly inoperative and 
void and that the said Edward C. Bellamy should and 
ouglit to account for the trust property and funds conveyed 
by and possessed under the trust deed from the said com- 
plainant to the said Edward C Bellamy, bearing date the 
nineteenth day of November, in the year of our Lord one 
thousand eight hundred and forty-four, also mentioned in 
and exhibited with complainant's said bill of complaint. 
■ Secondly, — It is further adjudged and decreed that the 
said defendant, Edward C. Bellamy, holds that portion of 
the trust property and profits and issues thereof, purchased 
by him at the sales under execution by the Sheriff of Jack- 
son county on the first Mondays of January and February, 
1846, subject to the uses and trusts limited and appointed 
in the aforesaid deed of the nineteenth of November, in the 
year one thousand eight hundred and forty- four, and is lia- 
ble to account therefor. 

Thirdly — It is further ordered and decreed that the de- 
fendant, Edward C. Bellamy, account before George F. 
Baltzell, Esq., one of the Masters in Chancery of this Court, 



98 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Statement of Case. 

upon and at such time as shall be appointed by said mas- 
ter, of and concerning the aforesaid trust and the execution 
thereof, rendering a full, true and perfect account in detail 
of all and singular the trust property and funds committed 
to his charge, and the rents, issues, profits, crops and pro- 
ceeds issuing out of the same, or accruing therefrom, which 
he, or any other person for him, or by his consent or pro- 
curement, received therefrom, or which he might, could and 
ought, by the exercise of reasonable diligence, to have re- 
ceived. Said accounting to be upon due notice to com- 
plainant or his solicitor, and according to the usual mode 
of proceedings in the office of the master; and that said 
master make report of said accounting, and the evidence 
taken before him thereon, with all convenient speed. 

Fourthly, — It is further ordered and decreed that the said 
Edward C. Bellamy be removed from his said trust, and 
ousted of his said trust estate; and that he deliver over to 
the Receiver hereinafter appointed all of the said trust pro- 
perty, and funds, and the rents, issues and profits, and crops 
arising from or issuing out of the said trust property, now 
in his hands, power, possession or control, and thereafter 
stand and remain restrained and enjoined from any inter- 
ference with, control over, or management of the said trust 
property, *til the further ojder of this court in the premis- 
es. 

Fifthly. — It is further ordered and decreed that Frederick 
R. Pittman, of the county of Jackson, be appointed Recei- 
ver of this Court in this cause, upon his entering into bond 
in the penalty of ten thousand dollars, ($10,000,) with good 
and sufficient security to be approved of by the master a- 
foresaid, and conditioned for the due and faithful perform- 
ance of his duties ; and that said Receiver shall, with all 



TERM AT TALLAHASSEE, 1855. 99 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

convenient 8f)eed, demand and receive from tlie said Eg - 
vard C. Bellamy, the tnist property hereinbefore mention- 
ed, and shall rent out the plantation, and hire out the slaves 
at public auction by the year until the further order of the 
court in the premises, and shall render and file in the office 
of the Clerk of this Court annual accounts and returns of 
his actings and doings in the premises, and of the amounts 
of funds and securities in hand. 

Sixthly. — It is further ordered and decreed, that the said 
George F. Baltzell, master as aforesaid, do also proceed to 
ascertain and report to this court the names of the credi- 
tors of the said Samuel C. Bellamv, who are entitled to the 
benefits of the trust estate, heretofore conveyed by the said 
Samuel C. Bellamy to the said Edward C. Bellamy as afore- 
said, with the amounts due to each respectively, and the 
respective order of priorities; and for this purpose the said 
Tnaster shall make advertisement for the presentation of 
such claims, within such time as he shall deem reasonable 
and proper in the premises. 

And that all further directions are reserved until the com- 
ing in of said reports. 

GEOKGE S. HAWKINS, Judge, &c. 



OPINION. 

From the testimony in the case, it is not satisfactorily es- 
tablished, as charged in the bill, that the mind of the said 
Samuel" C. Bellamy, at the time mentioned, was so affected 
from his habit of indulging in the use of intoxicating liquors, 
or from any other cause, as to render him incompetent from 
mental imbecility to know and perform any of the duties 
incident to the ownership of property, when sober. The im- 
portant questions therefore in this case are: 1st. Whether 







100 SUPREME COURT. 



Bdward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Opinion of Conrt. 

at the time the said deed was executed, marked " Exhibit 
C. D/^ and dated 13th December, 1845, and, whether at the 
time of the purchases at the Sheriff's sale in January and 
February, 1846, (or at either of them,) the said E. C. Bella- 
my had been so divested of his fiduciary capacity as trustee, 
&c., as to prevent all the consequences of his acting, both 
for himself and for the cestui que trtist. 

Secondly. — Whether, if he was not so stripped of his char- 
acter as trustee, he could in law, have made said purchases, 
or either of them, without being subject to equities that at- 
tach to such purchases. 

It becomes necessary for us in considering these ques- 
tions to enquire: 

First, — Whether the trust deed of 1844, was as between 
the parties thereto a good and valid instrument? 

Second. — ^What property was embraced therein? 

Third. — Whether the property purchased by E. C. Bella- 
my at Sheriff's sale was the same as that included in the 
deed? 

Fourth. — Whether the slaves and lands, or any interest 
in tliem, or either of them, included and mentioned in the 
deed of 1845, formed any part of said trust? 

In construing either or both of said deeds, the court is 
authorized in looking to the motives that led to them, and 
the objects intended to be effected by them; and doing this, 
they must depend on the circumstances at the time. 

The first question to be determined under the conveyance 
in trust is, whether it was void, as between the parties, at 
the time said purchases were made by said Dr. E. C. Bella- 
my, or whether it was merely voidable as to creditors? 

It is laid down as law in 1 Story's Equity Jur., sec. 371 — 
"That although voluntary conveyances are, or may be void. 



TEEM AT TALLAHASSEE, 1856. 101 



Edward C. Bellamy n. Samuel C. Bellamy's Adm*r. — Opinion of Coart. 

as to existing creditors^ they are perfect and effectual^ as 
between the parties^ and cannot be set aside by the gran- 
tor^ if he should become dissatisfied with the transaction. It 
is his own folly to have made such a conveyance. A con- 
veyance of this sort (it has been said, with great force) is 
void only as against creditors ; and then only to the extent 
in which it may be necessary to deal with the conveyed es- 
tate for their satisfaction. To this extent and this only it is 
treated^ as if it had not been made. To every other pur- 
pose it is good — satisfy the creditors and the conveyance 
stands." See opinion Yates J., in Newman vs. Kapp, 5 Bin- 
ney 76, 8 Gill 501. 

It is by no means certain that the conveyance now un- 
der consideration was void at all. It is well settled law, 
that a person in failing circumstances may prefer creditors. 
A sale, assignment, or other conveyance, is not necessarily 
fraudulent, because it may operate to the prejudice of a par- 
ticular creditor. The delay necessarily resulting from a 
fair exercise of these rights is not prohibited by any statute. 

The case of Ravisies vs. Alston, Trustee, 5, Ala., 302, is a 
case very analogous with tliis. In that case the court sus- 
tained the deed of trust even against a creditor and remark, 
'it is not a badge of fraud that the grantor remained in 
possession after the execution of the deed, as such posses- 
sion, was consistent with its terms, and the debts, or a con- 
siderable portion of them to secure which it was made, were 
not due." 

That there was no time specified within which this trust 
was to be performed, does not strike us, as a badge of fraud. 
Would it not be like a note without time specified for pay- 
ment? 

But we do not undertake to decide whether this deed was 



102 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

void or not, and for the purpose of the consideration of the 
matters before us, we will consider it as voidable by cred- 
itors. 

As to the creditors then, the deed was only voidable, and 
the preferred creditors, though not parties to the declaration 
of trust, may claim under it. 4 John. Ch. 529. 

Dr. E. C. Bellamy was himself a preferred quasi credi- 
tor, — by said trust deed, he became a trustee, not only for 
Samuel Bellamy, but for the other . creditors — he accepted 
the trust, and as one of the preferred beneficiaries derived 
benefit from it. To say, that he shall not fulfil his trust, so 
far as in his power to do so, would be giving the power of 
the court to aid him in making gain. Having accepted 
the trust, he could not disclaim and throw it off. He can- 
not set up or insist that this deed was fraudulent, — he has 
undertaken to carry into effect its objects and purposes. — 
See Strong vs. Willis, 3 Fla. Repts. 124. He was a volun- 
tary part to it, and thereby negatives any fraudulent in- 
tent, besides both complainant and respondent, in their bill 
and answer disavow that their object was to hinder or de- 
lay creditors. Courts have refused relief, where the avowed 
object was to hinder and delay creditors. This was not the 
principal motive here, no such object was avowed, although 
the result might have operated delay. What is the deed? 
It is but a conveyance to a trustee, (himself a quasi credi- 
tor,) for the benefit of himself and other preferred creditors. 
When these debts are paid and the objects secured, the pro- 
perty was to be reconveyed. Such a stipulation is not fraud- 
ulent. Johnson vs. Cunningham, 1 Ala. Repts., 258. 

Now this was neither illegal, immoral, or against pub- 
lic policy, and if the intent of the transaction was to delay 
creditors, it was not to hinder and delay the jinal payment. 



TERM AT TALLAHASSEE. 1855. 103 



Edward C. Bellamy x». Samuel C. Bellamy's Adm'r. — Opinion of Court. 

therefore, it could only as against them, l)e illegal, immoral 
or against public policy. Murray vs. Riggs, 15 Johnson, 
571. 

The statute of Florida sustains the view here taken. It 
provides that conveyances to the end, purpose, or intent to 
delay, hinder or defraud creditors of their just debts shall he 
as against the person or persons so intended to be delayed, 
hindered or defrauded, deemed void and of none effect. — 
The statute on this subject in some of the States is differ- 
ent, for instance, in Ohio it is unlimited in its terms—ours 
is not. Exprcssio unius est exclusio alterius. 

Great stress seems to have been laid upon the result of 
the trial in the <ilaim case, and because it was on that trial 
decided, by the jury under the charge of the court, that said 
deed was fraudulent as to creditors, therefore, it was as- 
sumed said deed was void "in toto," of course void as a 
trust deed, between tlie parties, and as to the other cestuis que 
trttsts. 

The trial spoken of was under our statute, with regard 
to claims of property levied on, and the only question in is- 
sue, was, whether or not the property levied upon was sub- 
ject to the executions levied. 

In equity, as between the parties, the general maxim of 
pari delicto does not always prevail. Circumstances of the 
particular case often form exceptions, and where it is ne- 
cessary, relief will be granted. 

The following are among the cases where relief against 
pariiceps criminis has been granted upon the application of 
the grantor. 

See 1 Story^s Eq. Jur. sec. 380, Eastbrook vs. Scott, 3 Ye- 
sey Jr. 456. In this case the assignor (Israel Levi) was 
joined in the bill with one of the creditors. The Master of 



104 SUPREME COUBT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

the roll says, "both Levi, upon principles of public poli- 
cy, and Eastbrook, as a creditor in the deed, have an inter- 
est upon that/^ It will be seen that Israel Levi, under a 
private agreement, executed and delivered two bonds, &c., 
of which the said Master of the Rolls says : " It is impossi- 
ble to deny that the bonds were a fraud upon the creditors, — 
The defendants admit it/' Yet the bonds were ordered to 
be delivered up. See also Austin^s Admx. vs. Winston's 
Extx., 1 Hen. and Mun. 33, Hill on Trustees 164, Williams 
vs. Avant, 5 Iredell 50, Starke's Extx. vs. Littlepage, 4 Ran- 
dolph Repts. 372, 8 Leigh's Repts. 512. 

Without commenting further on this branch of the sub- 
ject, we think the trust deed of 1844, as between the par- 
ties was good and valid. 

The next question is as to the construction given to the 
words of the deed of trust. 

It is contended on the part of the appellee, that this deed 
did by the operation of its terms and according to the in- 
tent of the parties, convey all the property, real and person- 
al, specified in the deed of December, 1845. 

The appellant insists that neither by the terms of the 
deed of assignment, nor by the intention of the parties, was 
the land and mortgaged negroes conveyed therein. 

It is conceded that a deed is to be construed by the res 
gestae. In looking to the circumstances and motives which 
led to this assignment, and the objects to be accomplished, 
we find, that said Samuel Bellamy was embarrassed — ^he 
was expecting executions to be issued against him — he was 
in possession of a plantation and negroes, and his planting in- 
terest was so extensive that he was, according to the testi- 
mony, raising from 250 to 300 bales of cotton per year, and 
according to the testimony of Myrick and answer of E. C. 



TERM AT TALLAHASSEE, 1855. 106 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

Bellamy, there were then several judgments against him 
amounting to |)etween six and $8000, and others soon to be 
recovered — ^that the interest on his bank mortgage had to 
be paid, &e. — ^he feared creditors would come down upon 
liim before money could be realized from his crops and oth- 
er sources, and by seizure of slaves, stock, farming tools 
and utensils, utterly prevent him from paying his debts — 
Iring loss and distress upon his securities and endorsers 
and immediate ruin upon himself. His plantation and the 
negroes, not specially named in said deed of assignment, 
"were mortgaged to the Union Bank — ^the remainder of his 
property was unencumbered. To prevent the sacrifice and 
destruction of the interests of his sureties, endorsers, creditors 
and himself, which would be completely effected by the 
breaking up of his planting operations by a forced sale of 
his unencumbered property, at a ruinous rate, he executed 
to his brother this trust deed. 

The defendant says, " That being anxious to secure him- 
self against losses on account of his said endorsements, up- 
on being informed of the embarrassments of the complain- 
ant, readily agreed to accept the security and indemnity pro- 
posed, and this defendant presuming that it would secure the 
objects avowed, executed and accepted it," 

Here then we have the motives and objects declared on 
both sides, and distinctly understood — on the one side it was 
"to save loss and distress" — ^^'to prevent breaking up his 
planting operations" — ^Ho save his property from sale" — 
On the other, it was to obtain security from loss, and the 
security and indemnity proposed was accepted, to secure 
the *' objects avowed" 

For which objects the said S. C. Bellamy sells, grants, 
bargains, conveys, assigns, transfers and delivers to E. C. 



106 SUPKEME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

Bellamy "all the property and estate, hereinafter described 
and specified, to wit: 

The following slaves, (naming them) also his stock of horses, 
mules, cattle and hogs, together with his household and 
kitchen furniture, and all his personal effects of every name, 
nature and description, corn, wagons, carts, &c. Also his 
crop of cotton of the present year, whether now in bales, 
in the gin house, or in the field, &c. — that the aforesaid 
Edward Bellamy shall have and hold the aforesaid pro- 
perty, upon the following trust, and for these interests, 
objects and purposes hereinafter set forth, that is to say, 
that the said Samuel C. Bellamy shall continue and remain 
in possession of all this property and effects above specified, 
&c. That the said Edward C. Bellamy shall receive all 
the rents, profits, hire and income, derived from the same, 
to wit : the services and labor of said personal property,'* &c. 

Let us here make a rest, and go back and see what the 
''services and labor of said personal property above speci- 
fied" would amount to. Upon reference, we find there were 
five slaves specified, to these add horses and mules, and we 
have all the "specified personal propert}^," from which, with 
the bridge contract, after paying necessary expenses, the 
said Edward C. Bellamy was " to reimburse, secure and in- 
demnify, &c., and to pay the judgment debts which were 
then due and of record, some of which had been recovered 
for several months, and as Samuel C. Bellamy informed him 
constituted the ^^embarrassments'' that must be settled to 
prevent a sale and the breaking up of his planting opera- 
tions, and for the paying, with all due promptness, the in- 
terest on the bank stock. 

Now it cannot be supposed that any two men in their 
senses would have intended, with such objects to accom- 



TERM AT TALLAHASSEE, 1855. 107 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

plish, this assignment to cover no other property than that 
specified. 

To return to tlie said trust deed. We find it further sta- 
ted, as follows: "and it is herein further provided, that all 
the future cotton crops made on said plantation shall 
be appropriated by said Edward C. Bellamy, trustee, to 
the purposes and objects above set forth and declared, espe- 
cially the interest on the Union Bank Stock, excepting part 
of said cotton crop as well as com, also hereby conveyed, 
as shall be requisite for necessary expenditures and subsis- 
tence.'^ What "plantation" is here spoken of? We do not 
find that "plantation'* is referred to any where else in the 
deed — the words ^'estate" and "in the field*' are mentioned. 
Why so particular as to specify twice in said deed the pay- 
ment of the "interest on the Union Bank Stock?" Did it 
matter as to the specified property, whether the interest was 
paid or not? Was it not important as to the planting in- 
terest — the raising of future cotton crops that said "inter- 
est on the bank stock should be paid ?" 

E. C. Bellamy, when the objects of the trust should be 
accomplished, was to return to S. C. Bellamy " all the pro- 
perty conveyed by the said deed, and all his interest and 
right therein either in equity or at law" .Take away an in- 
est in the mortgaged property and what did they mean 
by the term "in equity?" Retain an interest in the mort- 
gaged property and the expression is reconcilable. 

Again, we think we can see here an intention to assign 
in this trust, something beyond the specified property men- 
tioned in said deed. 

The words of the deed itself, viz: "all his personal effects 
of every name, nature and description" would, according 
to the general rule, embrace only things, ejusdem generis. 



108 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Opinion of Coart. 

with those which have been mentioned before — those which 
might not have been supposed to pass under the words there 
made use of. Cavendish vs. Cavendish, 1 Bro. Ch. Repts. 
468 and note (a) Bumey vs. Rout 7, Taunton 79, Ingell vs. 
Nooney 2, Pickering 365. Applying this rule to this deed 
we think the mortgaged slaves and other personal proper- 
ty passed under said deed of trust, but that it did not con- 
vey the Equity of Redemption in the land. 

It is essential to the conveyance of real estate, that 
there be some description of the land. This ingredient is 
wanting in this conveyance. "All the future cotton crops 
made on said plantation" are conveyed. By referring to 
the first part of the deed we ascertain, on what land these 
crops are to be made; it was on the land where the "crop 
of cotton of the present year" "in the field," was, and this 
inference is supported by the bill and answer. 

It is insisted with much earnestness on the part of the 
complainant, that this conveyance of "future crops" 
passes the equity of redemption in said land. We do not 
think so. In our opinion it was only a license or convey- 
ance of all that was necessary to the management of the 
plantation and appropriation of said crops, and for this 
purpose he was entitled to en^ter upon said lands, either in 
person or by overseer, (as it seems he did in the employ- 
ment of Moore,) gather the crops of cotton, and take pos- 
session of them. The objects were that he, E. C. Bella- 
my, was to manage the plantation, have such an interest 
in and control over, the future crops grown on said plan- 
tation, as to save and protect the same from levy under 
execution, and to sell them for the purpose of fulfilling the 
trust. 

We do not consider it important to the trust, how great 



TERM AT TALLAHASSEE, 1855. 109 

Edward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

an estate was conveyed, whether a fee, or only an estate 
dfor a specific object. In our opinion the said E. C. Bella- 
my had a fiduciary interest vested in him as trustee, by 
virtue of said trust deed, in the slaves and lands embraced 
in the said mortgage to the Union Bank, and in order that 
le might perpetuate this fiduciary interest in the future 
crops, and keep the property all of it together until the pur- 
poses and objects set forth and declared were attained, out 
of them, he was especially required to pay the interest on 
the Union Bank stock. Upon his paying this interest on 
said stock note, which was about $1700 per annum, he 
could not be dispossessed of the land (whether of the ne- 
groes is yet a question) by the Bank for twenty years; this 
would make the interest of Samuel Bellamy in the lands, 
at any rate, at the date of the trust deed, equal to a term of 
twenty years use of the property, subject to a rent charge 
(interest) of $1,700 per annum, and this use or interest was 
conveyed in said trust deed, so far at least, as to claim and 
receive the future cotton crops thereon. Thus construe this 
deed and we have a reasonable amount of property from 
which said E. C. Bellamy might hope to obtain the indem- 
nity and security he was seeking. 

Trustees in all cases take an estate commensurate with 
the object of the trust. 7 Mass. 188. And such an estate 
we think was vested in Dr. E. C. Bellamy in the plantation 
and slaves. If he did not have such an interest in said 
land and slaves, then the conveyance of "future cotton 
crops'* made on said plantation, was nugatory. That Sam- 
uel Bellamy was permitted to remain in possession of the 
property, is not deemed inconsistent with the trust. The 
parties did not consider S. C. Bellamy's possession as incon- 
sistent with E. C. Bellamy's working the slaves on the plan- 



110 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of (!ourt. 

tation, for we see E. C. Bellamy on the 10th April, 1845, as 
Trustee, employing Eli P. Moore as overseer, who, without 
any objection from S. C. Bellamy, went on to act as such 
overseer. The com, provisions, &c., necessary to provision 
the plantation, and to the making of the crop, for which pur- 
pose, and not for the use of the grantor, are reserved in 
the deed. Dr. E. C. Bellamy had a right to enter upon the 
premises at any time, for the purpose of this trust, and to take 
away the crops of cotton. The circumstance that Dr. E, 
C. Bellamy permitted his brother to remain on the premis- 
es, in the assignment, instead of being a badge of fraud, 
as between these parties, entitles him to commendation. 

It is urged by the Solicitor for respondent, that in the con- 
veyance of future crops, it is shown : " that it was expected 
that time should he obtained to make the money to pay the 
debts. Be it so; this but strengthens the view we take of 
the deed. Having thus determined that the mortgage slaves, 
and an interest in the lands, sufficient to carry out the ob- 
ject of the trust, were embraced in said trust deed of 
1844, it follows, as a matter of course, they were thus far 
subjects in the deed of 1845. 

We are now to enquire whether he had been divested of 
his fiduciary capacity, as trustee, at the time he made said 
purchases or either of them ? 

How or in what way had he been divested? Had he 
fulfilled the trust, and settled up his accounts? Had he 
paid the interest on the bank stock? Had he paid the 
debts as he had agreed to do? and particularly, had he ap- 
plied the Bridge money to the payment of the Sullivan debt ? 
Had he been discharged from his trust ? 

It is contended that the deed of 1844 was treated by the par- 
ties as void, and that as all the unencumbered property had 



TERM AT TALLAHASSEE, 1855. Ill 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

l)een levied upon, there was nothing left for the trustee to do. 
That E. C. Bellamy treated it as void, and insuflBcient for his 
indemnity and security, appears plausible enough. But there 
is no evidence, that S. C. Bellamy treated it as void. He 
says: "it was represented to him to be void" — "that haras- 
sed by the ruin impending, or which he supposed to he im- 
pending and near at hand he executed "Exhibit C. D." 

Judge Baker, in his testimony says: "When I first heard 
S. C. Bellamy, E. C. Bellamy and Judge Carmack convers- 
ing, the object was stated to be to save and secure E. C. Bel- 
lamy as security for S. C. Bellamy." "The deed of trust hav- 
ing been decided to be fraudulent and void as against cred- 
itors. Judge Carmack was of opinion that the only effectual 
mode of accomplishing the object was for Dr. E. C. Bella- 
my to buy the property and make the best terms he could 
with the creditors. He so advised them." 

Judge Carmack states : " There was no connection what- 
ever between the said deed and the trust deed of 1844, so 
far as the parties themselves understood it." Here then 
is no evidence that they even intended rescinding the trust 
deed; on the contrary, they were separate transactions. Is 
there any evidence to show that either party treated the 
trust deed as void? Does it not all go to show they only 
considered it void as against creditors? Much reliance was 
placed in the argument of this cause upon the position of 
Judge Carmack. It was assumed, that he was the friends 
adviser, attorney and agent for S. C. Bellamy alone, and 
therefore his acts should be binding on S. C. Bellamy. T^o 
proofs do not sustain this position, on the contrary, the te^? 
timony of both Judge Carmack and Judge Baker i-^" t nt 
Judge Carmack was acting as the mutual friend of the par- 
ties — ^he was the adviser of both parties, and tlie Attorney 



112 SUPEEME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

and agent of both parties, therefore no more effect is to be 
given to his acts for one, than the other. Again, the pro- 
perty levied upon had not yet been sold; it was not sold 
until one month, and two months thereafter. What do we 
find E. C. Bellamy doing at the sale? Does he act like a 
man whose fiduciary capacity was at an end? See the 
testimony of Stephens, Myrick and Huss. They testify that 
such was his conduct at these sales, as to lead these per- 
sons and the whole community to understand that he was 
still acting as trustee. He purchases in the property — tells 
persons that he had bought the property at the sale for the 
''purpose of keeping the property together," and keeping up 
the farm to aid his brother Samuel," and so marked were his 
acts, that according to Mr. Stephens, "persons said they 
would not bid for the property because they thought it was go- 
ing to Samuel Bellamy's benefit" A short time after the 
sale, when told by Mr. Myrick that Samuel C. Bellamy was 
dissatisfied. Dr. E. C. Bellamy tells Mr. Myrick, *Hhat he 
was doing it all for Sam's good, and asked him to quiet him" 
Besides, some of the monies paid for these purchases, were 
out of the trust fund, to wit: the bridge contract money, 
and other part applied on executions owned by E. C. Bel- 
lamy. 

Does this look as though said trust was treated as at an end ? 
Was not this all perfectly consistent with the trust deed? 
with the objects of the one, to keep the property together, — 
the other, to secure himself, &c. 

Take all the circumstances together, and put a fair and 
reasonable interpretation upon the acts and transactions 
of both parties, can it be considered otherwise than that 
Dr. E. C. Bellamy continued acting and was acting as trus- 
tee at the time of the purchases and execution of the deed 
of 1845. 



TERM AT TALLAHASSEE, 1855. 113 

Edward C. Bellamy ts. Samuel C. Bellamy's Adm*r. — Opinion of Court. 

It may be said that Samuel C. Bellamy surrendered the 
first deed or destroyed it by executing the second. The an- 
swer to this is, that neither the deed nor the proof show that 
lie intended doing so, and had he endeavored to do so he 
<;ould not have accomplished it. The first deed had been 
duly executed and delivered, and the trtistee had entered up- 
on the duties of the trust under it, therefore, as to his du- 
ties it was as yet executory and not executed; a subsequent 
surrender or destruction of it would not divest the estate con- 
veyed by it. Nelson vs. Halsey 1, John. Ch. 418. 

We aire therefore forced to conclude, that the interest of 
said S. C. Bellamy, herein declared to be embraced in the 
deed of 1844, vested in Edward C. Bellamy under said trust 
deed, for the interests, objects and purposes therein specified, 
and at the time of the said purchases and execution of said 
deed of 1845, the said E. C. Bellamy held the same, as such 
trustee, and that he purchased the same without sanction of 
any court authorizing him thus to purchase, and without 
being discharged from his trust. 

Having decided that Dr. E. C. Bellamy was not, at the 
time of said purchases or either of them, divested of his 
character as trustee, the next question^ is, could he, in law, 
have made such purchases or either of them, without being 
subject to equities that attach to them? 

It is obvious that if these purchases are permitted to stand, 
the intents, objects and purposes of the trust deed are defeat- 
ed, and by whom? By the act of the trustee. He may 
succeed in his object of security and indemnity, but the ces- 
tuis que tmsts are thwarted in theirs. Is this what he cov- 
enanted to dof 

Dr. E. C. Bellamy entered upon the duties of this trust, 
with a knowledge of the trust and confidence reposed in 
9 



114 SUPEEME COURT. 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Conrt. 

him. He occupied from his own choice, the position and 
relation of trustee, and confidential agent, friend and broth- 
er. 

The weight of English authority is against the right of 
the trustee to purcliase the estate of his cestui que trust, and 
is predicated upon reasoning, the force of which must im- 
press itself upon every mind. To permit a trustee to pur- 
chase while he is enjoying the confidence of his cestui que 
trust, it is said, would be to license him to speculate by a- 
busing his situation. His duty obliges him to exert all the 
care and industry necessary to dispose of the estate as ad- 
vantageously for his cestui que trust, as if he were selling 
for himself. His interest would sometimes thwart his du- 
ty, and the infirmity of human testimony, would render it 
impracticable at all times, to prove its violation; hence the 
policy of the rule which divests him of a legal capability 
to purchase. The great difficulty of discovering a disre- 
gard of the rights and interests of the cestui que trust, in- 
duced the determination of the courts that the trustee had 
no right to purchase so long as his vicarial character con- 
tinued. 

It is settled law in the United States that "in all cases 
where a purchase has been made by a trustee on his own 
account of the estate of his cestui que trust, although sold 
at public auction, it is in the option of the cestui que trust, 
to set aside the sale, whether bona fide made or not." See 
note (e) (containing a long list of cases of American courts) 
to Fox vs. Mackreth 2 Bro. Ch. Repts. 337, (Perkins' Edi- 
tion) 1 Story's Eq. Jur. sec. 332. 

In some of the courts of this countrv, the rule has been 
relaxed in purchases by administrators at their own sale, 
and held not void per se but prima facie valid if no unfair- 



TERM AT TALLAHASSEE, 1855. 115 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

ness appears. The reason given for it is, because they sell 
under order of the court authorizing them so to do, and 
account of sales is returned to the court for confirmation. 

Judge Story says: "It may be laid down as a general 
rule, that a trustee is not to do anything which can place 
him in a position inconsistent with the interests of the trusts, 
or which have a tendency to interfere with his duty in dis- 
charging it/' The purchase of the Equity of Redemption 
in the land is consistent with the objects of the trust, to 
wit: the keeping the property together. 

Chancellor Kent asserted this doctrine in Davone vs. 
fanning 2. John Ch. 268, and his judgment in that case 
has been pronounced to be "one of the ablest and most im- 
portant ever delivered by any tribunal of justice." In some 
of the English cases reviewed by him, it was held, that there 
'Were exceptions to the annulling of a purchase. In speak- 
ing of the Chancellor holding such an exception, Kent says : 
**He seems to think the court are only to be satisfied that 
there was no fraud in fact, whereas it has been again and 
again decided and the principle pervades the whole body of 
the cases, that the inquiry is not whether there was or was 
not, fraud in fact. The purchase is to be set aside at the 
instance of the cestui que trust, and a resale ordered, with- 
out weighing the presumption of fraud, on the ground of 
the temptation to abuse, and of the danger of imposition in- 
accessible to the eye of the court." 

The learned Chancellor refers to the case of the York 
Buildings Company vs. McKenzie, 8 Bro. P. C, which was 
decided in the English House of Lords, wherein his doctrine 
was completely vindicated. In this last case, the House of 
Lords, set aside the sale, ordering the purchaser to account 
for the rents and occupation in the meantime, with a lib- 



116 SUPREME COURT. 



Edward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Opinion of Court. 

eral allowance to him for his permanent improvements. 

Again, it does not appear that the property bid off by 
the said E. C. Bellamy was purchased at its full value ; 
on the contrary, the witnesses all agree that the goods at 
the Sheriff's sales sold below their value, and the supposition 
that said E. C. Bellamy was purchasing for the benefit of 
Samuel induced the people not to bid. 

Neither are we satisfied that the consideration of the pur- 
chase in the deed of 1845 was rdequrie. 

The Bill charges that the Bank funds might have been 
purchased at a very great discount, and this is not denied in 
the answer. The proofs are very defective respecting the 
whole of the consideration of the purchase. As to the 
land and negroes, Mr. Euss is conclusive, that they were 
valuable; he fixes no price to slaves — "thinks the negroes 
were first rate negroes, as good as any in the countyj^ The 
witness Carlton also confirms this. A plantation and ne- 
groes that produce from 250 to 300 bales of cotton per 
year, must be considered valuable. It is very clear it 
would not take long to work out $6000, on such a planta- 
tion. 

The complainant in this bill, charges, "that he was not 
consulted or bargained with in relation to the consideration 
expressed in said deed." This is not denied in the answer. 
The debts contracted to be paid by E. C. Bellamy were 
not to be paid in any specific time. It is evident then, 
that were time secured by this arrangement, the property 
would soon pay the $6000 debts. This is a fact considered 
"plausible," against the consideration as stated in Barrow 
vs. Bailey, Fla. Reps. The weight of testimony goes to 
show that the amount of consideration was fixed upon be- 
tween Judge Carmack and E. C. Bellamy. The defendant 



TEEM AT TALLAHASSEE, 1855. 117 

Edward C. Bellamy ra Samuel C. Bellamy's Adm'r. — Opinion of Court. 

in his answer, says, that Samuel Bellamy was intoxicated 
the day before, and then signed a similar deed, but that he 
respondent, would not ^^accept the delivery thereof, on ac- 
count of its being signed and sealed by the complainant in 
the situation in which he then was/' "The complainant 
then came back on the following morning in a sober and 
rational situation, and executed a newly dra^Ti deed, the 
same in substance as the one he had signed the day before." 
It is true E. C. Bellamy says, that both deeds were drafted 
at the request and under the direction of the said Samuel, 
tut the proof is that Judge Carmack was acting for both 
parties. Judge Baker is positive that the agreement con- 
tained the Southall debt, and gives very conclusive reasons 
'why he should testify on that point, yet when we look at 
the agreement it does not contain that debt. Judge Car- 
mack says the ^^plan" was agreed upon between them, 
but he does not say what the amount of the consideration was. 
There is no evidence to show that Samuel Bellamy was con- 
sulted a* to the amount of consideration. Judge Carmack 
says, it was executed in great haste, they were afraid of a 
Bill before the Legislature, &c. Besides Dr. E. C. Bella- 
my in his answer, says: he had been to Tallahassee pro- 
curing an execution to be issued against Samuel C. Bella- 
my, &c. Now how could S. C. Bellam/s object to keep 
his property together be obtained by conveying away the 
whole title of it? Taking these facts together, the remark 
of Judge Carmack, that it was executed in ''great haste" 
appears evident. 

The case presents many extenuating circumstances, but 
they do not in our judgment wholly overcome the inequita- 
ble features of the transaction. 
The conclusion is irresistible, that the deed was hastily 



118 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Opinion of Court. 

entered into, arising perhaps, out of a mutual reliance and 
the judgment and advice of their mutual friend and advi- 
ser, and without any intention of taking any advantage. 

We are of the opinion, that the said purchases should 
be set aside and vacated upon the following conditions, 
viz: That the said Edward C. Bellamy shall be reimbursed 
any monies, with interest, advanced by him in consequence 
of said trust • or purchases, such as the payment of debts, 
expenses or otherwise, and that all and every the security 
debts, mentioned in said deed of trust, shall be satisfied 
and paid, so that said E. C. Bellamy shall be discharged 
therefrom, also any reasonable costs or expenditures inclu- 
ding reasonable fees of two counsel in and about this suit, 
and upon payment of a liberal allowance for his trouble 
in managing said estate, upon settlement of his trust ac- 
counts of all said property, so that he may he fully in- 
demnified, and lose nothing excepting wherein his wilful 
neglect should make him chargeable. 

That upon these conditions being complied with, the 
said Edward C. Bellamy, shall execute a quit claim deed, 
of the said property thus purchased by him, to such person 
as he may be directed by the court. 

That if upon taking an account of any of the property 
thus purchased, it should appear that some of it has been 
disposed of by said E. C. Bellamy, he should only be deb- 
ited with the price for which it was purchased, unless it 
is ascertained that he sold said property at a profit; if so, 
then at the price for which it was sold, but if the price of 
the original purchase cannot be ascertained, then at the 
value at the time of the purchase. The Master should be 
directed to proceed in his duties under said decree, and 
the Receiver required to file accounts, and directed to pay 



TEBM AT TALLAHASSEE, 1855. 119 

Kdward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Dissenting Opinion. 

costs and to pay over monies to said Edward C. Bellamy, 
or otherwise as directed from time to time. As this is but 
an appeal from an interlocutory decree, authorized by 
statute, the cause must be remanded back to the Circuit 
Court for further action, and the decree appealed from 
must be modified and altered in said court so as to con- 
form to the views expressed in this opinion. And the costs 
of this appeal must come out of the trust estate. 



DISSENTING OPINION. 

Hon. T. F. King, Judge of the Southern Circuit, deliver- 
ed the following dissenting opinion: 

The objects sought by the bill in this cause are that Ed- 
ward C. Bellamy, the appellant, be declared the trustee of 
Samuel C. Bellamy, the appellee, for certain property mort- 
gaged to the Union Bank of Florida, the equity of redemp- 
tion, in which was conveyed by the appellee to the appel- 
lant on the 13th December, 1845, by a deed absolute on its 
face; that the appellant be made to account for the issues 
and profits of said property as well as other property held 
by him as trustee of the appellee, under a deed of the 19th 
November, 1844, and that he be removed from his said 
trust. 

A number of other persons, creditors of the appellee, are 
included in the bill as defendants, but none of them seems 
to have appeared so that this contest is confined to Samuel 
C. and Edward C. Bellamy. 

The facts as contained in the pleadings and evidence hav- 
ing been fully set out in the opinion of the court, I will pro- 
ceed to consider those points which I think material to the 
decision of the cause. 



120 SUPEEME COURT. 



Edward C. Bellamy t*. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

I 

The first question that arises is as to the truth of the al- 
legation in the bill that the property conveyed in the deed 
of 1845, was included in, and conveyed by, the trust deed of 

1844. The deed of 1845 conveys to the appellant, Samuel 
C. Bellam/s equity of redemption in sixty-five negroes and 
twelve hundred acres of land mortgaged to the Union Bank. 
In the deed of 1844, there was no specification by name of 
these negroes nor description of this land, nor are they re- 
ferred to as mortgaged to the bank, though in the deed of 

1845, the names of the negroes and the boundaries of the 
land are fully set out. The description of the property con- 
veyed by the deed of 1844 is as follows : "Tony, Sally, Flora, 
Esop, Cinda ; also his stock of horses, mules, cattle and hogs, 
of which he is now in possession and which cannot be more 
particularly described, together with his household and 
kitchen furniture, and all his personal effects of every name, 
nature and description, corn, wagons, carts, &c. ; also, his 
crop of the present year whether now in bales, in the gin 
house or in the field; also all his right and interest in and 
to the contract for constructing the bridge across the Chip- 
ola river, near Marianna." 

It is insisted by the appellee in his bill and by his coun- 
sel in argument, that all his personal property whatever, 
passed under the general terms "personal effects of every 
name, nature and description." The authorities show 
however, that all property of the nature of that referred 
to in general terms does not necessarily pass, particularly 
when the terms are followed by specifications as in this 
case. The meaning of such general words in a contract 
is to be arrived at by measuring them with the rule of in- 
tention, and if necessary they will be narrowed and short- 
ened 80 as to conform to the scope and design of the in- 



TERM AT TALLAHASSEE, 1855. 121 

Sklward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dissenting Dpinlon. 

strument, as on the other hand words of a signification 
more limited when standing by themselves will be enlarged 
to meet the purpose as gathered from the other words of 
the contract. 

Was it intended then by the deed of 1844 to convey in 
trust the lands and negroes contained in that of 1845 ? It 
'will be observed that the appellee in his bill avers that the 
slaves only were included in the words, "all his personal 
effects," Ac, and at the same time he alleges that both land 
and negroes and all the profits from them, were the subject 
of the trust, and prays that the appellant shall render an 
account of his management of the whole. Why the land 
should not have been included in the deeds as well as the 
slaves, if both were the subject of trust, is not explained. — 
The land was required for cultivation by the negroes, and 
the negroes were required for the land and they were both 
included in the same mortgage to the Union Bank. The 
land was as sucli liable to the grasp of creditors as the ne- 
groes, and why he should have desired to protect the one 
more than the other by covering it up in his trust deed, it 
is difficult to perceive. 

But it was contended in the argimient that to give eifect 
to another provision in the trust deed, not only the negroes 
must have passed but the land also, and without such a con- 
struction the objects of the trust must have failed. This 
provision is that "all the future cotton crops made on said 
plantation shall be appropriated by said Edward Bellamy, 
trustee, to the purposes and objects above set forth," &c. 
The proposition to the Counsel is true that if the ends of 
the trust required it, the land and the negroes botli passed 
to the trustees as well as the crops. Green vs. Biddle 8. 
Wheat. 1, Earl vs. Grim 1 John. Ch. R. 494 and cases there 



122 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Dissenting Opinion. 

cited. Was it necessary then that the trustees should 
have them, as well as the crop? I think not. The plain 
reading of the clause is that the appellee should appropri- 
ate the crops to certain purposes, not make them. His 
trust was to apply them, when "made," and put into his hands, 
in payment of certain dehts, and when they were so ap- 
plied all was done that he had promised. There was no 
obligation on his part to assume the care, trouble and res- 
ponsibility of managing the plantation and making the crops 
as well as applying them. 

It appears from the answer that the appellant in 1845, 
made a crop with the 65 pegroes, and on the appellee's 
plantation, which are the property conveyed in the deed of 
1845, and that he paid the wages of the overseer and other 
current expenses of that year. It is contended that these acts 
serve as a guide to the intention of the parties and show 
the design to have been that the appellant should take this 
property by virtue of the deed of 1844 as well as that spe- 
cified in it. 

On examination of books on evidence, I nowhere find so 
broad a doctrine laid down as that contracts mav be con- 
strued by the sul)sequent acts of the parties. In the case 
of Cooke vs. Boot he, 8, Cowp., the question was, whether in 
a lease with a covenant of renewal, its terms authorized a 
renewal in sul)sc([uent leases. The court allowed evidence 
to show that there had been several successive renewals, 
holding that the parties, by their practice, had placed their 
own construction on the covenant and were bound bv it. — 
It will be observed that in this case the court was constru- 
ing an ancient deed. When the same question arose in 
the case of Iggulden vs. May, Lord Mansfield remarked of 
Cooke vs. Boothe, that he thought it was the first time that 
the acts of the parties to a deed were made use of in a court of 



TERM AT TALLAHASSEE, 1855. 123 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

of law to assist in the construction of that deed. Lord Eklon, 
when the case of Iggulden vs. May was he fore him in Chan- 
cery, 9 Yes. 325, over-ruled the doctrine in Cooke vs. 
Boothe, and none of the cases since, that I can find, conflict 
with his ruling. 

In the cases cited in argument of Livingston vs. Ten 
Broeck 16, Johns. 22, Atty. Genl. vs. Parker, 3 Atk. 396. Atty. 
Genl. vs. Foster 10 Yes. 338, and Weld vs. Hornby 1 East, 
199, the question was upon the construction of ancient 
deeds and charters in which by a well settled rule, usage 
may be proved to show that, which because of their anti- 
quity cannot be otherwise understood. In the most recent 
Case of French vs. Cochart 1 Comst. R. 96, but one of the 
eight judges who sat in the cause laid down rule con- 
tended for, and he relied upon the four cases jtst referred 
"to. The question l^efore the court did not require them to 
go 80 far and they held only, the contest being as to the 
purposes for whicli a stream of water was reserved, that 
evidence should be admitted to show that one of the par- 
ties knew at the execution of the deed, the fact of the exis- 
tence of a mill and dam on the stream and of the manner 
the stream was affected by their use. In Bradley vs. Wash- 
ington Steam Packet Co., also cited, the language of the 
court is "that in giving effect to a written contract by ap- 
plying it to its proper subject matter, extrinsic evidence 
may be admitted to prove the circumstances under which 
it was made, wherever without the aid of such evidence, 
such application could not be made in the particular case." 
In none of these cases was evidence admitted of matters 
that transpired after the contract was completed to show 
its meaning. 
After looking into the authorities I see no reason to de- 



]24 SUPEEME COUET. 

Edward C. Bellamy tb. Samuel C. Bellamy's Adm*r. — Disaentliiir Opinion. 

part from the opinion already expressed by this court in 
the case of Fry vs. Hawley, 4 Fla. B. 258, that the evidence 
of the subsequent acts of the parties to a contract is not ad- 
missable to construe it. It would be a novel idea indeed if 

• 

when a contract is entered into and the parties have pro- 
ceeded under it for some time, they disagree and refer their 
dispute to the adjustment of a court, the judge should be 
told that it is already construed by the action of the par- 
ties, and though one or both may have mistaken their rights 
yet they have settled its meaning by what they have done. 

We cannot, then, look at the acts of the parties after the 
execution of the deed of 1844, to ascertain whether they 
meant to include in it the lands and negroes conveyed by 
the deed of 1845. It must be read bv the covenants on its 
face alone. If the defendant took possession of the planta- 
tion and negroes, made a crop and paid the expenses, it was 
not in virtue of the authority given him by any clause in 
the deed of 1844, but by a mistaken construction, a subse- 
quent agreemeut or a wrongful assumption of power, neith- 
er of which is complained of or is before the court. 

If we consider moreover the design in making the trust 
as revealed by the bill and the deed, it will be' seen that 
there was no necessity for including in it the plantation and 
negroes in onler to reach the ends sought by the parties. — 
This property being mortgaged to the bank, was already 
secure from the grasp of creditors. The fear was as to 
the unencumbered estate, all of which is specified in the 
trust deed. The five negroes, the stock and materials of 
the plantation and the crop of 1844, already made could be 
seized at any moment by an execution. The proceeds 
of the bridge contract were subject to the same fate 
as soon as they were realized, and the future crops 



TEE MAT TALLAHASSEE, 1856. 125 

KTd C. Bellamy yb. Samuel C. Bellamy's Adm*r. — Dissenting Opinion. 

soon as they were made. It was the ^^foreed sales 
this unencumbered personality, to use the words of the 
ellee in his bill, that would break up his planting oper- 
ns and prevent him from saving his creditors and him- 
. This was all of his property in any danger and he 
jred it as he thought by a deed of trust, 
'here is a provision in the trust deed that Samuel C. Bel- 
y "should continue and remain in possession of the pro- 
by." The rule is that a deed shall be so construed that 
K>s8ible every part of it shall stand. What sense or ob- 
would there have been in this clause if E. C. Bellamy 
to have the possession and control of the property? 
f the appellant had sued Samuel C. Bellamy under this 
1 for the possession of the plantation and negroes, he 
Id have been met by the decisive reply "the plain read- 
of your covenant with me is, that I am to keep posses- 
L of all my property while you are to have and protect 
legal title to all my unenciiml)ered estate, and to take 
proceeds of the wliole as they come from my hands and 
them in the manner we have designated, 
leading this deed then by the letter of its terms or by the 
jr guide, the scope and design of the parties, I do not see 
' we can say it includes the plantation and negroes, the 
larger portion of. the grantor's property, 
'he determination of tins question carries along with it 
argument based on its affirmation, to wit: that the pro- 
:y in the deed of 1845 being embraced in the deed of 
4, the deed of 1845 is void, because the trustee could not 
of his cestui que trust, or at any rate voidable at the op- 
L of the cestui que trust. Admitting all the property to 
e been conveyed in the deed of 1844, I hardly think that 
proposition so broadly stated can be applied to the facts 
;his case. 



126 SUPREME COURT. 



It is true, as a general principle, that the trustee shall 
not buy his cestui que trust, but it is equally true that 
there are exceptions to the rule, and such sales have in a 
number of instances been sustained by the courts. Mr. 
Hill, in his work on trustees, p. 535, says "such sales have 
frequently been supported in equity where it has been shown 
that the fiduciary relation of the purchaser had absolutely 
ceased previously to the purcliase, or that the purchase 
was made witli tlie full concurrence and consent of the per- 
sons beneficial Iv interested, who in that case must of course 
liave been competent to give their consent." The authori- 
ties he cited are Downs vs. Gravebrook, 3 Mer. 208. Ran- 
dall vs. Ewington 10 Ves. 428. In Coles vs. Trecothick 9 
Ves. 246, Lord Eldon held, "that a trustee may purchase 
from his cestui que trust, provided there is a distinct and 
clear contract, ascertained to be such after a jealous and scru- 
pulous examination of all the circumstances, that the cestui 
que trust intended the trustee should buy, and there is 
no fraud, no concealment, no advantage taken by the trus- 
tee of information acquired by him in the character of trus- 
tee." To the same effect is tlie language of the court in the 
case of Morse vs. Royal 12 Vesey 373. 

The danger guarded against by the rule is that the 
trustee, from his relation to the property confided to 
him, will acquire such information of its value as will 
enable him to make a profit in purchasing from his cestui 
que trust, for if by such information he take advantage of 
his cestui que trust, his conduct is inconsistent with the 
trust, for in assuming it, he promises to make the most of 
it for his beneficiary. The rule is wise and salutary and 
has, without doubt, often prevented fraud, but when the 
reason for the rule does not exist, it should not be applied. 
It ought not to be applied when parties by an express agree- 



Edward C. Bellamy ts. Samael C. BeUamy's Adm'r. — Dissenting Opinion. ^ 



TERM AT TALLAHASSEE, 1855. 127 

ISdward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Dissenting Opinion. 

ment or virtually have laid aside the fiduciary relation and 
agreed to buy and sell. They then treat with each other 
at arms length. If after the trust has been created, the ces- 
tui que trust chooses to create a new relation and to stand 
towards him in the character of vendor, I see no reason why 
a sale between them should not be sustained as well as one 
from a trustee to a third person. 

The prohibition by the general rule is that the trustee 
shall not buy from himself. He does not do so where there 
is a deliberate contract of sale between him and his ces- 
tui que trust. Nearly all the cases on this subject in the 
books, are where the trustee at public sale has bought pro- 
perty entrusted to him with directions for its sale, either to 
pay debts or to make distribution. Such was the purpose 
of the trust in Davon vs. Fanning 2 John Ch. R., decided 
by Chancellor Kent, and in all but one of the leading Eng- 
lish cases which he there reviews. In all of them with two 
exceptions, in one of which the sale was sustained, tlie pur- 
chase or other transaction of the trustee in- regard to the 
trust property was not with the cestui que trust and when 
there was no understanding with him or previous consent 
given. It may be remarked here that in Davon vs. Fan- 
ning, Judge Kent does not lay down the rule that the trus- 
tee may not buy in any case. He only recognizes the gen- 
eral rule "that a trustee to sell cannot himself purchase." 
In the case before us the relation of the appellant to the 
property was rather that of a dry trustee, or one who mere- 
ly holds the title, than that of one witli power to sell. By 
the trust deed he had no power to dispose of the property. 
On the contrary, it was to be returned after a time to the 
appellee. All the trustee's power was to hold the legal ti- 
tle and receive the rents and profits and apply them. There 



128 SUPREME COURT. 



Edward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Dissenting Opinio 

is no question that one having the title only may buy. Hi 
on trusts 537. The leading cases in which sales have bee 
made directly from the cestui que trust to the trustee, ai 
those of Fox vs. McReth, 2 Bro. Ch. R. 400, Davison v 
Gardner, Sug. Vend. 436. Coles vs. Trecothick 9 Ves. 23; 
Monroe vs. Allain 2 Caine's Cas. in error 183. In Fox v 
McReth the sale was not sustained. It appeared that M< 
Reth had obtained information, to what extent was not pr< 
cisely known, from an agent sent by him at the expense ( 
the cestui que trust, to value the estate. Soon after an 
while trustee, he bought it from Fox for £39,000 and shor 
ly after sold it for £50,000. In Davison vs. Gardner, tl 
sale was sustained by Lord Hardwick because it was fa 
and for full value. In Monroe vs. Allain, the execute 
with power to sell, purchased from the widow who was a 
so devisee and executrix. Circumstances were relied on 1 
show that neither she nor her friends were acquainted wit 
the nature or extent of the riglits she undertook to conve; 
and the sale was set aside. In Coles vs. Trecothick, Loi 
Eldon sustained the sale, though for several thousan 
pounds less than the value of the property, and he obser 
ed "in this case you are not met by tlie danger that tl 
trustee may buy with knowledge, acquired at the expem 
of the cestui que trust, that the value may be considerabl 
more than he is aware of." In that case it was apparei 
that the cestui que trust had fully as much information i 
his trustee. The difficulty in these cases was as to tl 
question whether the trustee by being trustee, obtained ii 
formation of the value of the property which gave him a 
advantage over his cestui que trust. When the court wj 
satisfied that he had no such advantage, the sale was hel 
good. 



TERM AT TALLAHASSEE, 1855. 129 



Kdward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

If we take it then as proved that the property in the deed 
of 1845 was held in trust under the deed of 1844, and was 
sold by S. C. to E. C. Bellamy while the trust relation ex- 
isted^ do the facts and circumstances in the record bring 
t:he sale within the rule or make it an exception? To de- 
±«rmine this, we should look at the knowledge of each of 
"the parties of the value of the property as derived from 
"their position towards it previous to, and at the time of the 
Bale, and from its nature and situation. It appears from the 
record, that for several years before the sale, S. C. Bellamy 
liad been in possession of the land, had cleared most of it 
and had made crops on it with the negroes, — that in 1841 
lie mortgaged both land and negroes to the Union Bank 
for 322 shares of stock, worth $32,200, and received a loan 
of two thirds of the amount of his stock, or $21,900, the in- 
terest on which, when the deed of 1845 was executed, was 
$5000. The appellee had thus owned the plantation and 
negroes for years — had been with them, had made crops 
with them and had encumbered them with mortgages, to 
do which, a valuation was necessary, who could have had 
better information of the value of his property than he ? Who 
so familiar with the age, the health, the strength and capacity 
of each negro on his plantation as the owner? Who knows 
so well the quality of each acre of land? It appears fhat 
the appellant had made a crop with the negroes and land 
the year the deed was made, and we know of no other 
source of information he had as to their value. It is hard- 
ly possible he could have been so well informed on the sub- 
ject as the appellee. It was said moreover in argument, 
that the consideration in the deed was so grossly inade- 
quate as to be evidence of advantage taken by the trustee, 
that at the time of the sale the stock of the bank was much 

10 



130 SUPBEME COURT. 



Edward C. Bellamy tb. Samuel C. Bellamy's Adm*r. — DlMentinir Opinion. 



below its nominal value, that the property could have been 
released from its encumbrances for much less than the a- 
mount of the mortgage and the money loaned on it, and that 
by keeping down the interest on the loan the property could 
easily have worked itself out of debt. We have no evidence 
to ascertain on what terms it may have been released from 
the bank. It appears that the bank was insolvent and con- 
sequently its stock and notes must have been below par, 
but I am aware of no rule by which courts are bound to 
know of the rise and fall of depreciated bank stock and pa- 
per, as they must know the date of a statute or on what day 
of the week a particular day of the month came on. The 
amount of stock due 20 years after was $32,000, of the loan, 
with the interest on it, $27,000, and the consideration of the 
deed $6000, making in all $65,000 as the amount to be 
paid off by the property taking the bank stock and loan at 
par. The value of the land and negroes at the time of the 
sale is uncertain from tlie record. Judge Baker, a witness, 
says land could not then be sold readily for cash at 
anything like its value, and negroes, though saleable, were 
low; otlier witnesses differ as to their estimates of the land. 
Taking though, at what I consider a liberal valuation, six 
dollars an acre for the land and $300 each on an average 
for tlie negroes, and the whole would have been worth $26,- 
700. As to the argument that it was twenty years before 
the mortgage was due, and the payment of the loan could 
have been delayed by keeping down the interest, it must 
be remembered that suit was then brought for this loan 
which would soon become a judgment, and then the pay- 
ment of the loan could no longer be stayed by paying the in- 
terest, but the appellee would have been at the mercy of th 
bank with its execution of $27,000. The best evidence w 



TERM AT TALLAHASSEE, 1855. 131 

£dward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

have of the then value of this property is derived from 
Judge Carmack, a witness. He was the attorney of both 
parties in the transaction, was several days before the bus- 
uiess was completed, consulting and advising with them, 
a.nd his integrity and capacity are eulogized on botli sides. 
His opinion was that six thousand dollars was a fair price 
:Cor the land and negroes, taking in view the encumbrances 
on them. It should be observed that inadequacy is set up 
in the bill as one of the grounds of relief, and is denied by 
^he answer, yet there seems to have been no effort to prove 
'the fact. There could have been no great difficulty in 
:finding out the value of these negroes and land in 1845, or 
^what was the worth of the bank stock and paper. The in- 
ference is that the appellee was satisfied the inadequacy 
could not be proved. Inadequacy of price however is not 
sufficient alone to set aside a sale. Hill on Trustees, 537 and 
cases therein cited. White vs. Walker 5 Fla. K. 487. It should 
be observed moreover with regard to this sale that, wheth- 
er the deed of 1844 was void between the parties or not, af- 
ter it was declared so as to creditors, the parties so consid- 
ered it. 

In the evidence is a receipt by Samuel C. Bellamy to E. 
C. Bellamy for $1357 in part payment of the bridge con- 
tract. The proceeds of this contract were to have been 
applied under tlie trust deed in the payment of debts. Why 
should this money have been paid by E. C. Bellamy or re- 
ceived by his brother if they did not consider the relation 
between them under the deed as dissolved? The receipt 
of it was a virtual resognition by S. C. Bellamy that his 
brother was no longer bound to perform the covenants of 
the deed, but was obliged to return all he had obtained un- 
der it. They therefore considered themselves as standing 



132 SUPEEME COUET. 



Edward C. Bellamy tb. Samuel C. Bellamy's Adm*r. — DiBsenting Opinion. 

in the same position to each other as before the trust was 
conferred and dealing at arms length. 

'Looking then at all the facts and circumstances appear- 
ing on the record, I am led to the conclusion that the de- 
fendant couid not have derived any information from his 
relation to the property, had it in fact been held by him in 
trust, which could have given him any advantage in a pur- 
chase from his cestui que trust, and that this sale would 
have come under an exception to the rule that the trustee 
shall not buy of his cestui que trust; that in the words of 
Lord Eldon, it is an instance where there was a clear and 
distinct contract that the cestui que trust intended the trus- 
tee should buy, and where there was no fraud, no conceal- 
ment, no advantage taken by the trustee of information ac- 
quired by him as trustee. 

Another ground assumed in the argument, of this cause, 
was that if the property conveyed in the deed of 1845 was 
not included in the deed of 1844, and was not bought by 
the appellant as trustee, still the record discloses the fact 
that a secret tmst existed between the parties at the execu- 
tion of the deed of 18-15, and that therefore E. C. Bellamy 
should be held as trustee for that property and made to ac- 
count for it. 

Before considering the testimony on this point, I will ad- 
vert to the character of the evidence which courts require 
when an instrument of writing is sought to be impeached 
by parol proof. The P]ngli8h rule is to allow such proof, 
only in cases of fraud, mistake or accident, and if relief 
should be prayed against an absolute deed on the ground 
that it was intended as a mortgage or trust, some writing 
would be required before the charge in the bill could be 
sustained. A leading case is that of Leman vs. Whitty, 



TERM AT TALLAHASSEE, 1866. 133 

Edward C Bellamy ▼■. Samuel C. Bellamy's Adm*r. — Ditsenting Opinion. 

t Buss, 423. It was there clearly made out by parol evi- 
lence, that the deed absolute on its face, was in fact given 
without consideration, and solely for the purpose of ena- 
)ling the grantee, who had better credit, to obtain money 
'OT the grantor. The bill prayed that the devisee of the 
^antee, who had by will the land conveyed in the deed, 
)e declared a trustee for the grantor, but the court refused 
the evidence because not in writing. In Cripps vs. Jen., 
J: Bro., Ch. R., 472, relief was granted, but a writing was 
produced in which the defendant acknowledged himself to 
be a trustee. In Imham vs. Child, 1 Bro. Ch. R., 92, a de- 
feasance was left out of the deed, on the idea that it would 
make the transaction usurious. The court refused parol 
B^^dence of an agreement that the property was to be re- 
ieemable. There is a diversity of opinion on the subject 
in the courts of this country, but the larger number of 
them, including the Supreme Court of the United States, 
md the Circuit Court of the United States for the First 
Circuit, allow the fact to be proved by parol evidence, that 
1 deed absolute on its face, was intended as a mortgage or 
trust, and they hold that the admission of such evidence 
loes not violate the Statute of frauds. It is perhaps unfor- 
tunate that our courts have departed from the English 
nile for the admission of such proofs; where the design of 
;he parties was not to make the instrument defeasible on 
ts face is certainly in contravention of the policy of the 
Statute of frauds and the general rule of evidence as to 
writings, which regard the instrument as the depository of 
dl the intentions of the parties concerning the transaction, 
md are designed to prevent a resort to the "slippery 
nemory of witnesses," and to withhold temptation to fraud 
ind perjury among those who would gain by destroying 



134 SUPEEME COURT. 

w 

Edward C. Bellamy vs. Samuel C. Bellamy's Adm*r. — Dissenting Opinion. 

the deliberate work of their own hands. But the opinion 
seems to be in the courts of tliis country, that justice 
would be more often attained by allowing parol proof of 
a reservation outside of the writing, and by that opinion, 
sustained as it is by such numerous and high authorities, 
I am willing to be governed. But while assenting to it, I 
think the evidence to establish a meaning different from 
the face of the paper should be of the strongest charac- 
ter. The design is virtually to add another clause to 
the writing, the effect of which in many instances would 
be to strip the grantee of all the tights he has acquired 
when the paper is read without the proposed clause. The 
evidence should be as conclusive as that required to re- 
form writings, on the ground of fraud, accident or mistake, 
for the end and effect in both cases is the same, that is, 
to break down entirely or impair the force of that which 
the law declares to be the best test of the deliberate and 
last intention of the parties in a transaction. Lord Hard- 
wicke said tliat there must be the strongest proof possi- 
ble. Lord Thurlow, that it must be strong, irrefragable 
proof, and that the difficulty of the proof was so great 
that there was no instance of its prevailing against a 
party insisting that there was no mistake. In Townshend vs. 
Strangroom, 6 Ves. 328, Lord Eldon observed that those pro- 
ducing evidence of mistake or surprise, either to rectify a 
deed or calling upon the court to refuse a specific perform- 
ance, undertook a work of great difficulty. In Gilespie 
vs. Moore, 1 John. Ch. R., 597, Chancellor Kent says, the 
cases concur in the strictness and difficulty of the proof, 
and in L3rman vs. United Ins. Co., John. Ch. R., 364, 
where the bill prayed that a policy of insurance be a- 
mended, "no amendment was ever made without an 



TEEM AT TALLAHASSEE, 1855. 135 

'Edward C. Bellamy ▼«. Samuel C. Bellamy's Adm'r. — Dlaaenting Opinion. 

absolute conviction of the truth and precision of the real 
agreement." Judge Story says, **if the mistake is clear- 
ly made out by proofs entirely satisfactory, equity will 
Teform the contract so as to make it conformable to the 
precise intent of the parties. But if the proofs are 
doubtful and unsatisfactory, and the mistake is not made 
entirely plain, equity will withhold relief upon the ground 
that the written paper ought to be taken as a full and 
correct expression of the intent, until the contrary is es- 
tablished beyond reasonable controversy.'' 

There are certainly admissions and facts developed dn 
the record which give rise to a very serious doubt whether 
it was the intention of the parties to stand towards each 
other in the relation of vendor and vendee. Samuel C. Bel- 
lamy was in the situation of most persons, who convey a- 
way their property by an instrument, which is intended on 
its face to create the impression with the world, that it is 
irrevocable, when there is a secret understanding, that it 
shall afterwards be annulled. He was deeply in debt and 
greatly harassed in mind. He had already made an effort 
to secure his unencumbered estate which had failed. Exe- 
cutions against him, greater than he could pay, were al- 
ready in the hands of the Sheriff, and others to a large a- 
mount were hastening on. Unless some cover was found 
his future crops, as they were matured, would he seized 
and even his equity of redemption in the lands and negroes 
were in danger from these executions, for it was supposed 
that a bill then before the Ijcgislature would be passed 
subjecting such equities to a sale at common law. Expe- 
rience tells us, that it is the common recourse of men so em- 
barrassed to devise secret trusts, that something may be 
saved from their ruined fortunes, and they naturally look 
to a brother or other near relative to aid them in their 



136 SUPEEME COUET. 



Edward C. Bellamy ys. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

trouble. In this dilemma, it appears he desired to make 
another deed of trust for an object similar to the first, 
and he proposed it to' his brother. These circumstances 
certainly indicate his intention to save the property for 
himself. In connexion with them, may be taken the re- 
mark of E. C. Bellamy to Judge Baker after the trust 
deed was decided to be void, that he wanted something 
the lawyers could not break, and his further testimony 
that the object for which E. C. Bellamy and his brother 
were consulting with Judge Carmack, was avowed to be 
the security of E. C. Bellamy on his liabilities for Samu- 
el. Also, E. C. Bellamy remarks to Stephens and Myrick, 
after the deed of 1845 was made, that he was doing the 
business for Sam's good — that he was aiding his brother 
who was not calculated to attend to his own business, and 
that the five negroes mentioned in the trust deed were 
bought by him at the sale in 1846 for his brother. These 
things go to show that he did not look on himself as the 
owner of the property. The admission, however, should 
be taken with much allowance, for they are, at best, a 
weak kind of evidence, and in most cases, can be ex- 
plained only by him who makes them. If they had been 
stated in the bill as required by English practice, the ap- 
pellant may have given them a version entirely inconsis- 
tent with the idea that he considered the property his 
brothers. To support the presumption of a trust are al- 
so the offers of the appellant to annul the deed on be- 
ing indemnified for his payments and liabilities on account 
of his brother. All his statements thougli should be ta- 
ken together. He says, in his answer, that the oifers were 
made after S. C. Bellamy had threatened to do everything 
to injure him in purse and reputation, and even by taking 



TERM AT TALLAHASSEE, 1855. 137 

Kdward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dlssentliig Opinion. 

his life, and his object in extending them was peace, avow- 
ing however, at the same time, his full title to the property. 
Further, it does not appear consonant with the owner- 
ship of the property that all the security debts in the obli- 
gation accompanying the deed, were contained in the trust 
deed of 1844, and that some of the debts paid after the deed 
of 1845 was made, were included in the trust deed and not 
ui the obligation, also that after the execution of the deed of 
^845, the appellant should have gone on and paid other 
olaims than those for which he had rendered himself liable 
xn the obligation and paid them to an amount greater than the 
consideration of the deed. The reason for all this is by no 
xneans clear. It may have been that he was acting under 
«n arrangement with his brother subsequent to the execu- 
*tion of the deed, or that under the fear of an attack on the 
deed from the creditors of his brother, and apprehensive 
for it, of a fate similar to that of the trust deed, of which 
he . had had such recent and unpleasant experience, he 
judged it safest to buy up the claims against his brother. — 
But there is surely great room to presume that his aim was 
to carry out the design of the deed of 1844, which provided 
for the paythent of all the debts. 

Again, it may be asked why did S. C. Bellamy thus con- 
vey from himself every vestige of his property? What 
profit was there in stripping himself of every thing? — 
Ordinarily in cases of this kind, the expectation is to save 
something in the end, and if there is no hope of this, the 
owner is indifferent upon what shore the wreck of his es- 
tate may be cast, or who will profit by its fragments. It 
may be considered in this instance as a motive for an 
absolute sale, additional to that usually prevailing in such 
misfortunes, that the appellant, a brother, was liable as 



138 SUPEEME COURT. 



Edward C. Bellamy ts. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

well as others, who he says without pecuniary considera- 
tion, and as an act of friendship and kindness to himself, 
were implicated for him as securities and endorsers; that 
he had nothing left but this equity of redemption, and this 
might also be levied on and sold. Under these circum- 
stances it may be, urged by a generous impulse to save 
those for whom he felt a deep gratitude in preference to 
all others, his brother refusing to have anything more to 
do with trusts he resolved to make a sale, and save his 
friends, if he could riot save himself. It may have been 
also without a word said on the subject, that he had a se- 
cret hope and belief, his brother, if he succeeded with his 
property, would restore it to him. 

Taking all these circumstances together, there is certain- 
ly much to induce the suspicion that an understanding 
existed between the parties, that the ownership of the 
property should still be in S. C. Bellamy. It might be re- 
membered though, that in opposition to this suspicion are 
the absolute deed and the sworn answer of the appellant. 
He positively denies that there was any connection be- 
tween the two deeds, and avers that the last was a bona 
fide, absolute conveyance, free from any secret trust, and 
Judge Carmack testifies that there was no connection be- 
tween the deeds, that both parties protested there should 
be no secret agreement or understanding, and that the 
deed was undoubtedly intended by them as an absolute and 
unqualified conveyance. It should be noticed that in all 
appellant's conversations, he never says that he was the 
trustee, or mortgagor, or agent of his brother. He avows 
that his object in the purchase was to secure himself, and 
that he afterwards offered to annul the deed if fully in- 
demnified ; but he nowhere admits that he did not have 



TERM AT TALLAHASSEE, 1855. 139 

Xdward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

the full title to the property and avers the contrary. There 
is not a word of direct proof in the record, either of a 
written or verbal understanding of the parties, that there 
should be a condition to the deed. If it did exist, we can 
find it out alone by the circumstances that transpired af- 
ter the deed was made, and which have just been referred 
to. The cases of Morris vs. Nixon, 1 How. R., 118, and 
Jenkins vs. Eldridge, 3 Story R., 181, were cited to show 
a similarity between the evidence on which relief was 
granted in those cases, and the facts in this. In Morris vs. 
Nixon, the plaintiff applied to the defendant for a loan. — 
The design of a loan was established beyond doubt by a 
letter of the defendant and by the testimony of witnesses 
who assisted in the negotiation as to matters which occur- 
red before the affair was completed. The mode adopted 
to secure the loan was by an absolute deed of the land, 
and a bond for the repayment of the money borrowed. The 
proofs that the deed was intended as a security for the 
loan were perfectly satisfactory. In Jenkins vs. Eldridge, 
it was alleged in the bill that there was a distinct under- 
standing before the deed was made, tliat the land should be 
reconveyed, after indemnification to Eldridge for his pay- 
ment, in behalf of Jenkins and a suitable compensation 
for his services about the property. This allegation was 
fully sustained by the evidence of the counsel of Jenkins 
in the transaction, and other witnesses. One of them tes- 
tified that it was agreed no bond should be given by Eld- 
ridge, but that he should make a declaration or memoran- 
dum of trust, which he was to keep among his papers, 
and afterwards on being questioned, Eldridge replied, that 
he had no objection to making such declaration and would 
do so immediately. Another witness stated that Eldridge 



140 SUPREME COURT. 



Edward C. Bellamy vs. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

had often said to him that he held the estate in trust for 
the benefit of Jenkins, that he had often spoken of it in 
terms as Jenkins' property, and that he was merely act- 
ing as an agent and meant to be well paid for his servi- 
ces. In the case before us there is no evidence whatever 
of a previous agreement to hold the property in trust. — 
Judge Carmack tells us that both parties declared there 
should be no such agreement, and the defendant avers in 
his answer, that he bought the property absolutely. There 
is no evidence of acknowledgment in terms, in conversa- 
tions between the parties or between the appellee and oth- 
ers of such an understanding, or that E. C. Bellamy ever 
admitted he was acting as a trustee or agent. There 
may have been a hope or expectation in the breast of S. 
C. Bellamy, that his brother would restore the property, 
but that hope or expectatio^ alone was not sufficient to 
make this a trust deed. There must have been not only the 
intention on his part to make it a trust, but such must have 
been the design and understanding of E. C. Bellamy. — 
Wliere is the clear and satisfactory evidence to convince 
the mind that there was such an understanding by him? 
I must confess I have not been able to find it on the record. 
There is reason for conjecture and suspicion, a strong sus- 
picion, I admit, but it is not fully proved. If we take it as 
proved that S. C. Bellamy designed a trust, but it is not 
clear that E. C. Bellamy designed it, how could a court 
give relief against the face of this deed which it is the 
policy of the law to regard as the best test of the deliber- 
ate and last intentions of the parties? If a court were to 
order a reform of the deed to meet the intention at the 
time of its execution, what would be the defeasance ac- 
cording to the proofs in this record? If a mortgage. 



TERM AT TALLAHASSEE, 1855. 141 

Xdward C. Bellamy vg. Samuel C. Bellamy's Adm'r. — Dissenting Opinion. 

should then a provision for a foreclosure and sale, and if 
for a sale, after what time should it be made and for what 
amount should it be a security? If a trust, for what pur- 
pose? Should the appellant be compelled to pay the 
debts mentioned in the obligation or all the debts of his 
brother as provided for by the trust deed ? In Morris vs . 
Nixon and Jenkins vs. Eldridge, there was no difficulty 
from the evidence had a reform of the deeds been prayed to 
have changed the one to a mortgage and the other to a trust. 
It is not the province of a court to make writings for par- 
ties such as they probably designed, but to aid them in car- 
rying out their intent where there is no doubt as to what 
they meant. If the proofs are doubtful, then in the words of 
Judge Story, "equity should withhold relief upon the 
ground that the written paper is to be taken as a full and 
correct expression of the intent, until the contrary is es- 
tablished beyond reasonable controversy. 

It may be that in holding this deed to be absolute, the 
design of the parties would not be effected, and 
right and justice might not be administered accord- 
ing to the true state of the facts, existing at the time 
the deed was made; but if so, however, much we might re- 
gret it, this would be but one among a multitude of instan- 
ces where justice could not be done by a court, because 
of the insufficiency of the proofs. Courts of equity are 
governed by the same rules of evidence as courts of law, 
and though they have power beyond courts of law, to 
meet and relieve the hardships of particular cases, yet it is 
not one of their greater remedial powers to relax the rules 
of evidence, and before they can extend a remedy the 
truth must be proved by the same stem and exacting rules 
as required by a court of law. 



142 SUPREME COURT. 



Allen V8w- Hawley. — Statement of Case. 

Those rules were created from considerations of high 
public policy; a strict, inflexible adherence to them will 
more often achieve and sustain the right than secure injus- 
tice in its unlawful gains. It is better to suJffer the wrong 
to triumph in one instance, than by breaking through these 
safeguards of truth, afford a precedent that will hazard 
the rights of many in subsequent suits of a like nature by 
opening an avenue to fraud and perjury. 

Upon the whole, I am not satisfied that there was an 
understanding of the parties that the property should be 
held in trust. I think that to grant the prayer of this bill, 
would be to infringe the statute of frauds, and the general 
rule prohibiting parol evidence, when a contract is in 
writing, and would be affording relief in a case where in 
the language of Judge Kent, "an amendment would be 
made without an absolute conviction of the truth and pre- 
cision of the real agreement." Entertaining these views, 
I am of opinion that the bill ought to be dismissed, except 
for the purpose of taking an account of the property speci- 
fied in the trust deed of 1844, and its profits and issues. 



Henry Allen, Appellant, vs. Nelson Hawley, Appellee. 

1. As a greneral rule, the several owners of a merchant vessel or steamboat, 
hold their respective interests therein, as ienanU in common and not as co- 
partnert, and consequently are to be governed by the rules of law, applicable 



TERM AT TALLAHASSEE, 1855. 143 



Allen vs. Hawley. — Statement of Case. 



to that species of tenure. But to this rule there may he exceptions, either 
growing out of the express agreement of the parties.or to be implied from the 
nature and character of the business or adventure In which they may be en- 
gaged. 

2. Where partnership funds are invested in the purchase of a steamboat, iir 
the absence of any positive stipulations between the part owners to the con 
trary, they will hold their respective interests in strict partnership and the 
property will be subject to the law of partnership. The case of "lioubat vs. 

Nourse'* (5 Florida Rep. 350,) referred to and approved. 

3. An injunction will be granted upon motion and tcithout notice, whenever 
the giving of the notice would probably accelerate the injury complained of In 
the bill of complaint The peremptory requisition for the giving of notice pro- 
vided for in the statute regulating.chancery proceedings, is limited and res- 
tricted to application *'to stay proceedings at law." 

4. Whenever the intervention of a Court of Equity becomes necessary in conse- 
quence of dissentions or disagreements between the copartners, to effect a 
settlement or closing of the partnership concems,upon bill filed by any of the 
partner8,showIng either a breach of duty on the part of the other partners or 
a violation of the agreement of partnership a Receiver will be appointed as a 
matter of course. 

5. A court of equity has no authority to appoint a receiver, with a view perma- 
nently to carry on the business of a partnership, but there is no impropriety 
in directing the Receiver to superintend the business, during the pendency 
of the legal proceedings instituted for the purpose of dissolving the partner- 
ship. 

6. If a receiver either exceed or abuse his authority, as defined by the terms 
• of the order making the appointment, and Injury or damage thereby result to 

any of the parties in interest,, they have their remedy on his bond. But such 
transcending or abusing of his authority, cannot, on appeal,be urged against 
the validity of the order. 

7. In all cases of a partnership at will, whether the contract was originally of 
that nature,or has become so by effluxion of time, or from other circumstan- 
ces, a Court of Equity will, upon a dissolution, decree a sale of the entirety 
of the partnership effects, at the desire of any of the parties. 

8. When the answer fully denies all the circumstances upon which the Equity 
of the bill is founded, it is the usual practice to dissolve the injunction. But 
there is no inflexible rule to this effect for the granting or continuing of the 



144 SUPREME COURT. 



Allen vs. Hawlcy. — Statement of Case. 



injunction, must always rest in the sound discretion of the court, to be gov- 
erned by the nature of the case. 
9. Each of the copartners has a specific lien on the partnership stock, not only 
for the amount of his share, but for monies advanced by him beyond that a- 
mount for the use of the copartnership, and the share of each, is the propor- 
tion of the residue, on the balance of account. 

Appeal from Franklin Circuit Court, sitting in Chance- 
ry- 
Nelson Hawley filed his bill in the court below, alleging 
that he and Henry Allen having contracted with the Gov- 
ernment of the United States for the transportation of the 
mail between Apalachicola and Chattahoochee for four 
years, from the first of July, 1847, entered into articles of a- 
greement for the purchase of a steamboat to be used as 
well in said service as in the transportation of freight and 
passengers, of which agreement, the following is a copy, 
viz: 

STATE OF FLORIDA, 
County of Franklin 



M 



This agreement made and entered into between Henry 
Allen of the State aforesaid, and Nelson Hawley, of the 
aforesaid State and county of Gadsden, witnesseth, that the 
said Henry Allen and Nelson Hawley, being jointly interes- 
ted in a contract with the United States, for carrying the mail 
for four years, commencing on the first day of July next, 
upon the Apalacliieola river, between the city of Apalachi- 
cola and Chattahoochee on said river, known as route 
No. 3523, all in the aforesaid State; and in order to carry 
out the aforesaid contract, do agree that the said Henry 
Allen, on his part, is to furnish in cash the sum of three 
thousand dollars, and the said Nelson Hawley, on his part, 
is to furnish the like sum of three thousand dollars; and it 
is further understood and agreed, that the said money, say 



TERM AT TALLAHASSEE, 1855. 145 



Allen T8. Hawley. — Statement of Case. 

six thousand dollars, to be paid into the hands of the said 
Henry Allen, and he is to proceed at once to New Orleans, 
cmd if necessary, up the Mississippi and Ohio rivers, for 
"the purpose of purchasing a suitable steamboat, to carry 
out the conditions of the said mail contract, using his 
judgment and means to the best advantage in making a 
selection and purchase of said boat; and if found upon 
examination, to be for the benefit of the parties interested 
to pay more than six thousand dollars for the said boat, 
he, the said Allen, shall be authorized to give a joint note 
for the balance required, or secure the parties by lien upon 
the boat, as may be most expedient. All necessary expen- 
ses occurring in purchasing said boat, to be shared equally 
by both the above mentioned parties. And it is understood 
and agreed, that Allen is to have command of said boat or 
boats, at a reasonable salary, say one hundred dollars per 
month, and to give his undivided attention to the interest 
of the contractors. And it is further agreed that Daniel 
Fry is to be employed in the capacity of engineer to furnish 
his own second at a salary of one hundred and thirty-five 
dollars per month, as long as lie faithfully discharges the 
duties in the above capacity, to the satisfaction of the mas- 
ter of the boat. In witness whereof &c., &c." 
Dated 8th May, 1847. 

The Complainant, Hawley, also alleged in his bill that he 
had advanced and paid to said Henry Allen the sum of 
Three thousand dollars, provided to be paid by said articles 
of agreement, — that Allen did purchase a boat, called the 
"Quincy," costing fourteen thousand six hundred and fifty 
dollars, with which he had been engaged in the mail ser- 
vice as mentioned in the agreement and in the business of 
11 



146 SUPREME COURT. 



Allen vs. Hawley. — Statement of Case. ^ 

transporting freight and passengers, having tlie entire con- 
trol and management thereof and of the funds. That short- 
ly after the arrival of the boat he applied to said Allen for 
a bill of sale and to be recognised as joint owner and for an 
account all of which was refused, and was compelled to in 
cur considerable expense and trouble to institute proceed- 
ings at law to obtain a bill of sale and his rights. That 
during the service of said boat, she made a large sum of 
money, out of which, complainant claimed he was entitled 
to his portion. 

The complainant further alleges that the four years of 
the mail contract for which said boat was bought, having 
elapsed, he made application to said Allen for a settlement 
and adjustment of the affairs of said boat and for its dispo- 
sal by sale or otherwise, and that he proposed, as a means 
of attaining that end, either to sell or buy ; that pending this 
proposition he perceived that the boat was firing up as if 
ready for departure and that he immediately went on board 
and protested against her being taken out of the waters of 
the State, but that said Allen disregarding his wishes and 
in defiance of his rights proceeded with the said boat to 
the County of Decatur, in Georgia, where he left her and 
proceeded himself to the North; that said boat remained 
in said county until he, complainant, on being informed 
that a seizure of said boat was made by process of law in 
Georgia and that a sale was about to be had, was compell- 
ed out of regard to his own interests, to advance his own 
means and take up the fi. fa. against said boat, to save her 
from sacrifice. 

The bill concludes with a prayer for an account, &c., for 
a dissolution of the joint interest and sale of the boat, 
for a Receiver with power to make repairs with reference 



TERM AT TALLAHASSEE, 1855. 147 

Allen vs. Hawley. — Statement of Case. 

to a sale, and for an injunction restraining said Allen from 
further interfering with said boat or its proceeds, or from 
collecting any debts, &c., due the same, or from selling or 
otherwise disposing of his interest therein. 

The complainant filed as part of his proofs a copy of 
the execution issued in Georgia, which had been levied on 
said boat and taken up by himself. 

The court below, on motion of complainant granted an 
order, directing a writ of injunction to issue as prayed for 
in the bill, and also appointing Archibald T. Bennett Re- 
ceiver, "to take charge of the steamer Quincy, to prevent 
injuries from waste and decay, and other casualties as far 
as may be practicable; to repair the said boat so as to 
put her in condition for sale, or such disposition of her as 
may be ordered by the parties, or the court may order, the 
eiqpense of repair and the like to be repaid by proper use 
of the said boat. 

Henry Allen subsequently filed his answer, in which he 
admitted the articles of agreement above recited, and also 
that complainant Hawley, had paid him the sum of three 
thousand dollars, as provided therein, which he applied in 
the purchase of said boat. The defendant alleged that the 
greater part of the difference between the cost of said 
boat and the cash contributed by the parties, was paid by 
his drafts and notes. He admitted that he took a title to 
said boat in his own name, and that he refused to give to 
Hawley a bill of sale for one half thereof, but alleged 
that he felt justified in so doing, from the fact that he had 
given his note and drafts for a large sum for the balance 
due on said boat, and until the same was paid, he was un- 
willing to give complainant a title to said boat; that all 
the matters in dispute between complainant and defendant 



148 SUPREME COURT. 



Allen vs. Hawley. — Statement of Case. 

were, after the filing of a bill by complainant for an ad- 
justment of them, settled by arbitrators to whom they had 
been referred, and that in pursuance of their award he ex- 
ecuted a bill of sale to complainant for one half of said 
boat. He further savs in his answer, that he did take the 
boat to Decatur County, Georgia, but not in the manner or 
with the intent alleged in the bill, but that he took her 
there and laid Her up, the business season being over, be- 
cause it was a safe place for that purpose, and refers to 
the destruction which befel such boats as were kept at 
Apalachicola in the summer of 1851, as an evidence of 
his having done right in not allowing complainant to 
guide him in the matter. He alleged that complainant 
was guilty of a wrong when he went to Decatur County 
and by violence took possession of said boat, as he was in- 
formed and believes he did, with the view to harass him 
with vexatious suits, &c. ; that the pretence that complain- 
ant was forced to go to Decatur County to prevent a sale 
of the boat, was without foundation, for that the writ of 
fi. fa., levied thereon was issued wrongfully, and that so 
far from there being danger of a sale under said writ, the 
agents of defendant would have protected the boat from 
sale, and that had any sale been made, it could only have 
been of his, defendant's interest. He further alleged that 
as to the charge that he refused to sell his interest or buy 
that of the complainant in the boat, he well knew the improb- 
ability that he could in any negotiation with complainant 
of purchase or sale escape without loss, and therefore de- 
clined entering into any such treaty and refuse so to do. 
Defendant further alleged that he refused to give his as- 
assent to making any repairs which complainant desired to 
make on said boat, because he considered the hull of said 



TERM AT TALLAHASSEE, 1856. 149 



Allen T8. Hawley. — Statement of Case. 

l3oat to be in such a condition as to make it impossible to 
x^pair said boat at any rate that would justify his doing 
so, and he gave notice to complainant that he would not be 
answerable for any repairs and would not consent to the 
same, and he insisted that complainant in procuring the 
order to have repairs made without notice to him, and by 
procuring the repairs, acted in such a manner as should 
render him, complainant, alone responsible for the same, 
&c. ; that his, defendant's share of the boat would be swal- 
lowed up in paying for repairs, should a sale of said boat 
be made for the purpose. The answer denied the charge 
in the bill, that he had refused to render an account or to 
permit the complainant to examine the books, &c., and it 
also in terms, denied all the equities set up in the bill, &c. 

Afterwards complainant petitioned for a sale of the 
boat, on the ground that she was running at great disad- 
vantage for want of new shafts, &c., and because she 
could be run to much greater advantage by some person 
who had the ownership and full power and control over 
her, than by the Receiver, under the authority of the court. 

The prayer of this petition was granted and a sale of 
the boat was ordered by the court, the funds to be re- 
tained, &c. 

Another order was afterward granted, directing a distri- 
bution of the proceeds of the sale of the boat, amounting 
to $4000, to be made, by which the Receiver was required 
to retain $713, (claimed by an alleged creditor, but con- 
tested by the parties) until further advice, and to pay the 
sum of $3342.88, to parties named therein. 

The defendant, Allen, feeling himself aggrieved, appeal- 
ed from the orders granted, viz: the order granting an in- 
junction; the order appointing a Receiver; the order of 



150 SUPREME COURT. 



Allen vs. Hawley. — Opinion of Court 



sale of boat Quincy; the order refusing to dissolve injuiw 
tion and vacate the order appointing Receiver, and tl»- 
order for tlie distribution of the fund arising from the saL 
of said steamboat. 

W. 0, M, Davis and T. J. Eppes, for Appellant. 

G. S. Hawkins, for Appellee. 

DuPONT, J., delivered the opinion of the court. 

The first point that arises in this cause and upon the de- 
cision of which mainly depend many of the positions oi 
law, assumed by the Counsel of the appellant, inyolyes th.^ 



inquiry as to the character of the tenure, by which seve- 
ral individuals may hold title to merchant ships or steam- 
boats. In other words the relation which the several indi- 
viduals hold to each other, in respect to the ownership of 
that particular species of property. 

All writers upon the subject of commercial and mari- 
time law concur that, as a general rule, merchant vessels 
employed in navigating the ocean (and we have discovered 
no exception in respect to steamboats plying on the wa- 
ters of the interior rivers and lakes,) are held in tenancy in 
common, and not in joint tenancy, and there by withdraw- 
ing that particular species of property from the operation 
of the law of "Partnership/' In confirmation of this be- 
ing the general rule on the subject, it is laid down in the 
books that "a ship is a chattel of which the owners are 
possessed as tenants-in-common ; though if it be convey- 
ed to them at one and the same time, and by one instru- 
ment, they are more properly joint tenants, without ben- 
efit of survivorship." (Coll. on Part., Sec, 1185, Perkins 
Ed.) 

Judge Story in his treatise on the law of partnership, 
(sec.417,) concurs in the doctrine thus : "Property in a ship 



TERM AT TALLAHASSEE, 1855. 151 

Allen V8. Hawley. — Opinion of Court. 

(says tills author,) may be acquired by two or more per- 
sons^ either by building it at their own expense, or by the 
purchase of a part thereof of the sole owner or by the 
joint purchase of the whole, of another person, but wheth- 
er acquired by a joint building, or a part purchase, or by a 
joint purchase, the parties, in the absence of all positive 
stipulations to the contrary, because entitled thereto as ten- 
ants-in-common and not as joint tenants. In this respect 
it will make no difference whether the title is acquired at 
one and the same time, by and under one and the same 
instrument, or whether it is acquired at different times 
and under different instruments." And to the same effect 
are all the adjudications, both in England and in this 
country. Dodington vs. Haller, 1 Vesey, 497 — Ex parte. 
Young, 2 Ves. and Beam., 242; Nicoll vs. Munford, 4 
John. Ch. Eep., 522. Munford vs. Nicoll, 20 John, R., 
611. 

This however is to be taken as the enunciation of a 
general rule, and not as a universal principle, and like 
all general rules subject to exceptions. In this the au- 
thorities all agree. Collier in announcing the rule, lim- 
its it thus : " But a ship as well as other chattels, may 
be held in strict partnership, with all the control in each 
partner incident to commercial partnership." Coll. on 
Part., Sec. 1186, Perk. Ed. 

Judge Story qualifies the doctrine by stating it to be 
80 "in the absence of all positive stipulations to the 
contrary," (Story on Part., Sec. 417) and thereby tacitly 
admits that the general rule may be modified by the con- 
tract or agreement of the parties. Chancellor Kent also 
recognizes the exception, and with his usual clearness, 
has stated the distinction between part ownership and 



U:i SUPREME COUET. 



Allen vs. Hawlcy. — Opinion of Court. 



partnership in this species of property. He says, " the 
cases recognize the clear and settled distinction between 
part owners and partners. Partnership is but a tenancy 
in common, and a person who has only a part interest in a 
ship is generally a part owner, and not a joint tenant or 
partner. As part owner he has only a disposing power o- 
ver his own interest in the ship, and he can convey no 
greater title, but there may be a partnership as well as coten- 
ancy in a vessel; and in that case one part owner, in the 
character of partner, may sell the whole vessel, and he 
has such an implied authority over the whole partnership 
effects as we have already seen. The vendee in a case 
free from fraud, will have an indefeasable title to the whole 
ship. When a person is to be considered as a part owner 
or as a partner in a ship, depends upon circumstances/' — 
(3 Kent's Com., Sec. 45, p. 154, 4th Ed.) 

In Harding vs. Foxcroft, 6 Greenl. R., 77, Mellen, 
Chief Justice said, "there may be a partnership as well 
as a cotenancy in a vessel. When a person is to be con- 
sidered as a part owner and when as a partner in a ship, 
depends on circumstances. The former is the general re- 
lation between ship owners, and the latter the exception, 
and it is required to be shown specially." In Philips vs. 
Purvington, (15 Maine, 427), Shepley, J., remarks, "it is 
contended that they were not partners but tenants in com- 
mon of the vessel. Such is the usual relations of part 
owners, but they may become partners." In the case 
of Lamb et al., vs. Durant, 12 Mass. R., 60, Parker, C. J., 
says, "vessels owned by a copartnership are certainly ef- 
fects of the partnership and not unfrequently the principal 
effects. Occasion for selling them frequently arise in the 
course of business, and notwithstanding they are common- 



TEEM AT TALLAHASSEE, 1855. 153 

Allen v«. Hawley. — Opinion of Court 

ly conveyed by an instrument under seal, they may pass by 
delivery only, as well as any other chattel, so far as res- 
pects the property of the vessel. No exception from the 
authority of the partner relative to partnership effects, 
can be found in favor of vessels ; and there seems to be 
no reasons for such exceptions.^' 

Upon the authority of the decision, in the case of ex 
parte Young, 2 Vesey and Beam., 242, which was decided 
by Lord Eldon, and the effect of which decision ac- 
cording to Mr. Collier, was to overrule Lord Hardwicke's 
opinion in the case of Dodington vs. Hallet, 1 Vesey, 497. 
Chancellor Kent decided the case of Nicoll vs. Munford. 
In delivering his opinion in that case he says, in allusion 
to the decision of Lord Hardwicke, "I dare not therefore 
follow a case which has never had effect, and has been so 
authoritatively exploded. The cases which have been re- 
ferred to, are in point against the allowance of any part- 
nership claim, or taking an account on the foot of any 
partnership in the vessel." 

With all proper deference and respect for the opinions 
of Mr. Collier and Chancellor Kent, the former of whom 
asserts that the decision of Lord Hardwicke had been " ex- 
pressly over-ruled," and the latter that it had been ''author- 
itatively exploded/' we are inclined to think that the lan- 
guage used in respect to the effect of that decision, is too 
strong. The language adopted by Lord Eldon in deliver- 
ing his opinion in the case of ex parte Young, seems to us 
expressly to decline to over-rule the case of Dodington vs. 
Hallet, for he says, "the difficulty in this case arises upon 
the decision of Dodington vs. Hallet by Ijord Hardwicke, 
which is directly in point. That case is questioned by Mr. 
Abbot, who doubts what would be done with it at this day. 



154 SUPEEME COUBT, 



Allen T8. Hawley. — Opinion of Court. 

and I adopt that doubt. The case which is given by Mr. 
Abbot from the Register's Book is a clear decision by Lord 
Hardwicke that part owners of ships being tenants in 
common^ and joint tenants, have a right notwithstand- 
ing to consider that as a chattel used in partnership and. 
liable as partnership effects to pay all debts whatever to 
which any of them are liable on account of the ship. His 
opinion went the length that tenants in common had & 
right to make a sale. There is great difficulty upon that 
case and the inclination of my judgment is against it, but 
it would be a very strong act for me by an order in bankrupt- 
cy, from which there is no appeal, to reverse a decree made by 
Lord Hardwicke in a cause. From a manuscript, I know 
that it was his most solemn and deliberate opinion after 
great consideration, that the contrary could not be main- 
tained, and there is no decision in equity contradicting that.'* 
In the note of Lord Eldon's judgment in ex parte Harri- 
son (2 Bose B., 78 note,) the language attributed to him is, 
"I certainly differ from Lord Hardwicke, but I hesitate to 
decide against his deliberate judgment in a cause, upon a. 
petition in Bankruptcy." 

But whatever may be the effect to be given to Lord El- 
don's opinion, it is very certain that Chancellor Kent, who 
based his decree in the case of Xicoll vs. Munford, upon 
that opinion was reversed upon a review of that case 
in the Court of Errors of New York, Munford vs. Nicoll, 
20 John E., 611. 

It is not at all improbable that the apparent difference which 
seems to exist between Lord Hardwicke and Lord Eldon 
on this subject, has grown out of a misapprehension of the 
extent to which the former intended to be understood as hav- 
ing gone, in his decision of the case of Dodington vs. Hallet ; 



TERM AT TALLAHASSEE, 1855. 155 

Allen V8. Uawley. — Opinion of Court. 

liat case might very well from its circumstances have been 
Lecided as it was, without in the least trenching upon the 
loctrince which recognizes the distinction between the 
•ights of tenants in common and copartners. Spencer, C. 
X., in Munford vs. Nicoll, says Lord Hardwicke, perfectly 
understood the distinction between a tenancy in common, 
such as owners of different shares in a ship have among 
fchemselves, and a joint tenancy, as between partners of 
the goods and stocks in trade. He meant to decide, and did 
clecide, that a subject which ordinarily may be held as a 
"tenancy in common, may by the acts of the parties become 
lo be held in joint tenancy, and the fact of the agreement 
to build the ship at their joint expense, in proportion to 
their shares, and the agreement to fit her out, manage and 
victual her for the service of the East India Company, 
formed in his judgment, sucli a community of interest, 
as to constitute that a partnership transaction in relation 
to those subjects, and thus a specific lien was acquired, &c. 
In the course of his opinion. Chief Justice Spencer further 
remarks : "I must not be supposed to overrule the distinction 
between partners in goods and merchandise, and part- 
owners of a ship. But I mean to say that part owners 
of a ship may, under the facts and circumstances of this 
case, become partners as regards the proceeds of the 
ship ; and if they are to be so regarded, the right of one to 
retain the proceeds until he is paid what he has advanced 
beyond his proportion, is unquestionable. 

The result of our investigations is that as a general rule, 
the several owners of a merchant vessel or steamboat, 
hold their respective interests as tenants in common, and 
not as copartners, and consequently are to be governed by 
the rules of law applicable to that species of tenure; but 



156 SUPBEME COTTBT. 



Allen T8. Hawley. — Opinion of Court. 

« 

that, to this rule, there may be exceptions, either growing 
out of the express agreement of the partners, or to be implied 
from the nature and character of the business or adven- 
ture, in which they be about to engage. 

Applying the principle to the present case, and we are 
very clear in the opinion that the appellant and appellee 
as part owners of the Steamboat Quincy, held their respec- 
tive shares in the same, not as tenants in common, but as 
copartners. 

There is no evidence in the record of an express agree- 
ment between the parties that their respective interests in 
the boat was to be held in strict partnership, but originat- 
ing as these interests did out of a copartnership business 
and being subservient thereto by the express terms of the 
agreement entered into between them in reference to that 
business, we do not see how it can be looked upon as an 
interest outside that partnership. For a correct under- 
standing of our views on this point we give the writ- 
ten agreement alluded to, in haec verba, which may be found 
in the record, and noted as "exliibit A :" — 

STATE OF FLORIDA, 
County of Franklin. 

This agreement made and entered into between Henry 
Allen of the State aforesaid, and Nelson Hawley, of the 
aforesaid State and County of Gadsden, witnesseth, that the 
said Henry Allen and Nelson Hawley, being jointly interes- 
ted in a contract with the United States, for carrying the mail 
for four years, commencing on the first day of July next, 
upon the Apalachicola River, between the city of Apala- 
chicola and Chattahoochee on said river, known as route 
No. 3523, all in the aforesaid State; and in order to carry 
out the aforesaid contract, do agree that the said Henry 



TEEM AT TALLAHASSEE, 1856. 157 

Allen Ts. Hawley. — Opinion of Court. 

.^Uen, on his part^ is to furnish in cash the sum of three 
'ft^hoiisand dollars^ and the said Nelson Hawley^ on his part, 
S.8 to furnish the like sum of three thousand dollars; and it 
ia further understood and agreed, that the said money, say 
six thousand dollars, is to he paid into the hands of the said 
IHenry Allen, and he is to proceed at once to New Orleans 
mnd if necessary, up the Mississippi and Ohio rivers, for 
iiie purpose of purchasing a suitable steamboat, to carry 
out the conditions of the said mail contract, using his 
judgment and means to the best advantage in making a 
selection and purchase of said boat; and if found upon 
examination, to be for the benefit of the parties interested 
to pay more than six thousand dollars for the said boat, 
he, the said Allen, shall be authorized to give a joint note 
for the balance required, or secure the parties by lien upon 
the boat, as may be most expedient. All necessary expen- 
ses occurring in purchasing said boat, to be shared equally 
by both the above mentioned parties. And it is understood 
and agreed, that Allen is to have command of said boat or 
boats at a reasonable salary, say one hundred dollars per 
month, and to give his undivided attention to the interest 
of the contractors. And it is further agreed that Daniel 
Fry is to be employed in the capacity of engineer to furnish 
his own second at a salary of one hundred and thirty-five 
dollars per month, as long as he faithfully discharges the 
duties in the above capacity, to the satisfaction of the mas- 
ter of the boat. In witness whereof, &c., &c." 

It will be perceived by reference to this paper that the 
parties had become "jointly interested in a contract with 
the United States for carrying the mail for four years" up- 
on a certain mail route, and they mutually agree to furnish, 
each a certain amount of cash, for the purpose of purchas- 



158 SUPREME COURT. 



Allen vs. Haw ley. — Opinion of Court. 




ing a suitable steamboat " to carry out the conditions 
the said mail contract." It is also evident from the 
of tlie recital in the written agreement that they v/ere c 
partners in tlie strictest sense of the term, so far as the co 
tract for carrying the mail was concerned, and we find :m 
impossible upon any sound principle, to view the Stean^ 
boat to be purchased in any other light than as an instrvM- 
ment to carry out that contract, and a part of the stock in 
trade. The mail contract was tlie subject, the Steamboat 
the mere incident, and therefore subservient thereto. 

But should we be in error on this point, there is one oth- 
er view of the subject, that to our minds is unanswerable. 
It will be remembered that the cash contributed bv the two 
parties, in equal portions, amounted to the sum of only six 
thousand dollars, and that the entire cost of the boat was 
about fifteen thousand dollars. 

The excess of cost, as is made to appear by the record, 
was secured by a lien on the boat, (in virtue of one of 
the stipulations of the contract) and that the same was 
eventually paid off and discharged from the net earnings of 
the boat. Now, in none of the authorities cited for the ap- 
pellant, is it for a moment doubted that although the ves- 
sel itself may be under the operation of the strict technical- 
ities of a tenancy in common, yet that the proceeds of the 
cargo or adventure, is subject to the law of partnership. — 
If this be so, then the case before us is one in which part- 
nership funds have been invested in the purchase of a cer- 
tain species of property ; and it is only necessary to refer 
to the books to see the effect and operation of such a trans- 
action. The discussio'tis which have occurred in respect to 
the different rules which obtain in the respective cases of 
partnership and tenancy in-common, have grown out of the 



TEBM AT TALLAHASSEE, 1855. 169 



Allen Ts. Hawley. — Opinion of Court. 

csonflicting interests involved in the administration of real 
^^tate^ which had been purchased with the funds of the part- 
siership. This subject was very ably discussed by Thomp- 
son J., in the luminous opinion which he delivered in the 
case of Loubat vs. Nourse, 5 Fla. B. 350, which was de- 
cided by the court, at its term held in Marianna in 1853 ; 
and the conclusion at which the court arrived, after an e- 
laborate and critical examination of the authorities both in 
this Country and England was, that "although such an es- 
tate be conveyed to the partners, so as to vest in them a legal 
estate as tenants in-common, yet in the absence of an ex- 
press agreement, or circumstances showing an intent that 
the estate is to be held for the separate use of the partners, 
it will be considered in equity as vesting in the partners, in 
their partnership capacity, subject to an implied trust that 
they shall hold it until the purpose for which it was pur- 
chased have been accomplished, and that it shall be ap- 
plied, if necessary, to the payment of the partnership debts.^' 
This is an authoritative exposition of the law as it at pre- 
sent stands in tliis State; and if it be the law governing 
real estate, we can perceive no sound reason why it should 
not, with greater force, be applicable to every other species 
of property. The counsel for the appellant, in the supple- 
mental brief furnished to the court, relied further upon the 
fact, that the complainant, Ilaw^ley, in his bill alleges that 
he had previously been compelled to resort to a Court of 
Equity to compel Allen to make him a title to his share 
in the boat, and deduces therefrom the conclusion that 
the interests of the respective parties had thereby been 
severed. It is a sufl5cient reply to this argument to refer 
to the opinion in the case of Loubat vs. Nourse, just cited, 
in which it is laid down that " although such estate be con- 





160 SUPREME COURT. 



Alton VB. llawley. — Opinion of Court. 

veyed to the partners, so as to vest in them a legal 
tate as tenants in-common, yet in the absence of an 
press agreement, or circumstances showing an intent th- 
the estate is to be held for the separate use of the par*"*^^^^ 
ners, it will be considered in equity as vesting in the pai 
ners,^' &c. 

The case of Fry vs. Hawley, 4 Fla. R., 258, has alBO<^ 
been referred to as an authoritative adjudication of the point 
now under discussion. We have looked very carefully 
into that case, and think . that the counsel has misappre- 
hended the extent of that decision. The point now under 
consideration did not arise, even incidentally, and it was 
therefore unnecessary tliat it should have been decided ; nor 
do we find in the opinion, even a dictum, which would sup- 
port the assumption of the counsel. In that case the 
court only decided that the transaction between Hawley 
and Fry, did not raise a partnersliip between the three 
Allen, Hawley and Fry, (there being no privity between, 
Hawley and Fry,) and left the question as to the relation 
existing between Allen and Hawley, growing out of the 
terms of the contract for carrying the mail, and the cir- 
cumstances connected with the building of the boat, wholly 
untouched. 

Having thus determined that the steamboat Quincy, is 
to be considered as partnership property, and as such pro- 
perty, within the jurisdiction of the Court of Chancery, it 
now only remains for us to determine upon the propriety 
of the several interlocutory orders which have been enter- 
ed in the progress of the suit now pending between the par- 
ties; and which (under the provision of the statute) have 
been appealed from by the defendant below. 



TERM AT TALLAHASSEE, 1855. 161 



Allen T8. Hawley. — Opinion of Court 

The first order mentioned in the petition of appeal, is the 
" order granting an injunction." 

The bill of complaint filed in this cause purports to be 
by one partner against his- copartner, and contains the 
usual prayer for account of the profits of the boat, and 
that she be sold, which is accompanied by the further prayer 
for the appointment of a receiver and for the issuing of a writ 
of injunction, "to restrain the said Allen from further pos- 
session or interference with said boat, or its proceeds, or 
from collecting any debts, dues or demands due the same, 
or from selling or disposing of his said part of said boat/^ 
The bill appears to have been filed on the 10th day of Septem- 
ber, 1851, and the writ of injunction, in accordance with 
the prayer, granted on the same day, but not executed un- 
til the 11th day of February, 1852. 

In Adams Eq., 641, (margin 37) the law regulating the 
granting of an interlocutory injunction is thus stated : — 
"The grants of the interlocutory injunction indiscretionary 
with the court, and depends on the circumstances of each 
case and on the degree in which the defendant or plaintiff 
would respectively be prejudiced by the grant or refusal." 
And again at page 639, (margin 335,) an injunction is 
granted to restrain a defendant, so long as the litigation 
continues, from doing acts productive of permanent injury, 
or from proceeding in an action at law, where an equity 
is alleged against his legal right. On the same page the 
author further remarks : " The ordinary mode of obtain- 
ing this injunction, is by moving after notice to the defen- 
dant; but in particular cases where giving notice might 
accelerate the mischief, it will be granted ex parte, and 
without notice, e. g, in cases of waste, or of negotiating a 
bill of exchange; and even where that special ground does 
12 



162 SUPREME COURT. 



Allen vs. Haw ley. — Opinion of Court. 

not exist, yet if the act to be prohibited is such that delay 
is productive of serious damage, as in piracies of copy- 
right and patent, an ex parte injunction may be obtained." 
Our statute provides that no writ of injunction or ne exeat 
shall be granted until a bill be filed praying for such writ, 
except in the special cases, and for the special causes in 
which such writs are authorized by the practice of the 
courts of the United States exercising equity jurisdiction ; 
and no writ of injunction to stay proceedings at law, shall 
issue, except on motion to the court or Judge, and reasona- 
ble notice of such motion, previously served on the opposite 
party or his attorney, &c. 

The iu junction in this case was granted on motion, and 
it does not appear that any notice of the application was giv- 
en to t)ie opposite party; and we think that the circumstan- 
ces sworn to in the bill, made it just one of those cases con- 
templated by the law, in which the notice might be dispensed 
with, viz: where the very giving of the notice might in 
all probability "accelerate the injury" 

It will be further noted that the peremptory requisition 
contained in the statute above cited, is limited to applica- 
tions "to stay proceedings at law/' and in all other cases we 
presume, that the practice of the High Court of Chancery 
of England will prevail, where it does not conflict with the 
rules of court. 

Upon an examination of the record, (for we had no ar- 
gument from the counsel on this matter of the appeal,) we 
do not find any error in the order granting the injunction, 
and do therefore affirm the same. 

The second ground of appeal is from "the order ap- 
pointing the Receiver." 

l^he law in regard to the appointment of a Receiver, in 



TERM AT TALLAHASSEE, 1855. 163 



Allen V8. Hawley. — Opinion of Court. 

suits between copartners, is laid down tlius by Adams in 
his work on equity: "The first step is, that the partner- 
ship debts should be ascertained, and the assets applied in 
"fheir discharge. If the parties cannot agree on the inter- 
mediate management, whilst the process of dissolution is 
going on, a receiver may be appointed to conduct it. — 
IBut the court cannot permanently carry on the business, 
^nd will not therefore appoint a receiver, except with a 
"V'iew to getting in the efPects, and finally winding up the 
cioncem." Adams Eq., 437- [margin 243.] 

Collier says: "where a dissolution is intended, or has 
^already taken place, a Court of Equity will appoint a re- 
ceiver, provided there be some breach of the duty of a part- 
xier, or of the contract of partnership." (Collier on Part., 
Perkins Ed. 354.) 

In New York, it is a matter of course to appoint a re- 
ceiver, if the parties cannot agree among themselves, as to 
the disposition and control of the property, upon a bill filed 
by one of the partners, to close up the partnership con- 
cern. Martin vs. Van Sharick, 4 Paige 479, Innes vs. Lan- 
sing, 7 Paige, 583. 

So a receiver will be appointed as a matter of course, 
where either partner has a right to dissolve the partnership, 
and the articles of partnership do not provide for the set- 
tlement of the concern, upon a bill filed for that purpose. 
Law vs. Ford, 2 Paige, 210. In Skip vs. Harwood, a re- 
ceiver was appointed of the brewery. It was ordered that 
it should be referred to the master, to appoint a proper 
person to be receiver of the stock, goods, &c., of the 
brewery trade, and the debts due the partnership. — 
And in the meantime that the defendants to be restrained 
from alienating, disposing of, or removing any of the uten- 



164 SUPEEME COURT. 



Allen Ts. Hawley — Oidnion of Court 

sils or dead stock belonging to the trade. (Coll. on Part., 
354, Note 4.) 

A receiver was appointed of a steamboat, where the 
owners disputed and required the court to settle their rights, 
and such receiver was required to run the boat. This 
was done for two years in the case of the steamboat * Onta- 
rio,' but in that case the court observed that it was highly 
inconvenient, and unfit that such operations should be con- 
ducted under the direction of the court for so long a time ; 
and an order for sale was accordingly made. (Crane vs. 
Ford, 1 Hopkins R., 114.) In this latter sentiment of the 
court, we fully concur. As it is not the province of the 
court to create a copartnership, so it is equally foreign 
from its functions to conduct its business. It never could 
have been contemplated, that a Court of Chancery, should 
become the superintendent of the private affairs of in- 
viduals, — its legitimate province is to adjust the rights, 
and settle the disagreements of parties, growing out of 
such transactions. 

From the examination wliich we have made of the au- 
tlioritics on this subject, we think the law may be consider- 
ed as settled, that whenever the intervention of a Court of 
Equity becomes necessary, in consequence of dissensions or 
disagreements between the partners, to effect a settlement 
and closing of the partnership concerns, upon bill filed 
by any of the partners, showing either a breach of duty on 
the part of the other partners, or a violation of the agree- 
ment of partnership, a receiver will be appointed as a mat- 
ter of course. 

The first three points made by the counsel for the ap- 
pellant in his argument upon this branch of the case come 
clearly within and fully sustain the rule as thus laid down 



TERM AT TALLAHASSEE, 1855. 166 



Allen Tt. Hawley — Opinion of Conrt. 

and it is therefore unnecessary to notice them further than 
to remark that they receive our entire approbation. 

But it was further contended by the counsel that the pro- 
perty having been taken possession of by the complainant, 
and being at the date of the application for the appoint- 
ment of the receiver, in his actual possession, it was ab- 
surd and contrary to all precedent, that he should ask to 
have himself deprived of that possession. It is only neces- 
sary to advert to the facts of the case, as they appear in 
the record to show that the application for the appoint- 
ment of the receiver, is not obnoxious to the charge of in- 
consistency or impropriety. By the terms of the written 
agreement herein before set forth, the right of the posses- 
sion of the boat was guaranteed to Allen. By virtue of 
that right, he had taken the boat to Bainbridge, in the 
State of Georgia, as a safe place to lay her up during the 
Summer. While there, and in the absence of Allen, who 
had gone on a visit to the North, as he says, for the benefit 
of his health, the boat was levied upon by virtue of a writ 
of fieri facias issued out of the Inferior Court of Early coun- 
ty in the State of Georgia, and advertised for sale. For 
the purpose therefore of protecting the joint interest of the 
concern, Hawley, as one of the parties in interest, proceed- 
ed to Bainbridge, paid off the execution, and, doubtless 
fearing a repetition of the same thing, took possession of 
the boat and removed her out of the jurisdictional limits of 
"the State of Georgia. In this whole transaction we see no 
evidence of any design or intention on the part of Hawley 
"to assert any adversary right of possession to that acquired 
ly, and belonging to Allen, under the terms of the written 
agreement before referred to. We think it therefore un- 
i!air to assume that Hawley had the absolute possession of 



166 SUPREME COURT. 



Allen vs. Hawley — Opinion of Conrt. 

the boat at the time of tlie application for the appointmer^-^ 
of the receiver, //is possession was merely casual and er==^' 
tirely subordinate to the right of Allen. 

The next position assumed by the counsel was, that 
Court of Chancer}^ has no power to appoint a receiver ^ 
carry on the husitiess of a copartnership. 

In tliis we fully concur, as a general proposition of la 
and to ascertain its applicability, it becomes necessary 
examine the terms of the order granted in this cause. 

The order is in the following words, to wit: "It is furth- 
er ordered that Archibald T. Bennett be and he is hereby 
appointed Receiver, to take charge of the Steamer Quincy, 
to prevent injuries from waste and decay and other casual- 
ties as far as may be practicable — to repair said boat so as 
to put her in condition for sale or such disposition of her as 
may be ordered by the parties, or as the court may order. 
The expense of repair and the like to be repaid by proper 
use of said boat." There is certainly nothing in the terms 
of the order from which it can be gathered that it ever was 
the design or intention of the court to invest the Receiver 
with authority "to conduct the buMness of the partnership," 
The assumption, we presume, is based upon the last clause 
of the order, which directs that "the expense of repair and 
the like, be re-paid by proper use of said boat," but we do 
not think even this clause, upon any fair principle of inter- 
pretation, will bear such a construction. It was evidently 
the design of the order, to relieve the copartners from the 
charge, by causing the boat to reimburse the outlay for re- 
pairs; and thus limited, it was altogether consistent with 
the strictest propriety. If the receiver has either exceeded 
or abused his authority as defined by the terms of the or- 
der making the appointment, and injury or damage has 



TERM AT TALLAHASSEE, 1855. 167 

Allen YE. Hawley — Opinion of Court. 

lereby accrued to any of the parties in interest, they have 
leir remedy on his bond; but most certainly, such trans- 
ending of his authority (if it has occurred) is not to be urg- 
i against the validity of the order. 

The sixth, seventh, eighth and ninth positions assumed 
y the counsel in his arguments on this branch of the sub- 
jct, are already disposed of by the view which we have taken 
f the character of the title to this property, viz: that it is 
ot a tenancy-in-common, but a strict partnership. 

Applying then to the case, the rule which we have here- 
1 laid down in regard to the appointment of a receiver, 
ad without going on an enumeration of the various 
barges set forth in the bill of the complaint, we are con- 
trained to say that the case presented, strongly demanded 
f the chancellor, the interposition of his power, to make 
le appointment. 

The third ground of appeal mentioned in the appellant's 
etition is, from, "The Order of Sale of the Boat Quincy." 

The entire argument of the appellant's counsel upon this 
ranch of the case, proceeded upon the assumption that 
le parties held their respective interests in the boat as 
inants-in-common and not as copartners. As before ob- 
?rved, any argument made upon this hypothesis and the 
ithorities cited in support thereof, becomes wholly inap- 
licable, from the decision which we have heretofore ar- 
ved at in considering the main question. There was no 
cceptions taken in the argument to the terms of the order, 
he only objection alleged in support of the appeal, was 
3 to the authority of the court to grant the order. 

In Adams' Equity 461 (margin 245) the law on this sub- 
let is thus laid down: "In order to effectuate the reali- 
ation of assets, the payment of debts and the distribu- 



168 SUPEEME COUET. 



Allen TS. Hawley — Opinion of Conrt 

tion of surplus, the court has an authority over partner- 
ship estate, which does not exist in other cases of common 
ownership, — that of directing its sale and conversion into 
money. And this jurisdiction may be exercised, either by 
the same decree which directs a dissolution, or if dissolu- 
tion has already taken place, by an interlocutory order." 

There are many cases in which a Court of Equity will 
assist the settlement of partnership accounts, by decreeing 
in the first place a sale of the property. Where no pro- 
vision is made for the disposition of the partnership pro- 
perty upon a dissolution, this exertion of equitable jurisdic- 
tion seems to arise necessarily, from that general principle, 
that the retirement of one partner is the dissolution of the 
whole society. Coll. on Part. § 307. 

"It appears therefore that in all cases of a partnership 
at will, whether the contract was originally of that na- 
ture or has become so bv effluxion of time, or other circum- 
stances, a Court of Equity will, upon a dissolution decree a 
sale of the partnership effects, at the desire of the parties." 
ib., § 313. Upon a proposition so plain however, we deem 
it necessary to multiply authorities, and concludes on this 
branch of the case, by sustaining the propriety and valid- 
ity of the order granted by the chancellor. 

The fourth ground of appeal is from "the order refusing 
to dissolve the injunction and vacate the order appointing 
the receiver." 

The injunction in this cause, was granted before an- 
swer, and the general rule of practice in such cases, is to 
dissolve the injunction where the answer fully denies all 
the circumstances upon which the equity of the bill is 
founded. Hoffman vs. Livingston, 1 John. Ch. B., 211 ; 
Livingston vs. Livingston, 4 Paige Ch. K., Ill: Wake- 



TERM AT TALLAHASSEE, 1855. 161) 



Allen ▼«. Hawley — Opinion of Conrt. 

xnan vs. Gillepsy, 5 Paige Ch. R., 112 ; Cowles vs. Carter, 
-4 ibid, Eq. R. 150 ; Gibson vs. Tilton, 1 Blend, Ch. R., 
355 ; William vs. Berry, 3 Sterr & Port. R., 284. 

But there is no inflexible rule to this effect, for the gran- 
iing or continuing of the injunctions, must always rest in 
i;he sound discretion of the court, to be governed by the 
:nature of the case. This doctrine has been fully recog- 
nized and authoritatively established by this court, at its 
present term, in the opinion delivered in the case of Car- 
ter vs. Bennett, and is amply supported by the authori- 
ties therein cited. See also the following precedents : 

Roberts vs. Anderson, 2 John Ch. R., 204; Poor vs. 
Carleton, Summer R., 70; Bank of Monroe vs. Schermer- 
hom, 1 Clarke R., 303. 

In the case before us, although the equity of the bill is 
denied by the answer in terms, yet it shows a state of cir- 
cumstances which raises strong equities; and we think it 
would have been improper to have granted the motion for 
a dissolution of the injunction. And we are equally clear 
in the opinion, that the motion to vacate the appointment 
of the Receiver, ought not to have been granted. 

The fifth and last ground of appeal, is from "the order 
for the distribution of the funds arising from the sale of the 
Steamboat Quincy." 

Upon this head the record affords but very meagre infor- 
mation. There is nothing but the bare order, setting forth 
the names of the several distributees, with the amount 
due to each, and as there was no objection made in the 
argument to the correctness of these claims, we are to con- 
sider them as admitted to that extent. We understand, 
however, the position of the counsel for the appellant to be 
this, that the debts having accrued through the action of 



170 SUPREME COUBT. 



Allen vs. Hawley — Opinion of Court. 

the complainant, in having repairs made upon the boat, he 
and he alone, is responsible for such demands, and that they 
should not be charged upon the proceeds of the sale. To 
sustain this position, the counsel cited numerous authori- 
ties to the eltect, tliat one part-owner is not liable for re- 
pairs put upon a ship against his will, but that the part 
owner ordering tlie repairs will be alone liable for the 
same. The doctrine invoked by the counsel applies excta- 
sivelv to cases where tlie owners hold as tenants in com- 
mon, and not as copartners, and having already decided 
that the boat was partnership property, is not applicable vel 
this case. The converge of that proposition, when ap- 
plied to partnerships, is abundantly established by the au- 
thorities. It may bo laid down as a general principle that 
each of the partners has a specific lien on the partnership 
stock not only for the amount of his share, but for moniefi 
advanced by him beyond that amount for the use of the 
copartnership; and that tlie share of each, is the propor- 
tion of the residue, on the balance of account. Coll. on 
Part., (Perkins Ed. § 125—127 ; Story on Part., sec. 360- 
441. 

This disposes of the several grounds of appeal set forth 
in tlie appellant's petition of appeal, and it now remains 
for us only to remark briefly upon the general aspect of 
the case as presented by the record. It is quite apparent 
that the issue of this controversy has resulted most disas- 
trously to the interests of both of the parties, causing as 
it has the total absorption of waste of the entire prop- 
erty. This result might and ought to have been avoided, 
if that spirit of amity and good faith, which should always 
characterize the intimate and confidential relation of co- 
partners, had been properly observed. The hardship com- 



TERM AT TALLAHASSEE, 1855. 171 



Wilson & Herr vs. Hayward. — Statement of Case. 

plained of by the appellant is the legitimate fruit of his 
own conduct. Had he acceded to the very reasonable 
proposal of the complainant, to sell or purchase each oth- 
ers interests, the whole business might have been speedily 
and amicably adjusted, and a resort to the interposition of 
the court been avoided. But this, according to his own 
showinjg, he obstinately refused, and manifested a fixed deter- 
mination to oppose the interests of his copartner, even at 
the sacrifice of his own. The event has resulted in the full 
consummation of that purpose, and if blame is to attach to 
any one, he must take it to himself. 

The opinion of the court is, that the appeal be overruled, 
with costs; that the several interlocutory orders appealed 
from, do stand affirmed, and that the cause be remanded 
to the court below, for such further proceedings not incon- 
sistent with this opinion, as may be appropriate. 



Wilson and Herr^ Appellants, vs. Richard Hayward, Ap- 
pellee. 

1. In case of a mortgage to secure notes payable at different periods 
the note which first falls due has the prior right to be satisfied out of the 
mortgaged property, unless there is some peculiar equity attached to the 
notes of subsequent date, and so as to the other notes. 

2. In case of sale by a prior incumbrancer, the subaequent incumbrancer can 



172 SUPEEME COURT. 



Wllion & Herr vs. Hayward. — Statement of Case. 

^ » III . 

only complain by showing fraud In the sale, or that the property was more 
than sofflcient to pay both debts, and that something remains for his benefit 

Appeal from a decree of the Circuit Court for Leon 
County, sitting in Chancery. 

Bichard Hayward filed his bill in the court below against 
the appellants and D. C. Wilson, administrator of the es- 
tate of J. H. Lunn, deceased, alleging that J. H. Lunn in 
his life time, and in June, 1840, executed to one Robert K. 
West, five several promissory notes, each for the sum of one 
thousand dollars payable respectively on the fourth day of 
June, in the years 1841, ^42, '43, '^44 and '45, and to secure 
the payment thereof executed and delivered to said West 
a certain deed of mortgage covering a certain lot and pre- 
mises in the city of Tallahassee ; that on or about the sixth 
day of March, 1841, the said R. K. West assigned and deliv- 
ered to him, Hayward, the one of said notes payable in June, 
1845, and at the same time assigned and delivered to him 
the said mortgage. That J. H. Lunn died in 1841, and in 
October of that year, D. C. Wilson was appointed adminis- 
trator of his estate. 

He further alleges that Jos. C. Wilson and John H. Herr 
composing the firm of Wilson & Herr, having become the 
holders of three of the notes aforesaid given by said 
Lunn and secured by said mortgage, instituted after said 
notes became due, their suit by petition on the law side of 
the Superior Court for Leon County under the act to autho- 
rize the foreclosure of mortgages in the courts of common 
law, and obtained a decree of foreclosure under which the 
mortgaged premises were sold and purchased by the said 
Wilson & Herr. That the said judgment and decree in 
the alleged suit for foreclosure were not and is not binding 
on him, because he was not made a party thereto, had no 



TERM AT TALLAHASSEE, 1855. 173 



Wilson & Herr vs. Hayward. — SUtement of Case. 



otice of its institution, nor any opportunity to defend the 
^ame and to assert his rights in the premises. That said 
decree was obtained by Wilson and Herr by collusion with 
. C. Wilson or in their names for his use and benefit ; that 
. C. Wilson employed the counsel to institute the proceed- 
ings against himself for foreclosure, waived the filing of the 
X>etition in the clerk^s office four months before the first day 
of the term, waived the service of notice of intention to in- 
stitute suit four months before the first day of the term at 
"which decree was rendered and acknowledged it had been 
eo given, when in fact it had not been given, waived the 
iiling of the original deed of mortgage with the petition and 
the exhibition thereof to the Judge, required by the statute 
to be so filed and exhibited, and substituted a copy thereof 
from the record of deeds of Leon County without account- 
ing for the absence of the original, and he also waived the 
affidavit of petitioner or their agent or attorney as to the 
sum claimed to be due, which is required by the statute. — 
That the said D. C. Wilson not only wholly failed to make 
defence to said petition but wrongfully and collusively 
allowed, suffered and permitted said judgment and decree 
to be entered up and passed immediately upon the filing of 
said petition. 

Hayward further alleges in his bill, that the three notes 
held by Wilson and Herr, were received by them as collat- 
eral security, to secure the payment of a debt due to them 
by Robert K. West, and which debt was aftenvards fully 
paid by West. 

The bill concludes with a prayer for a foreclosure of said 
mortgage, and that the decree of foreclosure in favor of 
Wilson and Herr be vacated and set aside. 
The note held by Hayward, and the mortgage afore- 



174 SUPREME COURT. 



Wilson & Ilerr vs. Hayward. — Statement of Case. 

said, were made exhibits and filed with the bill. On the 
mortgage is endorsed the following assignment: 

'^Vhereas, Richard Hayward, has made himself respon- 
sible to Patterson and Hughes, for five thousand two hun- 
dred and fifty dollars, by endorsing his name on my paper, 
now in order to indemnify the said IIa}'ward, and save liim 
harmless, I do hereby transfer the within mortgage to him 
and for his use, until said debt and interest is satisfied. — 
Witness my hand this sixth day of March, 1841. 

Test : John Wilson. R. K. WEST. 

It was proved that Hayward had paid the debt to Pat- 
terson and Hughes, for which he was security for West. 

David C. Wilson, administrator of Lunn, in his answer 
says, that on the first day of June, 1841 R. K. West being 
indebted to Wilson and Herr, in the sum of two thousand 
seven hundred and twenty-three 49-100 dollars, for which 
amount R. K. West had accepted their draft, dated 16 Sept., 
1840, and being anxious to secure the same, and upon such 
security being given to obtain further credit, transferred to 
said Wilson and Herr three notes simed bv J. H. Lunn for 
the amounts stated. That he being the correspondent and 
agent of Wilson and Herr and the manager and superin- 
tendent of their interest received from West the said notes 
as collateral for the payment of said amount of indebted- 
ness; that when said notes were ofi!ered he, defendant, was 
of opinion that said West produced and offered five notes 
of the same amount, executed by J. H. Lunn, all of which, 
as he supposes, were secured by the mortgage which West 
also held and produced at the same time; that the impres- 
sion is strongly fi^ed on his mind that he saw the note held 
by Hayward, (if it is one of the five mentioned in the mort- 
gage aforesaid) in the possession of West posterior to the 



TERM AT TALLAHASSEE, 1855. 175 



Wilson & Herr vs. Hayward. — Statement of Case.. 



sixth day of March, 1841. He tliercfore denies that the 
note was transferred to Hayward at tlie time stated and 
requires proof thereof, S:c, He furtlier says that at the 
time he received the notes from West to secure Wilson and 
Herr, lie carefully examined the mortgage and tliere was 
then no assignment thereon. 

He admits that as agent of Wilson and Herr, and having 
in his possession the evidence of the debt from West, he em- 
ployed counsel for them and in tlieir names to institute tlie 
proceedings to foreclose the mortgage mentioned in the hill 
of complaint, but asserts that there was no propriety, ne- 
cessity or justice in resisting a claim of which he had full 
knowledge, and from which there was no escape, and that 
he wi.shed to save the expense which all attempts to delay 
or defeat the claim would have produced. That at the 
Bale of the mortgaged premises he caused the same to be 
purchased for Wilson and Herr and in their names, and 
that thev are now the owners thereof. 

Wilson and Herr allege in their answer that they became 
possessed of the three notes of J. H. Lunn by act of their 
agent, D. C. Wilson, who received them as collateral and 
to secure the payment of a draft of said Wilson and Herr, 
bearing date 16th of September, 1840, for two thousand 
seven hundred and twenty-three 49-100 dollars, drawn on 
R. K. West and accepted by him, that being the amount in 
which he stood indebted to them for goods furnished him 
previous to that time. They further allege that no pay- 
ments w^ere made by said West or any other person for him 
and on his account on said debt, and the whole amount 
thereof evidenced by said acceptance was due at that time 
of the foreclosure of said mortgage. They admit that D. 
C. Wilson, as their agent, had their interests in charge and 



176 SUPREME COURT. 



Wilson & Herr yg. Hayward. — Statement of Case. 

• 

that he placed their claim in the hands of counsel for the 
purpose of instituting proceedings. West afterwards be- 
came indebted to Wilson and Herr, in the further sum of 
$2336.26 for which they drew their draft which was ac- 
cepted. 

The draft drawn by Wilson and Herr on West, to secure 
which the Lunn notes were assigned, was filed and is as 
follows : 

Baltimore, 16th September, 1840. 
Dollars, 2723 49-100. 

Six months after date pay to the order of Mr. D. C. Wil- 
son, Twenty-seven hundred and twenty-three 49-100 dol- 
lars for value received. 

Your ob't serVts, 

WILSON & HERB. 
To Mr. B. K. West, 
Tallahassee, Florida. 

(Endorsed.) B. K. WEST. 

The following is a condensed statement of the accounts 
filed by Wilson and Herr with their answer : 

B. K. West, To Wilson & Herr. 

1840. 

Sept. 16. To Sundries $2723.49 

By arat. df't fav. D. C. Wilson, dated 

16 Sept., 1840 2723.49 



1841. 

March 19. To acceptance due this day impaid $2723.49 

June 25. To Sundries 2336.26 



$5059.75 



TEEM AT TALLAHASSEE. 1855. 177 



Wllaon & Herr ts. Hayward. — Statement of Case. 

^84S. CR. 

*^^^^O.e 24. By nett p'ds cotton per Kennebeck 

to Boston $243.47 

$4816.28 
'X'o acceptance due 16 March, 1841, $2723.49. 
^* " " 25 Dec, 1841, 2326.26. 

$5059.75. 
Xe88 p'ds cotton per Kennebeck, 243.47. 

$4816.28. 

B. K. West To Wilson & Herr. 

J«39. 

^ov. 13. To Sundries $1276.86 

840. 

ipril 10. To Sundries 683.83 

^^ug. 27. 5 p. c. Exchange on amount of our 

bill of 13 November, 1839, paid 
at Florida 67.20 



$2027.89 
1840. CR. 

Aug. 27. 

By amt. p'd to D. C. Wilson & Co., 
and deposited by them in Union 
Bank of Fla. as per certificate, $1366.46 
1841. 
Jan'y 30. 
By Union Bank Post Notes, 661.43 

$2027.89 
13 



178 SUPREME COURT. 



Wilson & Herr ys. Hayward. — Statement of Case. 

The petition in the suit instituted by Wilson and Herr, 
on the common law side of the Superior Court of Leon 
county to foreclose the mortgage aforesaid, appears in ev- 
idence in this case, on which is the following endorse- 
ment: 

"Due and legal notice of the within, aclmowledged by me 
this 22d August, 1843, all exceptions being waived as to the 
time required by the statute." 

DAVID C. WILSON, 
Am'r of J. H. Lunn, Dec'd. 
A decree was entered in said petition suit, at the ensuing 
fall term of Leon Superior Court, for a foreclosure and sale, 
no person appearing to object thereto. 

The following draft was filed as evidence in this cause 
by D, C, Wilson, together with the notes mentioned in the 
endorsement thereon : 

Tallahassee, January 6, 1842. 
Sir: — Please pay to the order A. K. Allison, Esq., one 
thousand dollars and place the same to the acc't of your 
ob't s'rt, EDW. M. WEST. 

To D. C. Wilson, Tallahassee. [endorsed.] 

Pay to the order of Mr. R. K. West — A. K. Allison. 
Rec'd and paid this draft by way of discount and settle- 
ment with R. K. West, taking up four notes, viz : 
One to D. C. and J. C. Wilson, and 

interest $120.51 

One to D. C. Wilson & Co., 380.22 

" " D. C. Wilson, 212.82 

" " " " " 160.32 



$873.87 



TERM AT TALLAHASSEE, 1855. 179 

Wilson & Herr vs. Hayward. — Statement of Case. 

T^he balance credited on account of 

R. K. West, 126.13 



$1000.00 
The following receipts are also in the record as evidence 
this case, 

Tallahassee, June 10, 1840. 
Mr. L. A. Thompson: 

Please pay to Messrs. Wilson & Co., tlie proceeds of 
ly claims against Thos. M. Bush, in your hands for col- 
lection, and oblige yours, &c., R. K. WEST. 

[Endorsed.] 
Eec'd from Thompson and Hagner the sum of nine hun- 
dred and fifty-two 72-100 dollars on account of proceeds of 
IBusVs note, specified within. DAVID C. WILSON. 

Aug. 7, 1840. 

Bec'd from Thompson and Hagner, the sum of seven 
liundred dollars, being balance of funds specified in within 
order. DAVID C. WILSON. 

August 10, 1840. 

Rec^d Tallahassee, Oct. 23d, 1841, of Mr. R. K. West, 
one thousand dollars, viz: nine hundred and three dollars, 
Life In. and Trust Co. money, and ninety-seven dollars 
Union; this is to be credited on a draft of twenty-seven 
hundred dollars and upwards, belonging to Messrs. Wilson 
and Herr of Bait. Should there be any difficulty in get- 
ting off or making use of the Life In. and Trust Co. money, 
Mr. West is then to take it back, or pay in its place Union 
money or its equivalent, DAVID C. WILSON. 

John Daffin, a witness for complainant, testified that in 
the spring of 1842, thinks it was in March of that year, be- 



180 SUPREME COUET. 



Wilson & Herr ts. Hayward. — Statement of Case. 

ing then engaged in business with B. K. West, he at the^^-^® 
request of West, handed him one thousand dollars to be^^^* 
paid to D. C. W^ilson, an account of a bill of goods which M^^ 

D. C. Wilson had purchased at the North for West. This ^* -" 
sum was for Wilson and Herr, and was to be paid to D. — ^ 
C. Wilson as their agent. West returned shortly after re- — " 

ceiving the money, and stated that he had paid it to Wil- 

son. Saw no receipt for it, but is of impression that Wil- — 
son told him afterwards, that West had paid him one thou- — 
sand dollars. The money handed by witness to West, was • 

to be applied to the payment of the account of Wilson and 
Herr, dated June 25, 1841. 

John Wilson, another witness examined on behalf of 
complainant, testified that the assignment of the mortgage 
to Hayward, was not executed in his presence, but was 
acknowledged by West, who requested him to witness said 
acknowledgment, which he did by signing his name at the 
bottom of said assignment. Does not recollect the date, 
but his impression was that it was sometime in the year 
1841. 

Robert K. West, another witness for complainant, testi- 
fied that the assignment of the mortgage to Hayward, 
was executed by witness, who was mortgagee, named in 
said mortgage, and that said assignment was executed on 
the day it bears date, viz, sixth of March, 1841, and at the 
same time he transferred to complainant one of the notes 
secured therein. He further testified, that in January, 1842, 

E. M. West sold some cotton to Wilson, and drew a draft 
on him, Wilson, for one thousand dollars, in favor of A. K. 
Allison, who endorsed it to witness. This draft witness 
declares was used or given by him to Wilson, to pay the 



TERM AT TALLAHASSEE, 1855. 181 



Wilson & Herr t8. HaywanL — Statement of Case. 

Lunn notes, and was not used in a settlement with D. C. 
Wilson, of his own private claims against witness. He 
further states, that on the same day a few minutes after the 
cotton transaction, he called on D. C. Wilson, and de- 
manded the notes already referred to. Wilson refused to 
give them up, saying that there was a balance of over 
three hundred dollars yet due, and when that was paid, he 
would give up the notes. He further testifies that he did not 
at any time exhibit the original mortgage to Wilson, it was 
at the time of the assignment of the Lunn notes to him in 
the possession of Richard Hayward, and had been since 
the previous March. 

In answer to the cross interrogatories West declares that 
the assignment to Hayward, was made because Hayward 
was security for him on a note to Patterson and Hughes, 
for $5250.00, and he wished to save Hayward harmless. — 
He further states at the time he made the assignment to 
Hayward, he had but one note, Wilson had such of the 
others as were unpaid, hence the reason of his assigning 
that particular note to Hayward. At the time of the trans- 
fer to Hayward, he says he had no other notes of Lunn, 
they had been transferred to Wilson. He further declares 
in answer to the thirteenth cross interrogatory, that he paid 
the debt evidenced by the acceptance of the draft dated 16 
September, 1840, to D. C. Wilson. He states that he can- 
not produce receipts for the different payments made 
thereon by him, as his store was broken open in 1849, and 
his pocket-book containing such receipts was stolen there- 
from. On being asked whether the account filed by Wil- 
son and Herr, commencing Nov. 13, 1839, did not exhibit 
correctly the proper charges and credits, and whether the 



182 SUPREME COURT. 



Wilson & Herr ys. Hayward. — Statement of Case. 

payments credited were not the only payments made by 
him, he states that he does not know whether the 
charges are correct or not. The credits he knows are not 
correct. The payments therein credited were not the only 
payments made by him on account of his indebtedness to 
Wilson & Herr. His receipts for other pajrments were 
lost with his pocket-book, which was stolen as before de- 
clared. 

E. M. West another witness examined for complainant, 
says, that he has seen receipts of David C. Wilson, to and 
in possession of R. K. West, within twelve months ante- 
rior to the taking of his deposition — has no recollection of 
their amount — they were receipts for so much money with- 
out specifying on what account. Does not know where 
they are. That in 1842 he drew an order on D. C. Wil- 
son in favor of A. K. Allison for $1000 with the under- 
standing that Allison was to transfer said order back to 
said Wilson for and on account of R. K. West. Knows 
of no payments made by R. K. West or any one else on 
the draft accepted by R. K. West, either to D. C. Wilson 
or to Wilson & Herr. The draft or order drawn by him 
on Wilson was to be applied to the general account of E. 
K. West, witli said Wilson, or such was his impression, as 
he knew of no particular bills or accounts between them. 
So far as he was concerned, R. K. West was at liberty to 
apply the said order as he saw fit. 

David C. Wilson was examined as a witness on behalf 
of Wilson & Herr, who testified that he acted as agent for 
Wilson & Herr in their business transaction with R. K. 
West. He further states that the accounts filed by Wilson 
& Herr are correct, and that the drafts therein mentioned 



TERM AT TALLAHASSEE, 1855. 183 

Wilson & Herr vs. Hayward. — Statement of Case. 

and also filed by them of date 16th September, 1840, and 
25th June, 1841, were never paid or satisfied. lie further 
testified that R. K. West, was indebted to him previous to 
March, 1841, for which on that day he gave his several 
notes, promising to pay the same out of the proceeds of 
his cotton crop then growing, if lie, witness, would con- 
tinue to furnish him, West, which he did, to the amount of 
$157.34—100. In the fall of 1811, R. K. West, delivered at 
the Railroad Depot, 39 bales of cotton in the name of his 
son, and had it stored in tlie name ot* witiies^s. E. M. 
West called on witness and demanded an order for the 
cotton, which was refused, until the notes of West to him, 
Wilson, individually and the account for supplies were 
paid. The said E. M. West declared the said cotton was 
not subject to the debts of R. K. West. Witness after- 
wards agreed to purchase the cotton, retaining one thousand 
dollars of the purchase money to be applied to the said 
notes and account of R. K. West to him individually. — 
This was done by the draft in favor of Allison, endorsed 
to R. K. West, and by the latter turned over to witness, 
and applied as stated. He states that the notes of West 
to him individually, were subject to the order of West, 
but he never called for them. He further declared that the 
notes of Lunn, were taken to secure the draft dated 16 
September, 1840, which draft never was paid by R. K. 
West, or any other person. He received in the latter part 
of 1841, the exact time not recollected, from R. K. West 
or John Baffin, one tliousand dollars on account of the two 
drafts of Wilson and Herr, and from the positive declaration 
of John Baffin, he is satisfied this payment was made on 
account of the draft of 25 June, 1841. Has no recollec- 
tion of any other pa^Tiients. 



184 SUPREME COURT. 



Wilson & Herr vs. Hayward. — Statement of Case. 

The complainant at the proper time objected to the 
competency of David C. Wilson as a witness for Wilson and 
Herr, because he was a party to the record, and because 
of his interest to defeat the complainant in the remedy 
sought by his proceeding. 

The Court below, decreed the sale of the premises un- 
der the decree of foreclosure in favor of Wilson and Herr, 
to be set aside, vacated the said decree, and directed the 
parties to be paid according to their respective interests, 
out of the proceeds of the mortgage premises when sold, 
in pro rata shares; and to ascertain the amount of their re- 
spective interests, a reference was made to a master. 

From this decree Wilson and Herr appealed. 

D. P. Hogue for Appellant. 

1. The appellant had a right to foreclose the mortgage as 
they did, either at law or in equity. The statute gives 
the right when the debt is due, both to the mortgagee and 
assignee. 

The appellants were assignees of the three notes receiv- 
ed by the mortgagee, which fell due before the note held 
by the appellee; and it is unnecessary to cite authority to 
maintain the position, that the assignment of the notes 
carries with it the security of the mortgage. 

2. Where there are several notes secured by the same 
mortgage, the right of the assignee of one note to foreclose 
when the note falls due, necessarily* results from this doc- 
trine: He is not bound to wait until all the notes fall 
due, but may proceed when the mortgage debt is due, and 
he is entitled to the whole mortgage subject, if it takes it 
all to pay his demand. (1 Bibb 150, 1 Randolph 466, 10 
Smeede & Mar., 631, 6 Howard, 320.) 



TERM AT TALLAHASSEE, 1865. 185 

' I I I. I.I , 

Wilson & Herr vs. Hayward. — Statement of Case. 

3. In Alabama it has been held that the first assignee of 
one of several notes is entitled to priority of satisfaction 
out of the mortgage property. (See 4 Ala., 452; 9 Ala., 
648.) 

4. In this case the appellants were not only the as- 
signees of the notes which first fell due, but they were, as the 
evidence shows, actually prior assignees; for it is not 
proved on the part of the appellee, that 'he held the mort- 
gage deed by assignment anterior to the date of the trans- 
fer of the notes held by appellant. 

5. The assignment of the mortgage without the debt is 
considered to be without meaning or use. In this case, the 
assignment of the mortgage is clearly defective, not being 
under seal. (5 Halst, 156.) 

6. The appellee, if entitled to any thing, is only entitled 
to a pro rata share of the proceeds of the sale under the 
first foreclosure, and this he can only have upon a bill filed 
against the purchasers, who are the appellants — Wilson 
and Herr. He cannot have a decree of foreclosure a- 
gainst D. C. Wilson, the administrator of Lunn. (2 Flor- 
ida, 27.) 

7. As to the substantial compliance of the administra- 
tor with the requirements of the statute, I think there 
can be no doubt ; the notice given fully meeting the views of 
this court in the case of Laverty vs. Filyaw. (2 Fla.) — 
The claim of the appellee was not presented within the 
time prescribed by law. (Thom. Dig., 206.) 

8. The appellee has slept upon his rights, if he had 
any, and is not now entitled to the favor of a Court of 
Equity. 

9. The decree of the court below is erroneous, because 



186 SUPREME COURT. 



Wilson & Herr vs. Hayward. — Statement of Case. 

it makes no allowance for improvements of great value 
upon the premises. 

10. The first decree of foreclosure, and the sale under 
it, having been made by a court of competent jurisdiction, 
upon a subject properly before it, ought not to be vacated 
and set aside, unless it was obtained by fraud or collusion, 
and of this the record furnishes no proof. 

M. D. Pappy, fot Appellee. 

The judgment of foreclosure in favor of Wilson and 
Herr, is a nullity as to Hayward and is not binding on 
him, because, 

1. He was not made a party to the proceedings, al- 
though he was not only interested as the holder of one of 
the notes, secured by the mortgage, but was the legal hold- 
er of the mortgage itself by assignment, and 

2. Because the said judgment of foreclosure was not 
warranted or authorized by the statute under which tho 
proceedings were had. 

"The party claiming a judgment of foreclosure at law, 
shall be the owner of all the notes, the mortgage was giv- 
en to secure, and without it is not entitled to judgment. 
(Wilson, Adm'r of Lunn vs. Hayward, 2 Fla, R., 27.) 

There can be no foreclosure until the parties entitled to 
the whole of the mortgaged premises are before the 
court. (1 Eng. Chy. R., 215, 217, 1 Bro. Chy., 368.) 

Wilson and Herr as assignees of some of the notes secured 
by the mortgage, had no such interest in the mortgage itself 
as authorized a foreclosure at law, for the assignment of 
the notes did not carry the mortgage at law. In Equity 
the assignment of the debt carries with it the mortgage 
through the medium and circuity of a trust by implica- 



TERM AT TALLAHASSEE, 1855. 187 



Wilson k Herr vs. Hayward. — Statement of Case. 

tion. (1 Story's Eq., 353, Roberts on Fraud?, 272, 4 
Pick., 131.) 

Such was the view of the Legislature, for the statute of 
this State in reference to mortgages authorises, the as- 
signee of a mortgage to take the steps and pursue the 
same remedies as the original mortgagee, and it declares 
that all petitions for the foreclosure of mortgages under 
and in pursuance of its provisions, together with the origi- 
nal mortgage, shall be filed in the clerks office at least four 
months, when the foreclosure is to be of real propert}', 
and two months if of personal, before the term of the court 
at which judgment of foreclosure can be demanded. — 
(Thomp. Dig., 376, 377.) 

To entitle a petitioner to pursue the remedy provid- 
ed by this statute, he must be the legal holder of the 
mortgage, for if he is not such legal holder, he not only 
cannot according to general principles, pursue any legal 
remedy, but he cannot file the original mortgage as re- 
quired by the statute. As assignees, of the notes sim- 
ply, the remedy of Wilson and Herr to foreclose the mort- 
gage was in Equity, for it is only in that court that the 
proper parties could be made, and that court only has the 
power to declare through the medium of a trust that the 
assignees of a note secured by a mortgage, is entitled to 
the benefit of the security. If it be true that Wilson and 
Herr had no interest in the mortgage at law, it having 
been assigned to Hayward, how could they have obtained a 
foreclosure at law, except by collusion with or the default 
of D. C. Wilson, admi'r of Lunn. And can it be held to be 
law, that Hayward who was not made a party to the pro- 
ceedings, who held the original mortgage by assignment, 



188 SUPKEME COFBT. 



Wilson 4b Herr vs. Hayward. — Opinion of Conrt 

is to be concluded by the judgment rendered in favor of 
Wilson and Herr. 

2. Hayward having received the assignment of the 
mortgage^ and one of the notes prior to the time^ when the 
other notes were assigned to Wilson and Herr, as we con- 
tend, is entitled to priority. (4 Alabama, 452, 9 Ala., 646.) 
The written evidence of the assignment is better than any 
of the declarations of the witnesses. 

3. At all events Hayward is entitled to a sale of the 
mortgage premises, and to a pro rata share of the pro- 
ceeds, and if not such pro rata share, then to the surplus 
that should remain after paying Wilson and Herr what is 
due on the draft, (if any thing remains due,) to secure 
which the Lunn notes were assigned. 

4. The evidence of D. C. Wilson should be rejected, be- 
cause he is a party to the suit, and because he is interested 
to defeat the complainant. 

BALTZELL, C. J., delivered the opinion of the court. 

Tliis case was before us at the January term, 1848, on an 
application of the defendant, Hayward, to foreclose imder 
the common law proceeding of this State, a mortgage ex- 
ecuted by James Ijunn. The proceeding was against the 
administrator of Lunn, who resisted the application on 
the ground that other parties holding notes of prior date, 
had already foreclosed and had sale of the mortgaged pro- 
ertv. 

The court considering that if the party had rights, they 
could be more appropriately asserted in equity than in a 
court of law, and especially that the purchasers under the 
sale already had, should be made parties so that a second 
sale should be avoided if possible, and the conflicting rights 



TERM AT TALLAHASSEE, 1855. 189 

WilMii 4b Herr ti. Hajward. — Opinion of Coart 

and interests, of the different parties properly adjusted, 
sent the ease back with that view. It is now before us, 
"with new parties and the facts presented are as follows : 

Bobert K. West was the owner of a mortgage on part of 
lot 167, in Tallahassee, executed to him by James Lunn, 
on the 4th day of June, 1840, to secure payment of five 
promissory notes, for one thousand dollars each, paya- 
ble the 4th days of June, 1841—42—43—44 and '45. 

The first note seems to have been paid, the second, third 
and fourth, falling due in 1842 — 43 and '44, were assigned 
and transferred by West on the first day of June, 1841, to 
Wilson and Herr. On the 22d of August, 1843, two of these 
notes having become due, these parties filed their petition 
of foreclosure, and in January, 1844, procured a decree or 
judgment of the Superior Court for Leon county, under 
which the property was sold to pay said debt by the mar- 
shal. 

The complainant, Hayward, claims to be the assignee of 
the last note, and of the mortgage by transfer bearing date 
the 6th of March, 1841. His bill alleges that the deci-ce 
of Wilson and Herr, was obtained by collusion and thfit 
he is entitled to prior payment by virtue of his previous 
assignment, as well of the note as of the mortgage. 

The enquiry becomes an important one in the very out- 
set, whether Heyward in fact has the prior assignment. — 
Li his bill he proposes to the defendants the question di- 
rectly and expressly, whether West did not on or about 
the 6th of March, 1841, indorse and deliver the said note 
of Lunn, for one thousand dollars, and whether he did not 
at the same time assign the mortgage. In reply to this, 
D. C. Wilson says: "when the notes received by him for 



190 SUPEEME COURT. 

Wilson k Herr vs. Hayward. — Opinion of Court. 

Wilson and Herr, were offered, he is of opinion that saL ^ 
West produced and offered five notes of the same amouo^t 

executed by the same person, all of which, as this defei i- 

dant supposes, were secured by the mortgage which sai AA 

West held and produced at the same time. That if tht — r\e 
note which complainant holds is one of the five notes mei 
tioned in said mortgage, it could not have been assig: 



-sar 



and transferred to him on the 6th of March, 1841, if he is co»^^^^" 
rect in the impression strongly fixed on his mind, that he sa' «^st^ 
said notes in the actual possession of said West, at a da#^-^te 
posterior to the said 6th of March, He therefore deni^ inea 
and calls for proof of the time of the alleged transfer •" ^^ 
complainant. 

Robert K. West is questioned for complainant on tliL « "^'^^ 
point, and says in his direct examination, the assignmer::^^^^^ 
of the note and mortgage were made at the day they bei 
date, 6th of March, 1841. 

In his cross examination however, being asked ho^ 
many notes he had in possession at the time of this assii 
ment to Hayward, he says he had but one, Wilson had th^r^e 
other two, hence the reason of my assigning that particula-^^*'' 
one to Hayward. Again, being asked at the time of 
transfer to Hayward how many of said notes of Lnnn h 
had assigned, he replies, "that at the time of the transfer t- 
Hayward he had assigned none but the two and those 
D. C. Wilson, making in all three notes." Again asked LI 
he had other notes of Lunn in his possession falling du ^ 
anterior to this transferred to Hayward, why he did not 
transfer them also, his reply is, "I had no other notes o/ 
Lunn at the time, they had been transferred to D. C. Wil- 
son." His account of the transfer to Hayward is as fol- 



TERM AT TALLAHASSEE, 1855. 191 

Wilson k Herr vs. Hayward. — Opinion of Court. 

ows: "I made this assignment because Hayward was se- 
urity for men on a note to Patterson and Hughes for $5,250, 
ind I wislied to save him harmless. When I found the 
rush was coming upon me I went to him and told him of 
t and said to him here take this, satisfy yourself and gave 
lim the mortgage and the note of Lunn attached to it." — 
ndependent of the repeated declarations by him that he had 
^signed the prior notes to Wilson and Herr, this last statc- 
nent strikes us as corroborating it with great force. Why 
f he was so anxious to secure Haywood in so large a sum 
md had four notes secured by mortgage, does he give only 
me for $1000 and that, the last due of five and payable at 
he distant period of four years? 

We are of opinion then that Haywood took his note and 
he assignment of the mortgage after the other notes were 
issigned to Wilson and Herr. Having ascertained that the 
lotes obtained by the latter fell due first and were assign- 
id and transferred first, the question arises as to the law of 
he case. As a general rule the assignment of a note se- 
ured by mortgage is in equity an assignment of the mort- 
gage unless there is some special provision by the parties 
o the contrary. Where several notes have been assigned 
LS in the present case lies the difficulty. 

The first case on the subject was decided by the Court 
>f Appeals of Virginia, and is the leading ease. A deed of 
ru.it was executed by William and Francis Sutten to trus- 
ees to secure payment of three notes to Barrett. The first 
lote was paid, the second transferred to Ragland without 
iny assignment to him of the deed of trust, the third en- 
lorsed to the Gwathmeys who took an assignment of the 
leed of trust for their security. The trustees having ad- 



SUPREME COURT. 



WllBon & Ilerr ts. Hayward. — Opinion of Coart. 



Lsed the land for sale to pay Ragland's claim, 
ithmeys filed a bill against Ragland and the Trustee 
>in them from selling the property. An injunction wj 
inted which was dissolved and the case taken 

Court of Appeals. The Court say that the 
Trust being intended by the parties to it as 
Itional security for the payment of the notes to Barrett 
[is assigns in the order in which they fell due, it foUowe- 
[he notes into the hands of several holders thereof an 
;hat it was not competent to Barrett by an assignment 
the deed to the Appellants, without the assent of the AppelT 
lee, to whom the second notes had been assigned to deprr 
him of his priority of right to demand a sale of tl^e proper: 
ty, if necessary to the payment of the note assigned in th 
order of payment expressly directed by the deed. Th 
deed being assigned to the appellants, gave them full n< 
tice of the order in which the notes were to be paid to Bar^— 
rett or his assigns, and at least, put them on the enquii^i?' 
whether the first and second notes had been paid at th^ 
time they took the assignment of the tliird note and of the 
deed of trust. By not making that enquiry, if they relied 
on the trust fund as security for the payment of the note 
assigned to them, they may have lost their money; howev- 
er that may be as against the appellee, the court is of opin- 
ion that he has no claim to be preferred. Gwathmeys vs. 
Ragland, 1 Rand. 466. 

The Supreme Court of Indiana says: "the meaning 
and constniction given to a mortgage payable at diflFerent 
times by several promissory notes, must depend upon the 
law of the remedy upon such notes or mortgage for these 
contracts as well as others are made under and with an 



TERM AT TALLAHASSEE, 1855. 193 

Wilson & Herr vs. Hayward. — Opinion of Court. 

^^e to the laws governing their enforcement. In this State a 

^^ortgage may' be foreclosed, when there are instalments, 

Cin default of payments of the first instalment. The holder 

of the first note may, if he chose, when that becomes 

^lue, enforce the full payment of it out of the mortgaged 

premises, and the holder of the second note may in like 

manner obtain priority over the third, and so on. State 

Bank vs. Tweed's, 8 Black, 447. This is also the rule in 

Xew Hampsliire, 10 N. H. 

In Alabama a different rule prevails; there the prior 
assignment seems to give preference of payment in case 
of deficiency of the mortgage fund. (Collum vs. Erwin, 4 
Alabama, 458.) 

In that case the court admits that in 5 Porter and also 9 
Porter, 527, McVoy vs. Bloodgood, the same court had 
decided that the assignee of the notes which first fell due, 
would have the prior right. They say that the same de- 
cision witli the one established bv them was made in 
Gwathmey vs. Ragland, under precisely a similar state of 
facts. 

They also refer to Van Rensaleer vs. Hopkins, decided by 
the Supreme Court of New York. In reference to thi:3 
case as well as the one just alluded to, we think that intel- 
ligent court was mistaken. Van Deusen says the court had 
two mortgages, the first he assigned to Van Rensaleer for 
$1180 ; though made to him it was intended for the use of Van 
Ransaleer, and to secure him the unpaid balance of the 
land which he had sold Van Deusen. Van Deusen there- 
fore in effect received and held the mortgage for $1180, 
in trust for Van Rensaleer, and his intention was that this 
mortgage should become the first incumbrance by a prior 
registry, &c. 

14 



J 94 SUPREME COURT. 



Wilson & Herr vs. Hayward. — Opinion of Court. 

The assignment to Van Rensaleer was thus not me 
ly an arbitrary preference by Van Deusen of the 
mortgage to the mortgage retained, but it was a just 
charge of duty, a fulfillment of the confidence which 
Rensaleer had reposed in Van Deusen, and a substant i^ 
compliance with the antecedent rights of the parties. 1 

Hopkins. 

It is very true that the prior assignment is alluded -^t^^J? 
but it will be perceived that the case is principaV l3' 
decided upon the peculiar equities of the case as exi 
ing between the parties. Equally unfortunate is 
reference of the court to and reliance upon the case 
Gwathmeys vs. Ragland. We have seen already that t 
case is not authority for payment to the party having t 
first assignment or transfer of the note, in preference to tF 
one whose note fell due first. 

In Mississippi a different rule still is held, as the 
courts divide the proceeds of the sale of the mortgage pr 
perty amongst all the notes agreeing with none of the a 
thoritios to wliich we have alluded. Here again the Vi 
ginia case is regarded as not being in conflict witli the ml 
established by them. The leading case is that in G JIowarA 
320, and with due respect to the very high intelligent^ an 
ability of that tribunal, the equity of the case and l!i^ 
rights of the parties depend on the peculiar facts and cir- 
cumstances of the case, rather chan the maintenance of 
any rule or principle of law obtained from the authorities 
cited. 

^^^lilst we are free to declare our own opbiion in favor 
of the Virginia rule as best agreeing with analogy, ss 
most certain and definite, leaving less to uncertainty and 





i 



TERM AT TALLAHASSEE, 1855. 195 

Wilson A Herr vs. Bayward. — Opinion of Court. 

confusion, whilst we admit that there are equities to 
change its application, as in the New York and Missis- 
sippi cases, and in the case of a mortgagee claiming after 
the assignment of part of the mortgage debt, yet it is un- 
necessary in the present case to assert the superiority either 
of the rule of the Va. or Ala. courts. It is sufficient that the 
adoption of either is fatal to the case. The complainants 
Wilson and Herr have the first assignment of the 
notes; their notes were first due by the terms of the 
mortgage. They obtained a decree of foreclosure in Jan- 
uary, 184r4, and the property was sold on the fourth of 
March, 1844, upwards of a year previous to the time Hay- 
ward's note became due. If Hayward has an equity, it 
must be because the property is worth more than the 
claim of Wilson and Herr, or there has been irregularity or 
fraud in the sale to invalidate it. 

There is no allegation in the bill as to the value of the 
property, no assertion that it is more than sufficient to pay 
the three first notes. The complainants' bill is predicated 
on his prior right and equity. The amount bid at the sale 
is no where stated, tho' Wilson says in his deposition, "the 
.property brought but a small proportion of the draft ($2,- 
729). There is then no propriety in ordering another sale ; 
this would be a vain and fruitless thing. 

Is there an irregularity in not making Ha}^ard a party to 
the judgment of foreclosure. As a general rule all incum- 
brancers should be parties. Prior incumbrancer's rights 
are paramount, and they would seem to be necessary if not 
indispensable parties 7 Paige 444, 2d Alaba. 415, 2 Ed 
Chy. 127. 

A subsequent incumbrancer is not an indispensable par- 



196 SUPREME COURT. 



Wilson k Herr vs. Hay ward. — Opinion of Court 

ty Culhim vs. Batie, 2nd. Ala. 415, Walker vs. Bank Mob. 
6 Ala. 452. 

A second incumbrancer is only affected and can only 
complain when there is a surplus after paying prior liens. 
His right to the surplus cannot with propriety arise until 
it shall be ascertained that there is a surplus, and this c»an- 
not be shown before the mortgaged premises have been 
sold and the debt of the prior incumbrancer with all coses 
fully discharged. 2 Alabama 422. 

The English practice is to allow the subsequent mort- 
gagee to redeem by paying ,up the prior mortgage. Coote 
522. 

It remains to notice another allegation of the bill, that the 
judgment of Wilson and Herr was obtained by fraud; tlie 
defendants employed counsel to institute suit against him- 
self — waived the filing of the petition four months before 
the first day of the term; waived the filing of the mortgage 
and substituted a copy thereof, and wrongfully allowed judg- 
ment to be entered up immediately. The answer of the 
parties denies collusion, and we find not a particle of proof 
to support it. The facts stated even if true, by no means 
constitute fraud. The defendant alleges that he had no 
defence to the suit and desired to avoid delay and expense; 
what objection then was there to a direct confession of 
judgment without previous preliminary proceedings? 

In the case of Finlev vs. Bank U. S., the bill was filed at 
the November term, stating the consent of the mortgagor 
to an immediate sale of the mortgaged property although the 
day of payment had not arrived, and on the same day an 
answer was filed consenting to a decree for the sale. A 
decree was immediately entered by consent of parties di- 



TERM AT TALLAHASSEE, 1855. 197 

Wilson & Herr vs. Hayward. — Petition for Rebeartng. 

•ecting the Marshal to sell the property, and yet no one 
complained of this as irregularity, much less fraudulent, al- 
though the decree was assailed by a prior mortgagee. 11 
'Vrh. 304. 

Independent of this, it is not allowable to attack a judg- 
ment collaterally by asserting irregularities that might 
form the subject of reversal in an appellate Court. A judg- 
ment concludes the subject on which it acts, and those things 
are regarded as proved and done which ought to have been 
proved to entitle the party to judgment. Grignon's lessee 
vs. Alston, &c., 2 Howd. S. C. R. 343, 3 Peters 204, 5, 10 
Peters 473. 

On the whole case we see no ground for disturbing the 
sale or for ordering another sale. The decree of the Cir- 
cuit Court will therefore be reversed and set aside, and the 
case remanded with instructions to dismiss the bill with 
costs. 



The following petition for a re-hearing was afterwards 
filed : 

PETITION FOR REHEARING. 

Richard Hayward, appellee in this cape, asks the Court 
for a re-hearing of this cause, on the following grounds : 

I. The Appellee's Counsel in this cape supposed the case 
as was ordered by the decree of the Court below, would be 
referred to a master, to ascertain the amounts due respec- 
tively to Hayw'ard and to Wilson and Herr, when it could 
be shewn that nothing was really due to the latter and 
therefore, he did not think it proper to discuss it here. But 
as the Court orders the bill to be desmissed. Appellee res- 
pectfully asks the Court to open the judgment in this case, 



]98 SUPREME COUBT. 

Wilson & Herr vs. Hayward. — Petition for Rehearing. 

that he may now be permitted to show that the debt to 
Wilson and Herr was fully paid before they obtained their 
foreclosure at law. 

II. The debt due for which West assigned the notes to 
Wilson as collateral security, has been paid. 

It appears from the answers of D. C. Wilson, and of Wil- 
son and Herr, that on the IGth day of September, 1840, 
West only owed Wilson and Herr $2723.49, for which a- 
mount, thev drew a draft on West in favor of D. C. Wil- 
son, and which draft was accepted by West. No other 
'evidence of indebtedness exists in the record. Wilson states 
in his answer that "on the first day of June, 1841, \yest be- 
ing indebted in the sum of $2723.49, for which amount. West 
had accepted their draft, and being desirous to secure it and 
upon such security being given to obtain further credit," &c. 
Wilson and Herr says that the sum of $2723.49, the amount 
of the draft, was the sum due them for goods, &c.,/wmtsA- 
ed before that time. From all this, it is clear, that no other 
sum was due from West than the amount of said draft. — 
There is no pretence that there was any other sum due to 
which any subsequent payment by West could be applied. 
Certainly there is no proof of any other indebtedness. — 
Neither Wilson nor Wilson and Herr pretend or allege that 
there was any other indebtedness. See the answer of D. 
C. Wilson and of Wilson and Herr. To secure then the 
only indebtedness from West to Wilson and Herr, on the 
1st June, 1841, West assigned the notes mentioned in the 
record as collateral security, which notes were to be re- 
turned when the draft for which they were a security should 
be paid. We repeat there is neither proof nor pretence 
that there was any other indebtedness from West on the 



TERM AT TALLAHASSEE, 1855. 190 



WllfioD & Herr ts. Hayward. — Petition for Rehearing. 

first day of June, 1841, than the draft for $2723.49. 

Now if that sum was all he owed them at that time, the 
next question is what has he paid them since the draft was 
given which ought to be credited on it. 

'The first payment of which we have any evidence is 
that of $661.43, made on the 30th January, 1841, as ap- 
pears from their accounts filed with their answers. This 
credit, it is true, is placed on account for $2027.84, but 
let it be recollected that this account is all for goods furn- 
ished before the date of the draft for $2723.49, and which 
latter amount, by the answers of Wilson and Herr and D. 
C. Wilson, was all that was due Wilson and Herr at the 
date of the draft, viz : 16th September, 1840. This account 
it will be seen, was for 1839, &c., and consequently does 
not and did not constitute any evidence of debt, especially 
as the defendants tliemselves do not claim any other in- 
debtedness up to 16th September, 1840, than the amojint 
of the draft. It was asked why this amount of $661.43 
not credited on the draft ? 

Can it be said that it was appropriated by Wilson and 
Herr to the payment of an indebtedness other and anteri- 
or to the draft, for goods sold before the date of the draft. 
We answer that there is no evidence or even pre- 
tence of anv such indebtedness, but on tlie contrarv, Wil- 
son and Herr in their answer say that the draft was the 
amount in which West stood indebted for goods furnished 
previous to its date. No witness swears to any debt, nor 
does West acknowledge any but the draft. The simple 
presentation of an account subsequently, without any evi- 
dence, and against their own statements, does not author- 
ize them to apply a payment made subsequently to the 




»0 SUPEEME COUET. 



Wilson & Herr ts. Hayward. — Petition for Rehearing. 

date of the draft, which they acknowledge was all that 
was due to tliem. 

Tlie account is evidence of the payment to them, but no 
evidence of indebtedness. Even if the account was cor- 
rect, it should have been proved, but we cannot presume 
it to be true, when the parties themselves say the draft 
was all that was due. But if it is claimed that this ac- 
count is just and correct, let us enquire if it was not itself also 
paid. By it it appears that in August, 1840, West paid D. 
C. Wilson $1366.46, and by the receipts in the record, it is 
seen that Thompson and Hagner paid to Wilson 7 August, 
1840, $952, and 10 August 1840, $700 by order of West. 
These last two sums together, make $1652, yet we find no 
credit for them anywhere. Tliis will go to strengthen the 
declaration of Wilson and Herr themselves, that on 16th 
September, 1840, the amount of the draft was all that 
was due to them. Again, the item in said account,) 
dated 27 August, of "5 p, c. er change on amount of our bill 
of 13 November, 1839." (The very date of this account, 
"paid at Florida," shows that this bill or account was 
paid when the draft of 16 September, 1840, was accepted, 
and furnishes still stronger proof, (although there is no 
proof of such indebtedness,) that Wilson and Herr were 
right when they say in their answer that the amount of 
the draft was all tliat was due them. 

But why multiply instances when the parties them- 
selves make no pretence of such a claim. There be- 
ing no such claim, then the payment of $661.43, as of 
30th January, 1841, should go as a credit on the draft. 
We cannot go beliind the draft of 16th September, 1840, 
to enquire into the state of the accounts before that time. 



TERM AT TALLAHASSEE, 1865. 201 

Wilson & Herr tb. Hayward. — Petition for Rehearing. 

The defendants say themselves that the draft was for 

$2723.49, "that being the amount in which he stood indebted 

for goods furnished previous to that time," But if they had 

not said so, the presumption of law would be the same, 

/or the law will not presume that a creditor will do so 

foolish a thing as to take the acceptance or promissory note 

of his debtor for a subsequent debt, and leave a prior debt 

xxnprovided for. The law presumes a prior debt, in such a 

oase, to have been paid. 

We will take the 16 Sept., 1840, as our starting point. 

-At that date West owed D. C. Wilson or Wilson and Herr 

^ sum which with interest on it for six months, (the time 

^vrhen the draft became due,) made it amount to $2723.49 

:Sov which West accepted a draft. One month and half 

T)ef ore the maturity of the draft, to wit : 30 January, 1841, 

^West made a pajrment of $661.43-100, he is entitled to in- 

'terest on this pajrment until the maturity of the draft, to 

wit: $2.29, which with the principal makes $663.63. — 

Deduct this from the draft and it leaves on the draft 

$2059.86, due 16 March, 1841. 

The next payment, (see Wilson^s receipt in the record,) 
was made on 23 October, 1841, amounting to $1000.00. — 
Wilson in his answer to the fourth interrogatory, states 
that he is satisfied this payment was made, for and on 
account of a draft for $2336.26, and yet his receipt shows 
the contrary. 

On the production of this receipt, Wilson^s counsel aban- 
doned such application, and yielded the point that the 
payment was made on the draft for $2723.49. This shows 
how much Wilson's recollections are' to be relied on. Add 
now the interest (97) from 16 March, '41, to 23 Octo- 



202 SUPREME COUBT. 



WllsoD & Herr vs. Hayward. — Petition for Rehearing. 

ber, ^41, to $2059.86, the balance due on the draft on 16 
March, and we have $2156.86, and then credit the pay- 
ment of $1000.00, there remains $1156.86 due on the draft 
on 23 October, 1841. 

The next credit we contend for, is that of $1000.00 made 
January 6th, 1842. It is true of this payment as of the other 
that D. C. Wilson denies that it was made as a pa3rment 
on this draft. Being mistaken as to the other we will show 
that he is equally so as to this. But before discussing his 
testimony in regard to this payment, I premise that his 
testimony should be entirely rejected. 

1. Because he is a party to the record, &c. 

2. Because of his interest in the case. 

The objection to Wilson's competency was made before 
he was examined, as tlie record will show. A party to 
the record is sometimes allowed to be examined as a wit- 
ness, but only where an order of court for that purpose 
is first had and obtained. 

Again, he is clearly interested. He claims a riglit here 
by his own testimony, of appropriating to himself a pay- 
ment which West, who made it, swears was appropriated 
by him, at the time, to the draft, or to Wilson and Herr. 

If the court shall decide upon his testimony that he 
properly retained for liimself the payment, he makes a 
thousand dollars. If the court slmll decide on the testi- 
mony of West, that the payment was on the draft to Wil- 
son and Herr then he loses a thousand dollars. I can im- 
agine no clearer case of interest. But let us continue to 
pursue the facts. 

We have in evidence a check drawTi by E. M. West on 
D. C. Wilson for the amount of this last payment in favor 



TERM AT TALLAHASSEE, 1855. 203 

Wilson & Herr vs. Hayward. — Petition for Rehearing. 

A. K. Allison who endorses on it, "pay to the order of R. 
;. West/* Then we have the positive assertion of R. K. 
AfVest that his order was that it should be applied in pay- 
:Knent of the draft to secure which the Lunn notes were as- 
signed. West in answer to the nineteenth cross interroga- 
'tory, says: "It was not used by me in a settlement with 
D. C. Wilson, but was given to pay the Lunn notes." A- 
^ain, in answer to the 4th question he says: "on the same 
<iay a few minutes after the cotton transaction, I called on 
3). C. Wilson and demanded the notes already referred to. 
'Wilson refused to give them up, saying there was a bal- 
ance of over three hundred dollars yet due." This makes 
out a plain case. The check is endorsed pay to the order 
of R. K. West, and West swears that his order was that it 
should be paid on the Lunn notes. A debtor has the right 
to apply a payment to whatsoever debt he pleases. This 
principle is always recognized in every court. David C. 
Wilson, without denying this, seeks to justify the appropria- 
tion to himself by speaking of some transaction between 
himself and Edward M. West and A. K. Allison. But it is 
submitted that what occurred between himself and Allison 
and E. M. West has nothing to do with the question. Here 
then is the undenied oath of R. K. West. West never con- 
sented that the check to Allison should go to an alleged in- 
debtedness by him to D. C. Wilson nor does Wilson pre- 
tend that he ever did. A further evidence of the fact that 
he did not consent is the pregnant fact that he did not 
at that time or at any time subsequent, take up the notes 
which Wilson alleges he held against him and produced in 
evidence hy Wilson himself with his own endorsement on them. 
West not only had the right to order the Allison check 



204 SUPREME COURT. 



Wilson & Herr ts. Ha3rward. — Petition for Rehearing. 



to be applied to the draft, secured by the Lunn notes 



but did absolutely so order. It is presumed that his tes 
mony is entitled to more weight on this point than • that 
any other person, particularly Wilson, who, it is shown, 
deeply interested. West's testimony, it is believed, is o 
this point, uncontradicted. 

Add then to the sum due $1156.86, interest to 6th Janu- 
ary, 1842, $19.28, and we have $1176.14, from which de- 
duct the payment of a thousand dollars and it leaves due 
only $176.14, 6th January, 1842. 

The next payment of which we have any evidence is 
that of June 24, 1842, as shown by the account in the record, 
viz : " by nett proceeds of cotton per Kennebeck to Boston 
his proportion" $243.47. I know no reason why this a- 
mount should not be credited on the draft of 16 September, 
1840, at least enough of it to pay the balance due on said 
draft. That balance as we have seen was $176.14 on 6th 
January, 1842. Add interest $6.36 and it makes $182.50 
due on 24th June, 1842, on which day $243.47 were paid, 
which paid the whole balance of principal and interest due 
on said draft of 16 September, 1-840, and left $60.90 over- 
plus. 

It is true there is no direct testimony in the record of the 
specific application of this last payment, to the balance due 
on the draft of $2723.49. The only application as shown 
by the record, is to the joint amount of the two drafts, viz: 
the one for $2723.49, and the one for $2336.26. 

Acccording to this application, one half of the payment 
of $243.47 belongs to the balance due on the draft, viz : 
$182.50 which would leave due only $60. 

But we maintain that the whole of the $243 or so much 




TERM AT TALLAHASSEE, 1855. 206 



Wilson & Herr vs. Hayward. — Petition for Rehearing. 



thereof as was sufficient should be applied to extinguish 
the balance of $182.50, due on tlie draft of $2723 Ad, ac- 
cording to the principle admitted by this court, in the case 
of Smith and Paramore vs. Randall, 1 Florida, 428, and 
cases there cited. In the case of Devane vs. Noble, cited 
by the court, 1 Merivale, 60G, the master of the rolls says : 
The debtor has first the right to apply. If he does not 
then the creditor. If neither apply the payment, the law 
makes the appropriation; and the rule of law, is to ap- 
ply to the most burdensome debt, — (me that carries inter- 
est rather than one that does not. And if the debts are 
equal, then to that ivhich has been first contracted. And if 
there are other parties interested, the justice of the case re- 
quires that the application should be made for the benefit 
of such other parties. So that in whatever light this last 
payment is viewed, the conclusion must be that it extinguish- 
ed the whole of the draft for $2723.49, for which the Lunn 
notes were transferred as collateral security. 

It thus seems most incontravertibly that the claim of 
Wilson and Herr on the Lunn notes ceased before they 
instituted their suit for a foreclosure, and they ought to 
have returned those notes to West according to the agree- 
ment of Wilson in the record. 

Hay\%'ard had no opportunity in the suit of Wilson and 
Herr vs. D. C. Wilson, administrator of Lunn, to show 
these facts, as he was not made a party. Wilson who 
conducted the whole affair for both parties, was interested 
in the whole business, and if na}^ard is not permitted to 
claim that the foreclosure decree is all wrong, in a pro- 
ceeding in which he makes all persons concerned, parties 
then there is no remedy left him, and no means allowed to 



206 SUPEEME COUET. 



Wilson & Herr vs. Uayward. — Petition for Rehearing. 

show that when the foreclosure was obtained, Wilson and 
Herr had not a particle of interest in the mortgage ; for let 
it always be remembered, that the Lunn notes were not 
assigned mit and out in payment of Wilson and Herr, but 
only as collateral security, and by agreement, they were 
to be returned when the draft of $2723.49 was paid. 

We are not left to the deductions I have made from 
the whole evidence to show that nothing was due on the 
draft of $2723.49. West in his evidence says, that that 
draft was fully paid by him. Is this statement of West 
a simple wanton assertion f The facts in the record dis- 
tinctly show that his statement is correct. This statement 
of West goes further, and shows that he intended the 
last payment of $243.47, to be applied to pay oflf the final 
balance due on that draft. West says that the draft was 
paid. This is his testimony, as positive as any declaration 
made by him, and the other separate facts in this record 
prove the same thing, notwithstanding the statement of 
D. C. Wilson, who is deeply interested in this cause. 

Counsel for appellee, begs leave to present another point 
not presented in the argument, viz : That if he is right in 
the position that the foreclosure at law, was not warranted 
by law, even if there was any balance due on the draft, 
then we say that Wilson and Herr having taken posses- 
sion of the mortgaged property, have been paid more, than 
was due them, and more than the value of the improve- 
ments by the receipts of rents and hires. 

Let us next enquire whether Wilson and Herr, had real- 
ly any interest in the Lunn notes.' The draft for $2723.49, 
was in favor of D. C. Wilson individually. The accept- 
ance of said draft by West made it a debt to D. C. Wilson, 






TERM AT TALLAHASSEE, 1855. 207 



Wilson & Herr vs. Hayward. — Opinion on Petition. 

L to D. C. Wilson did West assign the Lunn notes as 
aterals. This being so, D. C. Wilson, and not Wilson 
L Herr, could foreclose the mortgage. But D. C. Wil- 

could not sue himself, as adm'r of Lunn, and he pro- 
ed a lawyer to bring suit against himself, in favor of 
son and Herr. Here is the anomaly of a personal hold- 

a debt against fiimself, procuring a suit to be brought 
;lie name of a third person, without making anybody par- 
, or giving them an opportimity to show that really 
re was nothing due. 
:f I have succeeded in showing that the draft for which 

Lunn notes were collateral security, had been fully 
3 before the foreclosure suit, then I maintain that Rich- 

Hayward has in this proceeding the right to have the 

ree of foreclosure, aforesaid set aside and a decree in 

favor to foreclose the mortgage. Any other result un- 

such a state of things, would be grossly unjust, and 
lid be a premium to men to act wrongfully. 
Tor these reasons, counsel fyr appellee, respectfully 
ys the court for a rehearing in this case. 



Che reheariiig being granted, and after argument, 
LTZELL, C. J., delivered the following opinion of the 
rt on the matters presented in the petition : 

OriNION ON PETITION FOR REHEARING. 

The subject of pajrment of the mortgage note, held by 
Ison and Herr, on which judgment of foreclosure was 
I, was not presented to us in argument, but considered 
abandoned and so treated in the opinion delivered by 
court. The counsel for complainant, has explained 
3 omission by saying that a reference was had to the 



208 SUPREME COURT. 




Wilson & Herr tb. Hayward. — Opinion on Petition. 

master in the court below, to ascertain this fact, and un- 
der the impression that the case would go back and' this 
subject be thereby ascertained, he did not think proper to 
discuss it here. Inasmuch as the unexpected turn which 
the case has taken, cut him off from this resource, and ir»' 
asmuch as the point of payment, was in his consideration- ^ 
vital to his client's case, the court on his application grar^^ 
ted a rehearing, which has been had and we now pre 
ceed after due deliberation, to give the conclusion to whicl 
we have arrived, premising that nothing has been wanting 
to present the case which the zeal and industry of counse. 
could effect. 

No doubt if payment was made of these notes, before^^ 
judgment, the right of complainant to relief is clear and ^ 
unquestionable. He alleges payment in general terms, - 
without specifying particulars, or items, or sayings when, 
or how, or by whom payment was made. He calls upon 
defendants to state whether any and what payments were 
made by said West, on account of said debt and how much 
was due thereon at the time of foreclosure, and tliat a full 
statement be made and exhibited, showing the amount of 
said debt and all payments made thereon, and securities 
realized and its true condition.'' To this, defendants an- 
swer that "no payments were made under said debt, and - 
the whole amount was due at the date of said foreclosure,-^ 
and they exhibited a full and perfect statement taken from^" 
the books of the firm of Wilson and Herr, showing the bill^ 
of goods at various times, sold to said West by said firm-.* 
and the payment made thereon, to which they refer as ^ 
true and accurate exhibit of their business and dealin/ 
with said West." 



TERM AT TALLAHASSEE. 1855. 209 



Wilson & Herr ts. Hajward. — Opinion on Petition. 

This exhibit presents three different accounts, the first 
for $2037.89, dated 13th Xovember, 1839. The second for 
$2723.49, dated the 16th September, 1840, secured by threq 
notes of Lunn of $1000 each. The third for $2336.26, dated 
June the 25th, 1841, making an aggregate of $7088.14. 
To the account of November, 1839, are attached two 
credits, one of $1366, dated 27 August, 1840, and another 
of $661.43, of the date of 30 January, 1841,— to the two 
accounts of 1840 and 1841, is attached a credit of 
$243. 

Complaint claims that the credits of $661, $1366 and 
$243, should be applied fx> the second acct of 1840, secured 
by the mortgage, and that there are other payments also 
applicable to it, to wit: $1652, paid by Thompson and 
Hagner; $1000 paid in bills of the Life Insurance and Uni- 
on Bank, and $1000 in a draft by E. M. West and A. K. 
Allison for cotton. 

The credits of $1366 and $661, it is said should be ap- 
plied to the draft of $2723, or in other words be applied to 
the mortgage notes. 

The reliance for this position is upon the alleged admis- 
sion of defendants in their answer, "that the draft of 
$2723.49, was the amount in which West stood indebted 
for goods, furnished previous to that time.*' The inference 
drawn from this is that West owed at this time, 16 Sep- 
tember, 1840, the sum of $2723.49, and nothing more. — 
We cannot consent to such construction. If the sentence 
stood alone and by itself unconnected with others, it 
might possibly admit this construction. In connection, 
however, with and in express reference to this very sub- 
ject, the defendants give a copy of an accoimt of previous 
15 



■ t .-.ft- .-.■m.JI 



210 SUPEEME COURT. 



Wilson & Herr vs. Hayward. — Opinion on Petition. 

date, 13th November, 1839, in which there is an indebted- 
ness of $2027.89, closed by these very payments. The ac- 
counts and these very credits then constitute as much a 
part of the answer as the expressions cited, and to con- 
strue them as contended for, would be to exclude a materi- 
al and important part of their statement, and be doing the 
utmost violence to the clear and manifest intent of defen- 
dants, as declared in their answers. R. K. West had no 
such opinion. He is particularly questioned as to these 
items and this account, and says, "he does not know 
whether the charges are correct or not. The credits he 
knows are not. Tlie payments therein credited, are not the 
only payments ever made by me, on account of my indebted- 
ness to Wilson and Herr." 

Here the objection is not to the credits made, but to the 
want of some which he thinks ought to have been made. 
It is not a little singular that if this account of 1839, 
showing indebtedness previous to the draft is excluded, 
tliere is no other evidence in the record as to their pay- 
ment. We arc of opinion then that there is no ground for 
contending that these items should be applied differently 
to what they have been by defendants. 

The next sum claimed, is a payment by Thompson and 
Hagner to D. C. Wilson, made on the 7th and 10th days of 
August, 1840. The credit of $1366, bears date of the 20th 
August, predicated on a part note of the Union Bank, da- 
t^d 10 of August, 1840, so that the inference seems a fair 
one, that these relate to the same transaction. There is 
no other money sliown to have been received about that 
time. Had tlie whole sum of $1652 been credited, little 
doubt could remain. We, however, think it the same 



TEBM AT TALLAHASSEE, 1855. 211 



Wilson & Herr vs, Hayward. — Opinion on Petition. 

^action, excepting that the entire sum received by 
on was not remitted. The sum of $286 not forward- 
) Wilson and Herr, nor credited in any other account, 
then form a just credit upon the acct. of $2723.49, at 
time the oldest account unsettled. 

le next claim is a sum of $1000, paid 26 January, 18- 
hrough cotton of E. M. West, and a draft of A. K. Al- 
. There is no question as to this sum of money being 
ved by D. C. Wilson, the only question is whether it 
for his own individual account, or for the account of 
on and Heir. For anything appearing in the record, 
latter seems never to have had an)rthing to do with 
transaction, nor to have been informed of it even. — 
on claims it as an individual transaction of his own, 
files a statement of the manner of its adjustment, 
ing the draft of Allison and the notes and account of 
irm with which it was paid. In a transaction of this 
, where a party was indebted to an agent in his in- 
lual right, jointly with a debt to another concern, 
ence would seem to require that the debtor would 
iy distinctly the debt to which payment should be 
3, that he should take a receipt and close the transac- 
by taking up the note or debt paid. Nothing of the 

takes place here. West does not even say that he 
ited the application of his pajrment to the Lunn notes, 
} the Wilson and Herr debt. His statement in his dep- 
on is "the notes given as collateral security have 

paid, $1000 in cash, and in the draft of Allison for 
>0 more." Again he says : "I did pay it, I paid it to 
uon, (the draft of $2723.49,) I gave Wilson an order on 
L. Thompson for $ , and the balance I paid in cur- 

money of the country.^^ 



312 SUPEEME COURT. 

WilsoD & Herr vs. Hayward. — Opinion on Petition. 

Now, if there were nothing else in the case but thi 
statement of West, we should feel bound to disregard it i 
opposition to the denial of the answer. It is true this do( 
not deny this payment in so many words, but makes a d< 
nial as large as the allegation of the bill. The bill cliarg< 
payment of the mortgage notes. The answer denies it.- 
But tliere is other evidence. E. M. West examined I 
complainant, in his deposition says: "in the early part < 
1842, I sold to D. C. Wilson cotton to the amount of $150' 
I drew an order on D. C. Wilson in favor of A. K. Alliso] 
for the sum of $1000, with the understanding that Alliso] 
was to transfer said draft back to said Wilson, for and c 
account of R. K. West." Questioned as to the applicj 
tion of the payment he says: "The draft was to be a] 
plied to the general account of R. K. West with said Wilson 
or such was my impression." 

Now, E. M. West seems to have been the chief and a 
tive agent in the transaction, and his evidence as to tl 
application of the draft to a particular subject, is more 1 
be relied upon and greatly preferred to a general alleg 
tion of another witness, that the note was paid. We ha^ 
remarked upon the importance of receipts being taken i 
a case of this kind, to identify the debt which the debt< 
designed paying, for obviously in the present case if We 
paid Wilson $1000, without an agreement or direction i 
apply it to the debt of Wilson and Herr, Wilson woul 
have a right to apply it to a debt of his own; (as far i 
this case is concerned, we say he had a right to do it, f( 
they do not claim the payment to themselves,) hence the n< 
cessity of a receipt. R. K. West says, speaking of this pa^^ 
ment, "he has no receipts in his possession." Yet, E. \ 



TERM AT TALLAHASSEE, 1865. 213 

Wilson & Herr vs. Hasrward. — Opinion on Petition. 

West in his deposition says: "I have seen receipts of D. 
C. Wilson to and in the possession of R. K. West. I have 
seen them within the last twelve months. I have no re- 
collection of the amount of anv of them. I don't know 
where they are at this time. They were receipts for so 
much money without specifying on what account." 

We find too in the record a receipt for $1000 in the Life 
In. & Trust Co. and ITnion Bank Bills, the suhject of an- 
other claim, specially applicable to this draft. Under 
thcFC facts we are fully justified in holding tliat this sum 
was paid, not to Wilson and Ilerr as claimed, but to the 
private and individual account of David C. Wilson, and 
that E. K. West had no receipt for it as a payment on the 
draft of $2723.49. 

The claim of $1000 paid October, 1841, is sustained by 
the receipt of David C. Wilson, applying it to this draft 
and is not contested, although we are constrained to say 
the evidence is ver}' strong that it was designed to be ap- 
plied to the account of June 25, 1841. Daffin and E. M. 
West, in their depositions, both speak this way, and this 
was the decided impression of D. C. Wilson. 

The item of $243 is put to both the accounts of 1840 and 
1841. It will be allowed to the oldest account, the one 
secured by the mortgage notes. 

The payments allowed on the draft of $2723.49, are 
$1000, October 23, 1841; $218 January 4, 1842, and 
$243 June, 1842. Giving credit for these with interest, 
and deducting this amount from the sum due on the draft 
with interest to the date of the judgment, and there re- 
mains the sum of sixteen hundred and seventy-one dollars 
due, which defendants Wilson and Herr, have the right 



m SUPREME COURT. 

Carter ts. Bennett, et. al. — Statement of Case. 

in equity to have paid before the interests of Hayward 
can intervene, according to the decision and opinion we 
have made. We are then of opinion that the complainant 
has not made out or sustained his position that the debt 
due and secured by the mortgage was paid and satisfied 
before the judgment of foreclosure was rendered. 

The decree made herein on a former day of the term, 
will then stand and remain as the final decree of thlB 
court, and the petition of complainant will be dismissed. 



Fabish Carter, Appellant, vs. Archibald T. Bennett, 
Egbert May, W. G. Davis and others. Appellees. 

1. Where all the equities of the bill are denied by the answer, it is not of coarse 
to dissolve the injunction. The granting and continuing of injunctions rest 
in the discretion of the court, to be governed by the nature and circum- 
stances of the case. 

2. A Judgment recovered in the State of Georgia, as to matters of evidence, is 
entitled to full faith and credit in this State, but the same faith and credit 
are not due to subsequent acts under it, such as issuing and returning of ex- 
ecution thereon, and until said judgment has been prosecuted in a court 
of this State, judgment recovered and execution issued and pursued to every 
available extent, the plaintiff is but a creditor at large. 

3. The trusts intended by the Courts of Equity, not to be reached or affected 



TEKM AT TALLAHASSEE, 1855. 215 



Carter vs. Bennett, et. al. — Statement of Case. 

Mute of limitations, are those technical and continuing tnx8ts,whlch 
all cognisable at law, but fall within the proper, peculiar and exclu- 
Adlctlon of the Court of Equity. 

swer of a defendant is only evidence as to facts, to which other testi- 
md be receiyed,and it will not be admitted to show that the Intent and 
I of the parties to a written agreement was contrary to what appears 
face of It 

I should equitably construe lawful stipulations. 

m purchasing mortgaged or encumbered slaves at a very reduced price 
! to all the lUtbUitica that are against them in the way of debt, eith- 
7te, judgment or mortgage, a« the property of the mortgagor, the 
or only warranting the eame a» against himself and the heirs'* sjiA the 
Suction in the price being unexplained must be considered to have 
Ml only the equity of redemption therein. And as between the parties, 
f Ekiuity will consider the justice, equity and understanding of the 
i to be, that any encumbrance in the way of debt, then existing a- 
lid slaves,, either by note, judgment or mortgage, as the property 
rendor, were to be met and paid by the purchaser, to any amount not 
g the value of the slaves, at the time said liability shall be enforced ; 
I a purchase constitutes a constructive trust in rem in favor of the 
' said encumbrances or any of them, such as Courts of Chancery only 
orce. 

is nothing in the history of litigation between the parties as pre- 
i the record, that should estopp the complainant from insisting upon 

St. 

}s where it is doubtful whether courts of law can give relief,Courts of 
Y will entertain jurisdiction. 

e promissory notes are offered in evidence and ruled out by the court, 
Dffered again, and where the mortgage given to secure said notes Is 
red in evidence, but in consequence of said notes not being in evi- 
le said mortgage and assignment thereof, were not and could not 
in fully considered and determined by the Jury, and there were 



216 SUPREME COUBT. 



Carter vs. Bdnnett, et. al. — Statement of Case. 

other Issues before the Jury, a judgment rendered under such dran* 
stances should not be considered as final and conclusive adjudication ia n> 
spect to said mortgage and the ownership of said mortgage. 

10. A mortgage executed in Georgia on slaves and real estate then In ChL, nd 
said slaves auhaequently removed to Fla., and the equity of redemption there- 
in sold at a reduced value.under an agreement that they are purchased "Ml- 
/ect to all the liabilities against them, in the way of debt either by sot>> 
judgment, or mortgage in the State of Georgia, as the property of tte 
vendor or mortgagor, the vendor only ^Darranting the same agaimit h kuM ^ 
and hie heirs/' and afterward removed from the State, some by the party 
complainant, and some by the defendant, and there being equities tangible^ 
such as the Court of Chancery may seize hold of in rem and force the n* 
turn of said slaves within the jurisdiction of said court, or decree a peisoih 
al liability, may be foreclosed in a Court of Chancery Having jorlsdietiM 
in this State, on the slaves, as if they were in Florida within the JorlsdietiM 
of the court, without embracing the real estate or any other property h 
Georgia, Included in said mortgage, and forming no pari of said pnrelme; 
but any transaction or acts of the mortgagee or holder of the mortgifii h 
Georgia, which in equity and good conscience, under all the draunstuiM 
of the case, should be a set-off, or reduction, or credit on the IndebtedBM 
of the mortgage, will enure to the purchaser of the equity of redemiitlos. 

11. Bills for a new trial not countenanced,and never should be entertained ex* 
cept in a very clear case of fraud or injustice, or upon newly discovered ert 
dence, which could not possibly have been produced at the first triaL 

12. The statute regulating "commissions for collecting*' between attoneyi 
and clients, relates only to per centage for collecting. For oilier serviceitt 
reasonable and adequate remuneration may be allowed, to be ascertained by 
proof and either and both of them constitute in this state, what is known and 
spoken of in this country and In England as "Fees" and "costs," betweea 
attorney and client,and constitutes a Hen^which should be enforced under the 
same rules of law as in England, where those fees and coats are tanUi 
so far as consistent with oar practice. 






TEEM AT TALLAHASSEE, 1855. 217 



Carter vs. Bennett, et al. — Statement of Case. 

13. The right of set-off prevails in general ca8e8,80 as to interfere with the so- 
licitor's lien upon the debt recovered, but where other claims arising out of 
different transactions and which could not have been a legal or equitable set- 
off in that suit exist between the parties, the court will not divest the lien of 
the attorney or solicitor, which has already attached on the amount recov- 

I 

ered for the costs of that particular litigation. 

Appeal from the interlocutory order of tlie Circuit Court 
for Leon county sitting in Chancery. 

Parish Carter filed his bill in the court below, alleging 
that on the 13th day of October, 1839, one Warren Jordan, 
of the State of Georgia, executed a deed of mortgage, cov- 
ering certain lands in said State, and seventy-nine slaves, 
to the Georgia Railroad and Banking Company, to secure 
to said company the payment of certain notes given by 
said Jordan. That on the 31st dav of Mav, 1842, the said 
Georgia Railroad and Banking Company, for a valuable 
consideration, assigned the said mortgage and the notes 
for which it was a security, to him Farish Carter. That 
he, said Carter, had recovered two several judgments a- 
gainst said Warren Jordan, in Georgia, one for $5000, and 
the other for $847.66, that shortly after the maturity of the 
notes secured by said mortgage, the said Carter being a- 
bout to enforce his execution issued on said judgments, 
against said Warren Jordan, he, said Jordan, determined 
to remove the slaves embraced in said mortgage to the 
State of Texas, for the purpose of avoiding the payment of 
his debts, &c., that for this purpose said Jordan employed 
one Jeptha Harris, to take charge of said slaves and remove 
them to Texas, and he Harris, did in the night time receive 
said slaves and proceeded with them to Apalachicola in Fla. 
That soon after the arrival of said Harris at Apalacliicola 
with said slaves, and before they could be embarked for 



218 SXTPBEME COUBT. 



Carter vs. Bennett, et. al. — Statement of Case. 

Texas, one John Watson of Columbus, Georgia, peroeiTing 
suspicious circumstances, instituted proceedings at random, 
in favor of said Georgia Railroad and Banking Company, 
and procured an attachment under which one Nathan Bi- 
ker, Deputy Marshal, seized the said slaves, (except one 
who had been given for the transportation of the rest to 
Apalachicola.) 

That said Harris being a stranger in Apalachicola, and 
greatly embarrassed by the unexpected seizure of said 
slaves, did by the ad\ice of defendant Bennett, take tbe 
advice of counsel. That said Bennett was present at ill 
consultations between said Harris and his counsel, and ob- 
tained the confidence of said Harris and a knowledge oi 
all the circumstances connected with the removal of sai^ 
slaves, and the object and purpose of such removal, aix^ 
that said Harris was advised that his letter of attom^J 
from said Warren Jordan, was insuflRcient to enable him 'fc^ 
replevy the slaves or successfully make defence against sai-^ 
false attachment, and was also- further advised to retur"" ^ 
to Georgia and obtain more ample authority. That saS^^ 
Bennett returned with said Harris to the plantation c:::^' 
Warren Jordan, in Georffia, and there foimd said Jordan ai^^^ 
one lieuben Thornton, his father-in-law, to whom sa^^" 

Harris and paid Bennett detailed the facts in respect to tl ^® 

seizure of the slaves. That Bennett manifested great v^^^' 
terest in tlie execution of Jordan's purpose, offering his a ^^" 
in replevying the property, and that under his advice, saff^ ^ 
Jordan executed a bill of sale of the said slaves to saff^" 
Reuben Thornton, in the presence of said Bennett and sa^ ^ 
Harris as subscribing witness; but without any consi 
eration whatever; but with the sole intent well known 



•ri 



'Hi:'- 



^.1 



TEEM AT TALLAHASSEE, 1855. 219 

Carter ts. Bennett, et. al. — Statement of Case. 

said Bennett, that said Thornton with the aid of said Bennett, 
and his friends might replevy the slaves for the benefit of 
Jordan, &c. That therefore said Thornton together with said 
Bennett and said Harris, returned to Apalachicola ; but that 
the said Bennett instead of rendering the promised aid, threw 
every obstacle in the way to prevent their success in re- 
leasing the slaves, and influenced the Deputy Marshal to 
exact excessive and unusual bonds, which he well 
knew said Thornton could not give, and that said Bennett, 
when said Thornton despaired of success in regaining pos- 
session of said slaves, instituted a negotiation for the pur- 
chase of the whole of said slaves in the custody of the 
Deputy Marshal. That said Thornton failing to succeed 
in his and said Jordan's plans, and fearing the creditors of 
Jordan would soon pursue the property, sold all the slaves 
in custody of the Deputy Marshal to said Bennett and 
Kobert J. Floyd, whom Bennett had associated with him 
in the purchase, for the sum of about $14,000, which was 
not one half of the value of said slaves, of which amount 
not more than $600.00 was paid at the time, and 
$2,000.00 since. That immediately after the sale by 
Thornton, the said Bennett and Floyd, obtained without 
difficulty the possession of all said slaves, by giving bond 
signed by themselves, and one security of nominal respon- 
sibility, and that a large number of said slaves were im- 
mediately removed from Apalachicola and sent out of 
Florida for the purpose of sale beyond the reach of the 
creditors of Jordan. 

Carter further alleged in his bill that at the time of the 
execution of the bill of sale from Thornton to Bennett and 
Floyd, the latter delivered to Thornton an instrument un- 



220 SUPREME COURT. 



Carter ys. Bennett, et. al. — Statement of Caae. 

der their hands and seals^ certifying that the said slaves 
were sold subject to all liabilities against them in the way 
of debt, either by note, judgment or mortgage, in the 
State of Georgia, either as the property of Warren Jordan 
or of Reuben Thornton, &c., and certifying also that if any 
of the property should be lost by suit in consequence of 
any claims as aforesaid, such loss should be no set-off or 
plea against the payment of a note given by Bennett and 
Floyd in part payment, &c. 

The bill also alleged that shortly after the sale from 
Thornton to Bennett and Floyd, the Georgia Railroad and 
Banking Company, then holders of said mortgage and 
mortgage debt, instituted a proceeding in Franklin Superior 
Court for the foreclosure of said mortgage, making said 
Warren Jordan the only defendant, and sued out an at- 
tachment against said mortgage slaves for $5000.00, 
which was not one tliird the amount due on said mortgage 
notes, and that under said writ a part of said slaves were 
found in the possession of defendant Bennett, and one 
James Farrier, and a levy thereon was endorsed on said 
attacliment. That after the assignment of the mortgage 
and mortgage debt to complainant, and on the 10 Decem- 
ber, 1842, being then in Apalachicola and discovering that 
the attachment aforesaid was limited to the sum of 
$5000.00, filed an amended petition in said proceedings, 
setting forth the assignment aforesaid, and that a much 
larger sum was due on the mortgage than the sum sworn 
to, &c., that a new attachment was issued and levied upon 
thirty of said slaves, in possession of said Bennett and two of 
which were in the possession of Roberts, Allen & Co. That in 
the Superior Court of Florida then in session, complain- 



TERM AT TALLAHASSEE, 1855. 221 

Carter vs. Bennett, et. al. — Statement of Case. 

^Xt Carter, by the cousent of Reuben Thornton, who held 
letter of attorney from Warren Jordan, deemed suflScient 
Ot that purpose; obtained a judgment and decree of fore- 
Xofiiire for $16,783.00. That an execution on said judg- 
cxent was immediately awarded and a levy was made on 
lie slaves attached; that said slaves so levied on were sold 
rxi the 31 day of December, 1842, and on the 9 day of Janu- 
LTy, 1843, and were bid in by R. H. Long for the benefit of 
complainant. 

The bill further alleged that previous to said sale, and 
^n the 15 day of December, 1842, said Bennett instituted 
Eui action of Trover against complainant Carter, in Frank- 
lin Superior Court, for the recovery of said slaves, sold as 
aforesaid, and that Roberts, Allen & Company, instituted a 
like action for the recovery of the two slaves levied on 
while in their possession. That in December, 1848, the 
said action of Trover instituted by Bennett, came on for trial 
before the Circuit Court for Franklin county, and that at 
said trial said Bennett claimed title under his actual pos- 
session at the time of levy, and through the bill of sale 
from Thornton, and that complainant Carter defended un- 
der the judgment of foreclosure aforesaid and the sale 
thereunder, but to his surprise said judgment and sale 
did not avail him as a legal defence, by reason of the fact 
that Bennett and others in possession of said slaves, were 
net made parties defendants in said proceeding^, and by 
reason of a want of sufficient notice to Jordan, and by rea- 
son of the want of sufficient authority in Reuben Thorn- 
ton to give the various consents he attempted to give in 
behalf of Jordan. That notwithstanding sixteen of said 
slaves had been retaken by Bennett, as hereinafter stated, 



222 SUPREME COURT. 

Carter vs. Bennett, et. al. — Statement of Case. 

a verdict was rendered in favor of Bennett, and judge- 
ment given thereon for $19,999.66. 

That an application for a new trial was made on the 
ground among others, that tlie verdict and damages were 
against the evidence, but that said application was refused 
among other things, because tlie said court deemed it had 
no authority in law to grant a new trial, on the ground 
that the verdict was against evidence, and that on appeal 
the Supreme Court decided it had no power to correct the 
errors of the Circuit Judge in refusing to grant a new trial. 
That in like manner and at the same term of the Court 
the said Roberts, Allen & Co., recovered a judgment in the 
action instituted by them for $1075.00. That since the 
rendition of this judgment, complainant has for the first 
time been informed, that the suit in favor of Roberts, Al- 
len & Co., was prosecuted by Bennett for his own use, and 
that said recovery is in fact the recovery of Bennett for 
slaves, wliich he had long before the trial retaken by force 
and disposed of. 

The bill further alleges, that pending the said suits at 
law, the slaves purchased by complainant, were removed 
to the plantation of R. H. Long, in Jackson County, Flori- 
da, to abide the result of said proceedings, and that on or a- 
bout the 17th day of April, 1843, the said Bennett by force 
did enter upon the premises of said Long, and seized and 
carried away sixteen of said slaves, and also the slaves 
sued for in the action in favor of Roberts, Allen & Co., which 
slaves said Bennett disposed of for his own use. That sub- 
sequently complainant Carter instituted an action of Tro- 
ver against said Bennett, for the conversion of said sixteen 
slaves in Georgia, where process was served on said Ben- 
nett, and in said suit he, complainant, recovered judg- 



TERM AT TALLAHASSEE, 1855. 223 

Carter vs. Bennett, et al. — Statement of Case. 

DQent for $3850.00, principal, and $1310.38-100 for dama- 
ges and hires. That no part of said judgment being 
paid, complainant instituted an action on said judgment 
in the United States District Court for the Northern Dis- 
trict of Florida, and that afterwards on the 17 day of Feb- 
TTiary, 1852, complainant recovered judgment therein a- 
gainst said Bennett for $7261.59-100 and that execution hath 
l)een issued thereon, returned no property found. 

The bill further alleges that by reason of the irregulari- 
ties in the pleadings and proceedings in the suit for the 
foreclosure of the mortgage as aforesaid, which did not 
reach or effect the merits of said mortgage, or the mortgage 
debt, or the equities of complainant; he could not defend 
himself in a court of law by setting up his equities as as- 
signee of the mortgage debt as his equities as judgment 
creditors of Warren Jordan, and that his said claims were 
not considered or allowed in said proceedings at law. 

The bill further alleges that both Reuben Thornton and 
Warren Jordan, died insolvent in the State of Tennessee, 
in the year 1843, and at the removal of said slaves from 
Georgia, neither of them had any means or property ac- 
cessible to complainant, which could be applied in pay- 
ment of said mortgage debt or of said judgment, except 
the property otlier than the slaves embraced in the mort- 
gage and that all said property has been exhausted either 
by the application of the proceeds to the said deed of 
mortgage, or to older and superior liens, except about 
920 acres of land in Georgia, which as yet remains 
unsold, and for which two dollars per acre cannot be had. 
And further, that he is unable to obtain satisfaction of his 
judgment aforesaid from said Bennett, that said Bennett 



224 SUPREME COURT. 



Carter vs. Bennett, et. al. — Statement of Case. 

has for a long time been embarrassed, and that shortly 
after the recovery against him, he removed to the State of 
Louisiana. That the slaves aforesaid cannot be found, 
and that they liavc been removed and scattered beyond the 
reach of complainant's claims. 

The bill further alleges that defendants Semmes, Baltzell 
and Davis, claim to be interested in said recoveries at 
law in favor of Bennett and of Roberts, Allen & Co., and 
that they severally have a lien as attorneys upon the pro- 
ceeds of said judgment, paramount to all the equities of 
complainant, for compensation, and fees for alleged ser- 
vices rendered by them as attorneys for the plaintiff in said 
judgments, and have noticed complainant of the sums 
claimed by them geverally, which in the aggregate ex- 
ceed tlie sum of ten thousand dollars, all which complain- 
ant charges to be against equity, &c. 

The bill also alleges that the judgment in favor of 
Bennett, has been assigned by him to Robert May, but 
cliarges that such assignment is fictitious and colorable, 
and intended to defeat the equities of complainant, &c. 

The prayer of the bill for injunction and relief is set out 
in the opening of the opinion of the court. 

Among tlie other exhibits filed with the said bill of com- 
plainant is the following, viz: 

Territory of Florida, 
Franklin County. 

Whereas, Reuben Thornton of the county of Hall, in the 
State of Georgia, has this day sold R. J. Floyd, and A. T. 
Bennett the following negroes which are now in the posses- 
sion of the Marshal under an attachment sued out against 
one J. L. Hodges, to wit: (naming them — seventy-eight in 



TEKM AT TALLAHASSEE, 1855. 225 



Carter vs. Bennett, et. al. — Statement of Case. 

number, which said negroes are sold by the said Thornton 
to us and said R. J. Floyd and A. T. Bennett, subject to all 
the liabilities that are against them in the way of debts, 
either by note, judgment or mortgage in the State of 
Georgia, either as the property of Warren Jordan or the 
said Reuben Thornton, the said Reuben Thornton only 
warranting the same against himself and his heirs. This 
is therefore given by us to show that if any of said proper- 
ty should be lost by suit in consequence of any claims as 
aforesaid, that it is to be no off-set or plea against the pay- 
ment of the notes of seven thousand dollars, bearing even 
date with these presents, given by said Bennett and Floyd 
in payment for said negroes, as witness our hands and seals 
this 16th March, 1842. 

R. J. FLOYD, [seal.] 
A. T. BENNETT [seal.] 
Signed, sealed and delivered in presence 
J. C. Harris, 
J. M. Tengue, 

The complainant also annexed to his bill copy of a plea 
sworn to by A. T. Bennett, on the 24th July, 1844, in a 
certain case instituted by Charles T. Thornton, against him 
on the note for $7000.00, given by him and Floyd to Reu- 
ben Thornton, in which he alleged that the note aforesaid 
*Vas made and executed in consideration and payment 
of certain negro slaves, sold to defendant on the 16th 
day of March, 1842, "that said slaves being the property of 
one Warren Jordan, in the State of Georgia, were fraudent- 
ly, clandestinely, covinously, collusively, wickedly, illegal- 
ly and improperly against the laws of said State run off 
removed and carried away from said State by said Jordan 

16 



226 SUPREME COURT. 



Carter ts. Bennett, et. al. — Statement of Case. 

and Reuben Thornton, said removal being made, executed,, 
contrived and devised of fraud, covin, collusion and guile, 
to convey them from said State, out of and beyond the 
United States to Texas, to the end, purpose and intent to 
convert them to their own use and profit and to delay, hinder 
and defraud the Georgia Railroad and Banking Company 
and others to whom said slaves had been mortgaged and 
their creditors in said State of Georgia, contrary to the 
laws of said State; that the sale to said defendant, (Ben- 
nett,) by the said Thornton and the giving and taking of 
said note of $7000.00, and its assignment to plaintiJBE . was 
in pursuance and consummation of the same wicked, fraud- 
ident, corrupt, illegal, covinious and improper design con- 
trivance and purpose," &c. 

On motion in behalf of complainant Parish Carter, and 
after argument of the counsel for tlie parties, an injunc- 
tion was awarded enjoining and restraining all proceed- 
ings upon the judgments and executions mentioned in the 
bill of complainant, in favor of A. T. Bennett and Roberts, 
Allen & Co. 

The defendant, A. T. Bennett, alleges in his answer that 
the court has no jurisdiction over so much of the matter 
of said bill as relates to the judgment asserted by com- 
plainant, to be held by him against ^Ya^^en Jordan in the 
State of Georgia, because he says that said complainant 
has never obtained judgment in this State upon said 
judgment, and had execution issued thereon and a return of 
no property. 

He further alleges ^that the facts in said complainant's bill 
set forth as to the nature and character of said conveyance 
of said slaves by said Jordan to said Reuben Thornton, and 






TERM AT TALLAHASSEE, 1855. 227 

Carter vs. Bennett, et. al. — Statement of Case. 

\)y said Thornton to this defendant, (Bennett,) were fully 
Icnown to said complainant, (Carter) in the year 1842, 
and more than five years before the bringing of this suit, — 
and that the rendition of said judgment, as is by said com- 
plainant asserted occurred more than five years before the 
bringing of this suit, to wit: in the year 1842, and that the 
possession of said negro slaves by this defendant, (Ben- 
nett,) and his acts of ownership over the same, and said 
suit at law against said complainant for the seizure of 
said slaves, began more than five years before the bringing 
of this suit, to wit: in the year 1842, and have continued 
without any cessation or interruption up to this time, and 
that therefore the right by said complainant in his said 
bill asserted as a judgment creditor of said Jordan, against 
defendant, (Bennett,) as the purchaser and owner of said 
negro slaves, or a judgment recovered for the conversion 
thereof, began and existed if at all, more than five years 
before the bringing of this suit, and that the failure of the 
complainant to institute suit thereon has not arisen from 
any act of this defendant, nor been prevented by any legal 
disability of said complainant, but that such delay and 
lapse of time has arisen from the laches and fault of said 
complainant, all of which this defendant, (Bennett,) insists 
is a bar to the discovery and relief so prayed. 

Defendant further in his answer denies he became liable 
as the trustee for said Carter as charged in said bill, and if 
such was the fact, because he says therein, that so far 
back as the year 1842, he asserted adverse title and pos- 
session to said negroes so purchased by him against the 
said complainant, of all which said complainant had no- 
tice at the time aforesaid, and has maintained the same up 



228 SUPREME COURT. 

Carter vs. Bennett, et. al. — Statement of Case. 

to the present time, that by reason of said fact and said lapse 
of time, that said complainant is and shoidd be barred 
from any and all relief sought for by said bill by reason of 
said alleged trust. 

Bennett also in his answer says that to so much of said 
bill as seeks relief against the suits now pending in Frank- 
lin Circuit Court, in favor of this defendant against said 
complainant, said Court of Equity had no jurisdiction over 
said suits by reason of the fact, that if the matters al- 
leged in said bill be true, it is competent for said complain- 
ant to plead to said suits a former recoveiy, and that said 
complainant has a full and complete remedy at law to said 
suits. 

He also says that all and singular, the matters in rela- 
tion to the claim by said Carter in his said bill set forth in 
respect to any mortgage of said slaves, sued for in said ac- 
tion of Trover, and as to the ownership by said Carter of the 
debt in said mortgage provided to be paid, were in said ac- 
tion of Trover fully considered and determined, and this de- 
fendant (Bennett) relies on the said judgment rendered in 
said action as a conclusive and final adjudication of said 
matters, and craves the benefit hereof as a final settlement 
thereof, and insists upon the same as a complete answer 
to so much of complainant's bill as seeks from said defen- 
dant any discovery in relation to said mortgage, or the 
ownership of said mortgage debt by said Carter, and in 
bar of the relief in respect to said asserted mortgage and 
mortgage debt, which said Carter asks in his said bill. 

He also says that the said finding of said jury, and said 
judgment of said court in said action of Trover should 
be deemed and held to be fin-al and conclusive upon said 



TEEM AT TALLAHASSEE, 1855. 229 



Carter vs. Bennett, et. al. — Statement of Case. 



questions, relating to any mortgage of said slaves, because 
Buch matter was a proper subject matter of defence, capa- 
l)le of being presented by said Carter on the trial of said 
action and capable of being considered by said jury or 
court in mitigation of damages, and that even if it was 
true that said matters were not presented to said jury by 
said Carter, and by them were not considered, yet that such 
failure, if it had occurred, was the fault of said Carter, and 
that it is contrary to equity and grossly vexatious on the 
part of said Carter to seek to renew the litigation in re- 
spect to said alleged mortgage, by said Carter now again 
in his said bill set up, after the same matters have been fully 
heard, and after said Carter attempted to prove said mat- 
ters on the trial of said action of Trover, and that it is 
contrary to equity and the rules of equity proceedings 
and beyond the power and jurisdiction of said court of 
equity to re-examine and decide in this proceeding the 
said matters so before fairly tried and decided in said suit 
at law, or in any wise to re-investigate the matters of fact 
which might and should have been litigated in said action 
at law. 

He also says that if the allegations in said Carter's bill be 
trpe, that said facts as to said mortgage and tlie rights of 
said Carter in respect thereof, were not fully tried and de- 
cided in said action of Trover, yet, this defendant (Ben- 
nett) insists that the conduct of said Carter in keeping 
back his asserted equitable claim, and obstinately litigating 
with defendant in a court of law, at a ruinous cost to de- 
fendant, whilst as said Carter now asserts, said court had 
no jurisdiction to administer complete relief, does not enti- 
tle the said complainant to the aid of this court; but on 



;J30 SUPREME COURT. 



Carter vs. Bennett, et. al. — Statement of Case. 

the contrary imperiously requires, that by refusal to grant 
this relief asked, a just rebuke should be administered to 
conduct so litigious and oppressive in its character. 

Bennett in his said answer also denies the statements in 
said bill, as to the ground of the refusal of the judge who 
tried said suit in Trover between said Bennett and Car- 
ter, to grant a new trial therein. 

He also denies the allegations as to the character of the 
verdict of said jury, and all the charges of gross error in 
said verdict, and insists that the complainant is not enti- 
tled again to re-examine the same matters, but that such 
decision thereof is conclusive upon said complainant. 

He also denies that said judgment in the foreclosure 
suit against Warren Jordan, failed said Carter as a defence, 
on the trial of said suit in Trover, between said Carter and 
Bennett, because of mere accidental irregularities or mis- 
talres over which he, said Carter ha(l no control, and as to 
which he could not judge. 

He also denies that the failure of said Carter to obtain 
the benefit of his said proceedings in said suit of foreclos- 
ure against Warren Jordan, and the causes of said failure 
w^ere of a kind not to impair any claim which said Carter 
might have to the aid of a Court of Equity, as is sought to 
be shown by said Carter by the statement made in his said 
bill, on the contrary this defendant insists that the acts of 
said Carter in respect to the said proceedings in said fore- 
closure suit, do and should seriously impair any such 
claim, if any he has, and that said proceedings in said 
foreclosure suit and said Superior (now Circuit) Court of 
Franklin County, against said Warren Jordan, and the 
acts of said Carter in connection with the same are a bar 
to the relief asked by said Carter. 



TERM AT TALLAHASSEE, 1855. 231 

Carter ts. Bennett, et. al. — Statement of Case. 

He also denies the allegation contained in said bill of 
complaint charging him with fraudulent conduct in the 
purchase of said slaves and with the intent as alleged of 
defrauding the Georgia Rail Road Banking Company, and 
the creditors of Warren Jordan, and insists that the same 
were passed upon by the jury in the Trover suit of Car- 
ter and Bennett, and that the judgment rendered in said 
cause is and should be final and conclusive. 

He also denies, that said judgment of Roberts, Allen & Co. 
was obtained as alleged in said bill, upon *^ike evidence," 
and because said judgment is a bar to the relief prayed for 
by said complainant in reference to said judgment. 

He also asserts that the lien of said defendants Davis 
and Semmes, for fees upon the recovery of said judgment 
in Bennett vs. Carter, in Trover are superior to any of the 
equities set up in the bill of complaint. 

He further states, that previous to said sale to this defend- 
ant and Floyd, the said Thornton informed this defendant, 
that a portion of the said slaves were under mortgage in 
the State of Gergia to the Central Bank of that State, for 
something under Five Thousand Dollars. That there was 
no other valid claim against the slaves, and that there was 
sufficient property in the State of Georgia to pay off said 
incumbrance. Defendant was informed afterwards but did 
not know of the sale, that said Thornton had informed 
said Floyd that the mortgage debt was nine thousand 
dollars or thereabouts. 

He further says that the day after the execution of said 
bill of sale and the delivery of said slaves, the instrument 
in writing referred to in said bill as exhibit F. was presented 
to the defendant to sign. That said Floyd had previously 



232 SUPREME COURT. 



Carter vs. Bennett, et. al. — Statement of Case. 

(the same day) signed it, and it was then and there re- 
presented to this defendant that the sole purpose and ob- 
ject of said instrument, was to prevent said Floyd and 
this defendant from pleading any recovery of said negroes 
by virtue of any claims from the State of (Jeorgia as a 
set off to the said joint note of $7000. And it was 
with this purpose and none other that this defendant 
was induced to sign said instrument. This defend- 
ant then believing that there was no valid claim a- 
gainst said property, other than that stated by said Thorn- 
ton, and previously referred to. And he denies that the 
object of said instrument was as stated in said bill, but 
on the contrary it formed no part or condition of said sale 
further than before stated : That though said instrument 
bears date on the day of said bill of sale, yet in point of 
fact, it was drawn up and executed on the next day there- 
after. 

That said bill of sale was a full and absolute convey- 
ance without condition whereas said instrument was up- 
on a separate piece of paper, and designed as ai private 
memorandum for the protection of said Thornton's in- 
terest. 

The record in the Trover suit instituted by Bennett vs. 
Carter referred to in the bill and answer was considered 
and admitted as evidence in tliis case, which embraced the 
testimony given by R. J. Floyd in that case, who stated 
that **Thornton at the time of sale, told me there was a 
mortgage upon certain land and a portion of the negroes 
for some nine thousand dollars. He gave me a list of the 
uegroes that he said were not mortgaged. The most of 
these negroes T got by his advice. After the suit was com- 



TEBM AT TALLAHASSEE, 1845. 233 

Carter vs. Bennett, et. al. — Statement of Case. 

tnenced I found that many of the negroes were mort- 
3:aged that he gave me a list of those as not being mortgaged. 
We did remove the negroes immediately from the jail to the 
schooner and got a steamer to tow us in the bay — ^we put 
:hein on Schooner Magnet — divided them at sea. I sold 
nine^ Farrier disposed of his, or has them now, and the 
Viarshal sold Bennett's. We put them on the Schooner to 
end them where they might be divided without being 
nolested by the Georgia debt of nine thousand dollars. I 
vas with the negroes. Bennett and Farrier were both 
Jiere? the officers of the schooner and steamer that towed 
:he schooner down, were there and possibly some passen- 
^rs on the steamer." 

A. 6. Semmes and W. Q. M. Davis who were made 
iefendants, severally answered that they were engaged as 
ittomeys in the prosecution of said Trover suit of Bennett 
igainst Carter and severally claim that they have a lien 
for their fees upon the judgment rendered therein, superior 
to the alleged equities of complainant and should be allow- 
ed the same out of said recovery. A. Q. Semmes, Esq. 
claims that for his services in said suit he is entitled* to the 
mm of $5000.00 and W. G. M. Davis, Esq. states that by 
x>ntract and agreement with Bennett, he was to receive 
12,500.00, for his services in the Supreme and Circuit 
Courts of the State, and the further sum of $1,200.00, for 
lis services in the Supreme Court of the U. S. 

Robert May likewise answered, stating that he held an 
ifisignment of the judgment rendered in the Trover case, as 
collateral security. 

On the coming in of the answer of Bennett the court be- 
ow on motion in his behalf dissolved the injunction which 



234 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

had previously been awarded, and the complainant Carter 
prayed an appeal to the Supreme Court. 

James T. Archer and R, J, Moses for appellant. 

W. 0. M. Davis and A, 0. Semmes, for appellees. 

HON. W. A. FOKWARD, Judge of the Eastern Cir- 
cuit, (who presided in the case in lieu of BALTZELL, C. J— 
disqualified) delivered the opinion of the court. 

The bill was filed to cancel a bill of sale from one Reu- 
ben Thornton to said Bennett and Floyd, and to require 
the defendants Bennett, Floyd and Roberts, Allen & Co., 
to release all right, title, interest or claim under said bill of 
sale, in and to said slaves therein mentioned, as against the 
said Farish Carter, also to set aside a judgment at law in 
an action of Trover in the Circuit Court of Franklin Co., in 
this State,wherein the said Bennett was plaintiJBP and said Far- 
ish Carter was defendant, for the conversion of some of the 
negroes mentioned in said bill of sale. And also in anoth- 
er action therein, between Roberts, Allen & Co., plaintifib, 
and said Farish Carter, defendant, (and which is alleged to 
be the property of said Bennett,) for the conversion of oth- 
er of said negroes which were of said Jordan and Thorn- 
ton; and that they be required to release, cancel or dis- 
charge the same, or that they be perpetually enjoined from 
the collection thereof, or if the said judgment be not decreed 
to be cancelled as against equity and good conscience, that 
the said judgments be allowed to be paid extinguished and 
set-off on a mortgage of one Warren Jordan, to the Georgia 
Railroad and Banking Company, assigned to the said Far- 
ish Carter, embracing the said slaves in said bill of sale of 
Thornton to Bennett, (as well as other property real and 
personal,) and on another claim which the said Carter has 
as judgment creditor of said Jordan. 



TERM AT TALLAHASSEE, 1855. 235 



Carter vs. Bennett, et. al. — Opinion of Court. 

And that said defendants be enjoined from further pro- 
ceeding in the prosecution or institution of any suits at 
law against said Carter, until the final decree in this 
cause. 

And that said defendants Bennett and Floyd be required 
to produce the slaves received of said Thornton, under and 
by virtue of said bill of sale, and which have not been sold 
under execution upon a judgment of foreclosure of said mort- 
gage upon a petition filed on the common law side of the Su- 
perior Court of Franklin county, by the said Georgia Railroad 
and Banking Company,) for the use of said Carter against 
Warren Jordan. 

And that as to the said last mentioned negroes, the said 
mortgage be foreclosed, and that said Bennett and Floyd 
and all persons claiming under them, be barred of and 
from all equity of redemption therein under said deed of 
mortgage, held by said Carter as such assignee, and that 
said slaves when produced be sold to pay the balance due 
on said mortgage debt, that said Farish Carter be allowed 
to credit upon said mortgage, at a fair and just valuation, 
the slaves sold and retained by said Carter, on the said 
judgment of foreclosure in said Superior Court, and which 
were not recaptured by said Bennett; and also the balance 
due said Carter on his said judgment in Georgia against 
said Jordan and that if such sales prove insufficient, that 
the balance be decreed to be paid by said defendants, Ben- 
nett and Floyd, or if the said slaves cannot or will not be 
delivered up to abide the decree of said Court of Equity, 
that said Bennett and Floyd be decreed to pay the whole 
amount due to said Carter on said deed of mortgage, and 
judgment against said Jordan in Georgia, {as it is contended 



236 SUPEEME COURT. 

Carter vs. Bennett, et. al. — Opinion of Court. 

in said bill they agreed to do by their agreement with said 
Reuben Thornton at the time of their purchase,) And that 
the said pretended assignment of said judgment in Trover 
against said Carter, to said Reuben May by said Bennett, 
lie declared null and void as against said Carter; and that 
the said pretended liens on said judgment in Trover for 
fees set up by defendants, Semme.-;, Baltzell and Davis, 
attorneys for said Bennett, be decreed to be contrary to 
equity; and that tliey be disallowed, or if any part of their 
said demands be allowed, that an account be taken there- 
of and the same adjusted upon proof. And a general prayer 
for other and further relief. ' 

An injunction, after argument, was granted in the Cir- 
cuit Court, and upon the coming in of the answer of the 
defendant (Bennett,) said injunction on motion of Solicitor, 
and without further argument, was ordered to be dissolv- 
ed. 

From which order (as provided by act of 7th January, 
1853,) an appeal has been taken to this court. 

The first question that presents itself is the practice of 
Courts of Equity in dissolving or retaining injunctions, upon 
the coming in of the answer of defendant. 

We believe it to be the almost universal practice, that if 
the answer fully denies all the circumstances upon which 
the equity is founded, credit is given to the answer and the 
injunction dissolved. This practice, however, is not with- 
out exceptions. Chancellor Kent in Roberts vs. Anderson, 
2 John, Ch, R., says: "that even where all the equity of 
the bill is denied by the answer, it is not of course to dis- 
solve the injunction; as the granting and continuing an 
injunction rests always in the sound discretion of the court 
to be governed by the nature of the case/' 



TERM AT TALLAHASSEE, 1855. 237 



Carter vb. Bennett, et. al. — Opinion of Court. 

The complainant by his solicitor contends that the chan- 
cellor erred in dissolving the injunction, because tliere is 
sufficient equity disclosed by the answer to have induced 
the court to continue it until tlie hearing; and also be- 
cause the equity of the bill upon which the injunction 
rests, is not denied by the defendant. 

The defendant in.sists that the injunction should be dis- 
solved, because the said Bennett in liis answer says: 

I. The Court of Equity of this State has no jurisdiction 
over part of the matters alleged in said bill, to wit: *'So 
much tliereof as relates to the judgment, asserted by com- 
plainant to be held by him against Warren Jordan in the 
State of Georgia, because he says that said complainant 
has never obtained judgment in this State upon said judg- 
ment, and had executed issue thereon, and a return of 
no property. 

II. Because as to other parts thereof, the said Bennett in 
his answer states "that the facts in said complainant's 
bill, set forth as to the nature and character of said con- 
veyance of said slaves by said Jordan to said Reuben 
Thornton, and by said Thornton to this defendant, (Ben- 
nett,) were fully known to said complainant, (Carter,) in 
the year 1842, and more than five years before the bringing 
of this suit. And that the rendition of said judgment, as is 
by said complainant asserted, occurred more than ^ve 
years before the bringing of this suit, to wit: iu the year 
1842, and that the possession of said negro slaves by this 
defendant, (Bennett,) and his acts, and ownership over the 
same, and said suit at law against said complainant for 
the seizure of said slaves, began more than five years be- 
fore the bringing of this suit, to wit: in the year 1842, and 



238 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

have continued without any cessation or interruption up 
to this time, and that therefore the right of said complain- 
ant in his said bill asserted, as a judgment credi^ot of said 
Jordan, against this defendant (Bennett,) as the purchas- 
er and owner of said negro slaves, or a judgment recover- 
ed for the conversion thereof, began and existed, it at all, 
more than five years before the bringing of this suit, and 
that the failure of the complainant to institute suit thereon, 
has not arisen from any act of this defendant, nor been pre- 
vented by any legal disability of said complainant, but 
that such delay and lapse of time has arisen from the 
laches and fault of said complainant, ail of which this 
defendant (Bennett) insists is a bar to the discovery and 
relief so prayed." 

III. Because the said Bennett in his answer denies that 
be became liable as the trustees of the said Carter, as 
charged in said bill, and if such was the fact, because he 
says therein, that so far back as the year 184'J, he asserted 
adverse title and possession to said negroes so purchased by 
him, against the said complainant, of all which the said 
complainant had notice at the time aforesaid, and has 
maintained the same up to the present time, tlmt by reason 
of said facts and said lapse of time, that said complainant 
is and should be barred from any and all relief sought for 
by said bill by reason of said alleged trust. 

VI. Because the said Bennett in his said answer says that 
to so much of said bill as seeks relief against the 
suits now pending in Franklin Circuit Court, in favor of 
this defendant against said complainant, said Court of 
Equity had no jurisdiction over said suits by reason of the 
fact, that if the matters alleged in said bill be true, it is 



TERM AT TALLAHASSEE, 1865. 239 



Carter vs. Bennett, et al. — Opinion of Court 

competent for said complainant to plead to said suits a 
former recovery, and that said complainant has a full and 
complete remedy at law to said suits. 

V. Because the said Bennett in iiis answer says that all 
and singular the matters in relation to the claim by 
said Carter in his said bill, sat forth in respect to 
any mortgage of said slaves, sued for in said action of 
Trover, and as to the owaership bv said Carter oF the debt 
in said mortgage provided lo I'e paid, were in said action 
of Trover fully considered and detemdnad, and this defen- 
dant (Bennett) relies on the said judgment rendered in said 
action, as a conclusive and Cinal adjudication of said mat- 
ters, and craves the benefit thorcof as a final seitlenient 
thereof, and insists upon the same ab n complete answer to 
so much of complainant's bill a« seeks from said defendant 
any discovery in relation to said mortgage or tlip. owner- 
ship of said mortgage debt by said Carter in bar of the 
relief in respect to said asserted n^ortgage and ricrtgage 
debt, which said Carter asks in his said bill. 

VI. Because the said Bennett in his caid answer says, 
that the said finding of said jury, and said judgment of 
said court in said action of Trover, should be deemed and 
held to be final and conclusive upon said questions relating to 
any mortgage of said slaves, because such matter was a 
proper subject matter of defense, capable of being present- 
ed by said Carter on the trial of said action, and capable 
of being considered by said jury and court in mitigation of 
damages and that even if it were true that said matters were 
not presented to said jury by said Carter, and by them 
were not considered, yet that such failure, if ,it had occur- 
red, was the fault of said Carter, and that it is contrary to 



840 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

equity and grossly vexatious on the part of said Carter, to 
seek to renew the litigation in respect to said alleged 
mortgage by said Carter, now again in his said bill set up 
after the same matters have been fully heard, and after said 
Carter attempted to prove said matters on the trial of 
said action of Trover. And that it is contrary to equity 
and the rules of equity proceedings, and beyond the pow- 
er and jurisdiction of said Court of Equity to re-examine 
and decide in this proceedings the said matters so before 
fairly tried and decided in said suit at law, or in any wise to 
re-investigate the matters of fact which might and should 
have been litigated in said action at law. 

VII. Because he says Bennett in his answer says, that if the 
allegations in said Carter's bill be true, that said facts as to 
said mortgage and the rights of said Carter in respect there- 
of, were not fully tried and decided in said action of Trover, 
yet this defendant (Bennett) insists that the conduct of 
said Carter in keeping back his asserted equitable claim 
and obstinately litigating with defendant in a court of 
law at a ruinous cost to defendant, whilst as said Carter 
now asserts, said Court had no jurisdiction to administer 
complete relief, does not entitle said complainant to the 
aid of this court, but on the contrary imperiously requires 
that by refusal to grant this relief asked, a just re- 
buke should be administered to conduct so litigious and 
oppressive in its character. 

VIII. Because said Bennett in his said answer, denies 
the statements in said bill as to the grounds of the re- 
fusal of the judge who tried said suit in Trover, between 
said Bennett and Carter. 

IX. Because said Bennett in his said answer denies 



TEEM AT TALLAHASSEE, 1855. 241 

Carter vs. Bennett, et. al. — Opinion of Court. 

allegations as to the character of the verdict of said 
' and all the charges of gross error in said verdict, and 
its that the complainant is not entitled again to re-ex- 
ne the same matters, but that such decision thereof is 
:^lusive upon said complainant, 
1. Because said Bennett in his said answer denies that 

judgment in the foreclosure suit against Warren Jor- 
^ failed said Carter as a defence on the trial of said suit 
Trover, between said Carter and Bennett, because of 
-e accidental irregularities or mistakes over which he said 
Her had no control, and as to which he could not judge, 
il. Because said Bennett in his said answer denies that 

failure of said Carter to obtain the benefit of his said 
ceedings in his said suit of foreclosure against Warren 
dan, and the causes of said failure were of a kind not to 
)air any claim which said Carter might have to the aid 
a Court of Equity, as is sought to be shown by said 
•ter by the statements made in his said bill, on the con- 
ry, this defendant insists that the acts of said Carter in 
3ect to the said proceedings in said foreclosure suit, do 
I should seriously impair any such claim, if any he has, 
I that the said proceedings in said foreclosure suit in 
i Superior (now Circuit Court of Franklin county, a- 
nst said Warren Jordan, and the acts of said Carter in 
nection with the same, are in bar to the relief asked by 
i Carter. 
^11. Because the said Bennett in his said answer denies 

allegations contained in said bill of complaint, charging 

1 with fraudulent conduct in the purchase of said slaves, 

i with the intent as alleged, of defrauding the Georgia 

ilroad and Banking Company, and the creditors of War- 

17 



242 SUPREME COURT. 



Carter yb. Bennett, et. al. — Opinion of Court. 

ren Jordan, and insists that the same were passed upon by 
the Jury in the Trover suit of Carter and Bennett, and that 
the judgment rendered in said cause is and should be final 
and conclusive. 

XIII. Because the said Bennett in his said answer, denies 
that said judgment of Koberts, Allen & Co., was obtained 
as alleged in said bill, upon "like evidence," and because 
said judgment is a bar to the relief prayed for by the com- 
plainant in reference to said judgment. 

Lastly. That the lien of said defendants, Davis and 
Semmes, for fees upon the recovery of said judgment in Ben- 
nett vs. Carter, in Trover, are superior to any of the equi- 
ties set up in bill of complaint. 

In determining whetlier the injunction shall be continued, 
it is necessary to examine whether the prayer of the bill in 
any of its aspects may be granted at the final hearing, for 
this purpose we take up the reasons urged by said defen- 
dants in the order presented. 

To the Ist. objection. We say did the bill contain noth- 
ing but the claim set up under this judgment in Georgia, 
and the complainant thereby seeks to interfere with the 
frauds of the original debtor, (Jordan) then the position as- 
sumed in this respect would be fatal, for until judgment 
has been recovered thereon, and execution sued out, and 
pursued to every availahle extent, he is but a creditor at 
large. 

It is true the constitution of the United States provides 
that as to matters of evidence it shall be entitled to full 
faith and credit (and that credit is considered due to judg- 
ments of courts of sister States in Florida,) but we cannot 
hold that the like faith and credit, should be given, to sub- 



TEKM AT TALLAHASSEE, 1855. 243 

Carter vs. Bennett, et. al. — Opinion of Court. 

sequent acts under said judgment, such as issuing and re- 
turning of execution thereon in another State. 

There are however other matters set forth in said bill, 
which we think as hereinafter stated, gives the said Court 
of Chancery jurisdiction in this cause, and as this judgment 
forms a part of the transactions, and is the property of the 
complainant who has submitted himself to the jurisdiction 
of said court, and seeks justice therein, it may therefore be 
properly acted upon, the court of chancery having jurisdiction 
for one purpose will retain the bill as to all other mattei*s 
necessary, to the attainment of justice between the parties, 
and arising out of the subject matters. 

Holding these views on this point, it is deemed unneces- 
sary to determine the various questions of remedy for re- 
covery of claims of an equitable nature, by one non resi- 
dent against another, so ably presented by the solicitors on 
both sides. 

To the 2d objection. We do not think it necessary to decide 
in this cause, whether judgments of courts of another State 
should be considered as simple contract debts or not, and 
under the operation of the lex fori as to the statute of 
limitations because there are sufficient circumstances and 
facts alleged in said bill, wliich (if found tnic) will bring 
the case within the well known rules uf equity, taking it 
out of the operation of rhe <u*t. l»e:?i.l'M (a- will bo liert,- 
iriitfr seen) we hold that saLi mortga.Lro assiirKcu 1o sn'l 
Farish Carter, can be foreclosed in said Court of Chancery, 
under the bill in this cause, and that in said "Exhibit F." 
declared to be the agreement of said Bennett and Floyd, 
with said Thornton, of the terms of purchase, a trust is 
created for the payment of said mortgage and debts. 





244 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

In Kane vs. Bloodgood 7 John Ch. R. 111. Chancellc^' 
Kent lays down as law, ^'That tlie trusts intended by th 
Courts of Equity, not to be reached or affected by th- 
statute of limitations, are those technical and continuini 
trusts which are not at all cognizable at law but fall withii 
the proper, peculiar, and exclusive jurisdiction of th^fc" ^ 
court.'* See also Bond vs. Hopkins, 1 Schoales and Le- 
froy 4*38. And this ruling seems perfectly harmonious with 
the judgment in Beck ford and others vs. Wade 17 Vesi 
97, cited by Mr. Davis, one of the Solicitors for Defen — 
dants. 

It is contended by Judge Semmes of counsel for defen — 
dants, that said Bennett has held possession of these 8lav< 
adversely to Carter since the date of his purchase in ^42, an( 
Carters rights (if any) are barred by the statute of limita- 
tions. We have already seen that if this agreement, settinj 

forth the terms of purchase, between Bennett and Floyd 

and Thornton is estai)lished, and the claims of Carter not=^ 
barred at the time of the execution, then, the Court oi 
Chancery has peculiar and exchmve jurisdiction. If it wer^ 
not so the bill, exhibits, and answer, present anything but 
possession adversely to Carter, — in other words, adverse 
possession, according to the legal requirements thereof. 

To the 3d objection. The said Bennett denies that he 
became liable as the trustee for said Carter as charged in 
said bill. It is contended in said bill that Bennett and 
Floyd, thus became liable under an agreement setting 
forth the terms of the purchase, which said agreement is in 
the followino: words: 




Tekritouy of Florida, 
Franklin County. 



[ 



TERM AT TALLAHASSEE, 1855. 245 

Carter vs. Bennett, et. al. — Opinion of Court. 

Whereas, Keuben Thornton of the county of Hall, in the 
State of Ga., has this day sohl R. J. Flovd and A. T. Bennett 
the following negroes wliicli are now in the hands and posses- 
sion of the Marshal under an attachment sued out against 
one J. L. Hodges, to wit: (naming negroes, seventy-eight in 
number,) wliich said negroes are sold by the said Thornton 
to us the said II. J. Fh)yd and A. T. Bennett, subject to all 
the liabilities that are against them in the way of debts, 
E?itlier by note, judgment or mortgage in the State of 
Cicorgia, either as tlie proj)erty of Warren Jordan or the 
>aid Keuben Thornton, the said Keuben Thornton only 
k^arranting the same against himself and his heirs. This 
is therefore given by us to show that if any of said proper- 
ty should be lost by suit in consequence of any claims as 
aforesaid, that it is to be no set-off or plea against the pay- 
ment of the note of seven thousand dollars, bearing even 
date with tliese presents, given by said Bennett and Floyd 
in payment for said negroes, as witness our hands and seals 
this 16th March, 184*2. 

R. J. FLOYD, [seal.] 
A. T. BENNETT, [seal.] 

Signed, sealed and delivered in presence of 

J. C. Harris, 

J. M. Texgue. 

When we take into consideration the whole facts of this 
case as disclosed by the record in the Trover suit, there 
cannot be a doubt but that both Bennett and Floyd, at the 
time of the purchase were conversant of the fact, that there 
were liabilities beyond the mortgage, of said Jordan and 
Thornton in Georgia. At any rate they were sufficiently 
advised to put them on their guard. They certainly knew 



i6 SUPEEME COURT. 





Carter vs. Bennett, et. al. — Opinion of Court. 

that jive days before their purchase, Warren Jordan 6ol< 
these same negroes (with four others) making in all 79, tor > 
said Reuben Thornton, for $30,000 cash down — the bill ol 
sale of which, was witnessed by the said Bennett in Geor- 
gia, wliere he had gone at tlie request of said Thornton oi 
business connected with the same slaves. 

Knowing this they purchased 65 of said negroes foi 
$14,000 — and partly on credit. Now why this reducei 
price? It is not explained by Mr. Bennett in his answer? 
Is it not the natural conclusion that the amount due on th( 
mortgage on said slaves and Carter's judgment in Georgii 
then recovered and a lien upon them form a part of th< 
consideration they were to pay? What did they mc 
when they declared \inder their hand and seal, that the] 
bought said negroes subject to all the liabilities that ai 
against them in the way of debt, either by note, judgmentz^ 
or mortgage in the State of Georgia, either as the property^ 
of Warren Jordan or the said Reuben Thornton? Mr- 
Bennett in his answer to the bill of complaint, states: 
"That previous to said sale to this defendant and Floyd, 
the said Thornton informed this defendant, that a portion 
of said slaves were under mortgage in the State of Geor- 
gia, to the Central Bank of that State, for something un- 
der five thousand dollars, that tliere was no other valid 
CLAIM against the slaves, and that there was sufficient pro- 
perty in the State of Georgia to pay off said incumbrance. 
Defendant was informed afterwards, but did not know at 
the sale that said Tliornton had informed said Floyd the 
tlie mortgage debt was nine tliousand dollars or ther^ 
abouts." 

"This defendant further says that the day after the 
ecution of said bill of sale, and the delivery of said sIf 



TEEM AT TALLAHASSEE, 1855. 247 

Carter vs. Bennett, et. al. — Opinion of Court. 

the instrument of writing referred to in said bill as exhibit 
"F." was presented to the defendant to sign, tliat said 
Floyd had previously (the same day) signed it, and it was 
then and there represented to this defendant that the sole 
object and purpose of said instrument, was to prevent said 
Floyd and this defendant from pleading any recovery of 
^id negroes by virtue of any claims from the State of 
Georgia as a set-off to the said joint note of 7,000 dollars. 
-And it was with this purpose and none other that this defend- 
ant was induced to sign said instrument. This defendant then 
Relieving that there was no valid claims against said proper- 
ty, other than that stated by said Thornton and previously 
Teferred to/^ 

This defendant denies that the object of said instrument 
was as stated in said bill, but on the contrary it formed no 
part or condition of said sale further than before stated; 
that though said instrument bears date on the day of said 
bill of sale, yet in point of fact, it was drawn up and execu- 
ted on the next day thereafter.^' 

"That said bill of sale was a full and absolute conveyance 
without condition — ^whereas said instrument was on a sepa- 
rate piece of paper and designed as a private memorandum 
for the protection of said Thornton's interests." 

Mr. Floyd says — see his testimony in record of Bennett 
vs. Carter, Trover suit, p. 7. " Thornton at the time of sale, 
told me there was a mortgage upon certain land, and a 'por- 
tion of the negroes for some nine thousand dollars," He 
gave me a list of negroes, that he said was not mortgaged. 
The most of these negroes I got by his advice. After suit 
was commenced, I found that many of the negroes were 
mortgaged, that he gave me a list of, as not being mort- 



I 



248 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court 

gaged." Again on p. 9 he says : we did remove the negroes im- 
mediately from the jail to the Schooner, and got a Steamer 
to tow us in the bay." "We put them on Schooner Mag- 
net — divided them at sea, — I sold mine, Farrier disposed of 
his, or has them now, and the Marshal sold Bennett's. We 
put them on the Schooner to send them where they might 
be divided without being molested by the Georgia debt of 
nine thousand dollars. I was with the negroes; Bennett 
and Farrier were both there ; the officer of the Schooner, and 
Steamer that towed the Schooner down were there, and 
possibly, some passengers on the Steamer." 

In addition to which Mr. Bennett in an affidavit filed in 
a suit of Charles T. Thornton vs. Bennett and Floyd — 
which will be found on page 97 of said record, made an 
exhibit to the bill in this cause. "That the said slaves be- 
ing the property of one Warren Jordan in the State of 
Georgia, were fraudulently, clandestinely, covinously, col- 
lusively, wickedly, illegally and improperly, against the 
laws of said State, run off, removed and carried away from 
said State, by said Jordan and said Reuben Thornton, 
said removal being made, executed, contrived and devised 
of fraud, covin, collusion and guile, to convey them from 
said State, out of and beyond the United States to Texas, 
to the end, purpose and intent to convert tliem to their 
own use and profit, and to delay, hinder and defraud the 
Georgia Kail road and Banking Company, and others to 
whom said slaves had been mortgaged, and other credit- 
ors IN THE State of Georgia." 

Now it is true, that this affidavit does not state when the 
said Bennett became possessed of the fact that there were 
''other creditors in the State of Georgia" besides this mort- 



TERM AT TALLAHASSEE, 1855. 249 

Carter vs. Bennett, et. al. — Opinion of Court. 

gage. — And it is not forgotten that said Bennett in his said 
answer says he has made this affidavit under misappre- 
hension of its contents, yet in connection with the state- 
ment made in Exhibit "F.'^ by Floyd and Bennett, to wit: 
"which said negroes are sold by the said Thornton to us 
the said R. J. Floyd and A. T. Bennett, subject to all the 
liabilities that are against them in the way of debt, either by 
note, judgment or mortgage in the State of Georgia, either 
as the property of Warren Jordan, or the said Reuben Thorn- 
ton, the said Reuben Thornton only warranting the same 
against himself and his heirs,'^ added to which a statement 
in said bill of complaint, that said Bennett at the time of 
said purchase knew of said judgment of said Carter in 
Georgia, and tliat said Bennett does not in his answer ex- 
pressly deny that he knew or had heard of said judgment 
but speaks of ''valid claims/' we can come to no other 
conclusion but that he knew or heard of said judgment at 
the time of said purchase. 

We do not think it material whether he knew or had 
heard of said judgment or not, if our view of it is correct, 
they state under their and hand seal, that said negroes 
are sold by the said Thornton to them "subject to all the lia- 
bilities that are against them, in the way of debt, either by 
note, judgment or mortgage in the State of Georgia/' 

It may all be true as Mr. Bennett says in his answer, 
that this instrument was designed as a private memoran- 
dum, for the protection of said Thornton's interest, and yet 
be a declaration or admission of the terms upon which the 
purchase was made. 

A written instrument is construed by courts, and in con- 
struing said written agreement, we think the first part 



250 SUPREME COUHT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

thereof is a declaration of the terms upon which said Floyd 
and Bennett purchased the said negroes, while in the lat- 
ter clause thereof, they stipulate not to off-set or plead a- 
gainst the payment of the note therein mentioned^ any 
thing that may be lost by suit in consequence of said claims 
or that they may have to pay. Mr. Bennett in his answer 
gives a different version of this agreement, but the answer 
is only evidence of the facts, to which other testimony 
could be received, therefore the answer of defendant will 
not be admitted to show that the true intention of the par- 
ties to said written agreement was contrary to what ap- 
pears on the face of it. Bott vs. Berch, 4 Madd. 255. 

It seems clear from the facts disclosed in connexion with 
this instrument, that they purchased only the Equity of Re- 
demption of said Jordan and Thornton, in said negroes, 
and that as between the parties, the justice and equity and 
understanding of the purchase (and courts should equitably 
construe a lawful stipulation,) was that the mortgage of the 
bank, and the judgment of Carter, were to be met and paid 
by said Bennett and Floyd, to any amount not exceeding 
the value of said slaves at the time said liability may be 
enforced, (if upon the final hearing of this case it should ap- 
pear from the evidence that said mortgage and judgment 
were at the time of the purchase, due and owing in the 
State of Georgia, by either Jordan or said Thornton, and a 
lien, there upon said slaves.) 

At any rate we can give it no other construction, unless 
we declare it an illegal transaction, void for fraud or cham- 
perty. By thus viewing it, the purchase becomes a 
bona fide transaction, and the allegations of fraud charged 
against said Bennett in the bill, fall harmless and are un- 



TERM AT TALLAHASSEE, 1855. 251 

Carter vs. Bennett, et. al. — Opinion of Court. 

necessary to be considered. If said agreement was exe- 
cuted by said Bennett under false suggestions, assertions 
and fraudulent representations, and injury tliereby inflict- 
ed, the Court of Chancery has in this suit on the final hear- 
ing, the power to relieve and do equity. 

Considering said agreement of purchase a legal trans- 
action, as between Bennett, Floyd and Carter, (provided 
he is found a mortgage or judgment creditor in Georgia,) 
it constitutes a constinictive trust, a trust raised by courts 
of Equity in their favor, as an interest in rem, capable of 
being enforced directly by Carter in a Court of Chancery 
only. 2 Story's Eq., Ju. page 673, § 1244. Ferris vs. 
Crawford, 2 Denis, 598, and Eugle vs. Haines, et al, 1 
Halsteds Ch. E., 187. 

It is contended by Mr. Davis, solicitor for defendants, 
that the trust is indefinite and cannot be carried out. — 
We see no reason why the trust cannot be ascertained and 
carried out in a Court of Equity, particularly under the 
whole transactions between the parties as they are now 
before the court. 

Judge Semmes of Counsel says, "it was competent in 
Carter to ratify the trust and insist upon its execution, 
and he is stopped from insisting upon a trust which 
through a long course of judicial proceedings, he has here- 
tofore disclaimed." It would have no doubt been much 
better had said Carter, long ago, filed his bill in Chancery, 
his neglect to do so, has caused much of the difficulty and 
perplexity in this cause; but we cannot find in the historv 
of the litigation between these parties that Mr. Carter has 
either expressly or impliedly disclaimed the trust, he has been 



252 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

a defendant, up to this suit, in all the litigation excepting the 
suit against Bennett in Georgia, and in this last suit, Bennett 
did not set up the trust ; there is nothing before us showing 
that the said trust was ever denied by said Bennett, until 
this bill was filed, therefore we cannot say said Carter is 
estopped from insisting upon said trust. 

As to the 4th objection. It is no way clear that a court 
of law could, under its mode of proceeding, give the relief 
asked for in the bill, as to the suits now pending in the 
Franklin Circuit Court, between the said parties, and it is 
doubtful whether a plea of former recovery could be pleaded 
to them, the rule is, that in doubtful cases of this charac- 
ter, Courts of Chancery will entertain jurisdiction. West 
vs. Wayne, 3 Missouri, 16, 1 Story's Commentaries, 5 32. 

As to the 5th objection. We do not think under the cir- 
cumstances, the judgment rendered in said action of Tro- 
ver between the said Bennett and Carter, should be con- 
sidered as a final and conclusive adjudication, in resp)ect to 
said mortgage and the ownersliip of said mortgage, be- 
cause thev were not and could not have been fullv consid- 
ered and determined. Had said mortgage and the owner- 
ship of said mortgage been fully before the jury, and proven 
to have been duly assigned to said Carter, under the charge 
of the court, no such verdict could have been rendered with- 
out having been set aside, as contrary to law and the 
charge as given by the Judge on tlie trial of said cause in 
6th, 7th and 8th instructions asked. Neither the notes or 
the ownership of the mortgage were in evidence, and as to 
them, between Carter and Bennett, Carter was, as stated 
in the opinion of the court in this cause, 4 Fla. R., page 
348, a stranger. 



TERM AT TALLAHASSEE, 1855. 253 

Carter vs. Bennett, et. al. — Opinion of Court. 

The jury considered the judgment in the foreclosure 
suit, (which was in evidence) erroneous and fraudulent. — 
This court has affirmed their finding and declared the 
judgment illegal, therefore the defence could not at 
that time and under the circumstances be made available 
in that suit. It is true, as is urged by the coTinsel for the 
defendants, that on said trial an attempt was made to in- 
troduce the said notes, and thereby affirm the assignment 
of the mortgage to said Carter, and that the same was un- 
successful, and said Carter then relied upon said judgment 
of foreclosure for his defence, which was considered erro- 
neous, consequently fraudulent, yet this is nothing more 
than an unsuccessful attempt to defend under the judgment 
of foreclosure and fraud. 

As we have already seen, the mortgage and the owner- 
ship of said mortgage, could not have been considered and 
determined by the Jury, for they were not in evidence ; 
the notes to secure which, it is alleged the mortgage 
was given, were ruled out and withdrawn, and not again 
offered. 

It is contended by the defendants, that the prayer of the 
bill asking foreclosure of said mortgage cannot be granted. 
The judgment of foreclosure on the petition, having been 
declared a nullitv and void, we see no difficultv in the wav 
of foreclosure of the seventy-nine negroes, brought to this 
State and embraced in said mortgage as part of the relief 
asked in said bill. 

It is admitted, as contended, that the proceedings to 
foreclosure in equity is altogether a proceeding in rem, 
and the estate of the mortgagor cannot be reached further 
than the property subjected in the mortgage, to the 



254 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court 

payment of tlie mortgage debt; nevertheless, there is no 
difficulty under the peculiar circumstances of this case in 
carrying it out. The mortgagee, (Carter,) is the com- 
plainant; he comes to the court asking equity, of course 
he can be required to do equity. The Chancellor has fulV ' 
power to require him to submit the 17 negroes in his po& — 
session as mortgagee, to the foreclosure and sale, as alscm^ 
to acquire an account of the liires and increase. Besides^ 
it appears that some of the negroes are still in this State- , 
and Bennett who has appeared and answered this bill a^^f 
complaint, and who is the purchaser of the equity of re — 
demption, can be required to bring forward the n( 
which he has or should have, and in the event he doe 
not, he and said Floyd as trustees, under their agreemen 
aforesaid, may be decreed to pay tlie value of said negroes — 
This is not subjecting the purchaser of the equity of re- 
demption to personal accountability, under an application, 
to foreclose a mortgage ; but it is subjecting him or them to 
personal accountability in pursuance of their agreement 
of purchase ; nor it is subjecting the estate of the mortgagor 
further than the value of the property subjected to the pay- 
ment of the mortgage debt. 

As we have already said. Carter having submitted to 
the jurisdiction of this court, and asks from it equity, in 
making him do equity, the judgment of Carter vs. Bennett, 
in Georgia, and which has been converted to a judgment 
in Florida, may be acted upon as the equities of the whole 
matters may seem best. So as to the judgment in Trover 
of Bennett vs. Carter. This also arises out of the mort- 
gage transaction, and forms a part of the matters involved 
in litigation. In doing equity we see no reason why the 
judgment may not be permitted to stand restrained by the 



A 



TERM AT TALLAHASSEE, 1855. 255 



Carter vs. Bennett, et. al. — Opinion of Court 



injunction and be adopted by said Chancellor as an adju- 
iicated amount for hires and damages for the trespass in 
baying illegally taken into possession said 14 negroes, or 
if in his opinion, after hearing all the testimony, he should 
think the amount recovered grossly unconscionable, then 
be would have power to reduce the amount to such sum as 
might be considered right and proper. 

If in any of the transactions in Georgia, or acts of Car- 
ter there, a credit in view of all the circumstances should 
be made by way of reduction or payment on said mortgage 
in this suit, the defendants Bennett and Floyd will have an 
opportunity of showing the same and claiming the credit. 

It is insisted that the said Carter caused the equity of 
redemption in the real estate in Hall county, Georgia, to 
be levied upon there and sold under his said judgment at 
law, instead of under a decree of foreclosure to satisfy the 
mortgage debt, and purchased it in himself, thereby 
uniting the legal and equitable title in him, and that this is 
an extinguishment of the mortgage debt. 

WTiatever might be said in this respect in a suit between 
Carter and the representatives of Jordan, (the mortgagor,) 
we do not think the position applicable to this case, under the 
circumstances attending it. Tlie construction wliich we 
lave given of the agreement of purchase of the equity of 
-edemption in these 7J) mortgaged negroes, is, that Bennett 
md Floyd, (the j)urchaser?,) agreed tliat this mortgage 
lebt and others mentioned sliould be paid out of said ne- 
groes, or they would meet and pay the same to an amount 
not exceeding the value thereof, consequently any sale of 
said real estate on the judgment debt could work no in- 
jury to them, so far as this mortgage is concerned, but as to 



256 SUPREME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

the said judgment and tlie claims of Carter against them, 
under it, any acts of said Carter's in Georgia or elsewhere, 
such as fraud, collusion in sale, &c., operating an injury to 
said Bennett and Floyd, or either of them, are proper 
matters of security and adjudication by the court on the 
final hearing under the proofs, and such credits may be de- 
creed as are proved equitable and proper. 

The 6th, 7th, 11th and 12th objections are considered and 
disposed of in what has been already said. 

As to the 8th, 9th and 10th objections, we do not think 
under the circumstances as narrated in the record of said 
trial of Bennett vs. Carter, in Trover, the Court of ChaJi- 
cery is authorized under the principles of the court or oi 
sound discretion, to interfere further, than has been alrea-dy 
stated in this behalf, should be done by reduction if co^^* 
sidered just so to do under the peculiar equities of tlii* 
whole litigation. Bills for a new trial according to Lord 
Redesdale, Bateman vs. Wiloe, 1 Schoales and Lefroy, 20Xy 
have not of late years been much countenanced in England- 
Thev are very rarely entertained in the Courts of Chancer*^ 
in this country, and never excepting in a very clear case .<^-^ 
fraud or injustice, or upon newly discovered evidenc^j^ 
which could not possibly have been produced at the firs; 
trial. See also Floyd vs. Jane, 6 John Ch., 480. 

It is laid down in Story's Equity Jurisprudence, vol. 2, 
5888, that "in general it has been considered that the 
ground for a bill to obtain a new trial after judgment in 
an action at law, must be such as would be the ground of 
a bill of review of a decree in a Court of Equity, upon the 
discovery of a new matter." 

Again in §887 the said commentator says: "a«y fads 



i 



TEBM AT TALLAHASSEE, 1855. 257 

Carter n. Bennett, et al. — Opinion of Court. 

which prove it to be against conscience to execute, such judg- 
ment and of which the injured party could not have avail- 
ed himself in a court of law, will authorize a Court of E- 
quity to interfere by injunction." 

Did this bill present no other matters of relief but a new 
trial we should not grant it. 

As to the 13th objection. It is stated with uncertainty 
and very vaguely in the bill, that this judgment of Roberts, 
Allen & Co., was at the trial and is now the property of said 
Bennett, and that the same was prosecuted for his benefit, 
and it was for slaves which had been recaptured by 
said Bennett. Although said Bennett is specially interroga- 
ted in the 18th interrogatory of the bill as to these facts, yet 
he does not seem to have answered said interrogatoiy in 
this particular. 

Should it appear as charged, it would then be a part of 
this transaction or litigation, and the same course can be 
pursued in the Chancery Court as is pointed out in the 
other judgments. 

As to the last objection. We have no "fees or costs'/ of 
Attorneys in this State taxable as between litigant or client 
and attorney, other than is provided by the Statute (see 
Thompson's digest 326,) and known as "Commissions for 
collecting.'' — That act provides "That it shall not be law- 
ful for any Solicitor to charge more than five per cent on 
claims placed in his hand for collection, unless a specific 
contract in writing between the parties exists to the con- 
trary; nor shall such charge be made except on amounts 
actually collected f 

From this Statute it is ascertained what we are to con- 
sider in this State shall be "fees'* of Attornevs or Solicitors 
18 



258 SUPEEME COURT. 



Carter vs. Bennett, et. al. — Opinion of Court. 

in matters of collection, but for other services not of this 
denomination, and such as are claimed by tlie Solicitors in 
the case at bar a reasonable and fair remuneration (quan- 
tum meruit) should be ascertained and allowed, and tlms 
allowed will also constitute "fees or costs." And the 
same rule of law respecting their liens so well established 
in England, where those fees or costs are taxable, should 
prevail here. 

While our courts hold the members of the bar to strict 
accountability and fidelity to their clients, they should 
afford them protection and every facility in securing 
them their remuneration for their services. An attorney 
has a right to be remunerated out of the results of his in- 
dustry, and his lien on these fruits is founded in equity and 
justice. 

The bill alleges in this case, that said Bennett is insol- 
vent and has removed from the State. The Solicitors then 
are without hope of payment, unless it can be secured 
out of this judgment of Bennett vs. Carter, which is the 
result of the litigation for which they claim payment. 

Wlule we adopt as a rule, the doctrine of the Courts of 
Chancery in England, as laid down in Ex parte Rhodes, 
15 ves. 541 by Lord Eldon, that the right of 'set-off 
prevails in general cases, so as to interfere with 
the Solicitors lien upon the debt recovered, yet as 
was said by Chancellor Walworth in Dunken vs. 
Yaudenbergh 1 Paige 626, *' where other claims arising out 
of different transactions and which could not have been a 
legal or equitable set-off in that suit, exists between the par- 
ties, the court ought not to divest the lien of the Attorney or 
Solicitor which has already attached on the amount recover- 



TERM AT TALLAHASSEE, 1855. 259 

Carter vs. Bennett, et. al. — Opinion of Court. 

ed for the cost of that particular litigation," When a par- 
ty applies to the equity of the court to prevent the Solicit- 
tor from exercising his legal right to collect his costs, the 
equity of the Solicitor to have those costs should be taken into 
consideration/' 

The complainant applies in this case to the equity of the 
court to prevent the solicitors from collecting their costs 
by enforcing the judgment against him. — The trust of Ben- 
nett and Floyd arising out of a different transaction 
than that for which said judgment was recovered, could 
not have been a legal or equitable set-off in that suit for 
until foreclosure and sale of the mortgage negroes, the extent 
of a personal liability could not be ascertained; conse- 
quently this case comes exactly within the exception. 

The greater difficulty in this respect is, that the amount 
of solicitor's fees, respectively, are as yet undetermined. 

The bill denies that said claims for fees exists, and in- 
sists that if their liens do exist, the anfount of the said 
several claims ought to be reasonably adjusted and allow- 
ed by the court. Mr. Bennett in his answer says, the 
fees on said judgment in Trover are the sum of $5000 to 
Judge Semmes and to Mr. Davis, $3,700, but he does not 
inform us, whether this amount was fixed by agreement in 
writing, or when it was agreed upon, or whether agreed 
upon at all, or whether they are a mere charge made by 
them without any agreement. 

In the answer of Judge Semmes, which was filed aft^r 
said injunction was dissolved, he states, that for his servi- 
ces in said suit he is entitled to the sum of $5,000 — that said 
sum was due and owing him long before the filing of this 
bill. 



260 SUPREME COURT. 



Carter ys. Bennett, et al. — Opinion of Court 

Mr. Davis in his answer, which was also filed after in- 
junction dissolved says "that by contract with A. T. Ben- 
nett he was to receive^' &c. ; in another place he says, 
''that by agreement" &c. but he does not state when said 
contract was made, nor whether it was in writing, nor is 
any written contract or written agreement referred to as 
an exhibit. 

It therefore becomes necessary, that ia irKiuiry and in- 
vestigation should be had and the extent of the lien ascer- 
tained, which should be a reasonable and adequate compen- 
sation. This can be done at the fmai hearing of this mat- 
ter v.tA the Chancellor can then make sncii a decreo i'j 
this respect, if he finds no diflBculties in the way, as the 
proofs may warrant and as to him may seem right and 
just, and secure the payment out of the said recovery or 
recoveries as a prior equity. 

The claim of defendant May as assignee of this judg- 
ment of Bennett vs. Carter was briefly commented upon in 
the argument, and it is presented in the bill and answer 
of Bennett as well as of May. Bennett states he siiU 
has an interest in said judgment. It matters little whether 
he has or not; Mr. May took the assignment as a collateral 
security only, according to his own showing, and were he 
an out and out owner of it, under complete and full assign- 
ment, he would hold it subject to anterior equities. — 2 
Kelly 155. 

It is obvious that in this view of the case, the Court can- 
not dissolve the injunction or dismiss the bill. The order 
dissolving the injunction was erroneous; the injunction 
must stand and the cause remanded to the Circuit Court 
for further action. 



TEEM AT TALLAHASSEE, 1855. 261 



Carter rm, Bennett et aL — Opinion of Court 

It will be seen that this court as an Appellate Courts has 
adjudicated many of the leading questions, which should 
have been first decided, by the judge in the court below — 
a practice of very doubtful propriety. As these questions 
were so fully and at length, urged by the counsel of both 
parties, we consented to thus consider them; it is not 
however, to be considered so as to operate as a precedent in 
other cases. 



DECISIONS 



OF THE 



Supreme Court of Florida, 



AT 



February Term, 1855, 

Held at Jacksonville. 



JosephA.Barbee,Plaintiff in Error vs.the Jacksonvillb 
AND Alligator Plank Road Company, Defendant in 

Error. 

l.The act of the General Asscmbly.incorporating the Jacksonvliie and Alligator 
Plank Road Company, is not In conflict with nor does it contraTene either 
the 24th Section of the let Article, or the 4th Section of the 13th Article 
of the Constitution of the State. 

2. If the defendant demur to the whole declaration and any one of the counti 
be good, the plaintiff shall have Judgment upon the coont. 

3. Whether a corporation can maintain an action upon an impMed promise for 
the collection of assessments made on the shares of stock owned by a corpora- 
tor, and whether the mere Buhtcription for stock, raises an implied assump- 
sit, quere? 



TEKM AT JACKSON V I LJ.E, 1855. 203 



Parbee vs. JMank R. Co. — Sfatemont of Case. 

4. Where there is an express agreement on the part of the stockholder to pay 
for the shares of stock allotted to him, upon default of such payment he may 
be proceeded against by action at the suit of the corporation.notwithstanding 
the Charter may provide for the forfeiture or sale of the shares of delinquents 

5. The failure to file a "bill of particulars," cannot be taken advantage of by 
demurrer to the declaration. 

Writ of Error to the Circuit Court for Duval County. 

This was an action of assumpsit instituted against the 
plaintiff in Error, to recover the amount of divers assess- 
ments upon the shares owned by plaintiff in Error in the 
capital stock of the said company. The first five counts 
of the declaration are based upon a promise to subscribe 
for stock, made anterior to the incorporation of the Compa- 
ny. The next five counts are for the several assessments, 
and they respectively allege a sul)scription made after the 
incorporation of the Company by the plaintiff in Error, for 
ten shares of stock. Tlie Eleventh count is for the aggre^ 
gate amount of the assessments, and the consideration al- 
leged for tlie promise, is ten shares of the capital stock in 
the Company. The twolftli count is an indebitatus count 
for money due and payable on account of divers instalments 
due upon said shares of stock. 

The plaintiff in Error demurred to the declaration and as- 
signed the following causes of demurrer : 

I. That the act of incorporation creating the said plain- 
tiff (defendant in error here,) a body corporate is uncon- 
stitutional and void. 

II. That the first countsL in said plaintiff's declaration 
are and each of them is based upon promises charged and 
alleged to have been made to plaintiff prior to the act of in- 
corporation. 



264 SUPBEMB COUBT. 



Bafbee vs. Plank R. Co. — Opinion of Court 

III. That if the defendant is a stockholder in the said 
Plank Road Company as is alleged in said plaintiff's de- 
claration, he is not subject to a suit for the amount of his 
stock subscribed for, in this form of action. 

IV. That the charter of the said company prescribes the 
remedy against defaulting stockholders. 

V. That the said plaintiff has no where alleged in his 
said* declaration that forty thousand dollars of stock had 
been subscribed for before said company went into opera- 
tion, and further because the said plaintiff no where al- 
leges that the other conditions precedent required by the said 
charter to be preferred before said company could be pro- 
perly organized, have been performed. 

VI. That no proper cause of action has been filed by the 
said plaintiff in the said cause. 

VII. That the said plainitff does not state in said decla- 
ration by whom the subscriptions were received. 

The court below overruled the demurrer, and judgment 
was given by the court (a jury being waived,) on an a- 
greed state of facts, in favor of the plaintiff, (defendiml in 
error here,) for the full amount of its demand. 

McQueen Mcintosh for Plaintiff in Error. 

G, W. Call, Jr. for Defendant in Error. 

DuPONT, J. delivered the opinion of the court. 

This was an action of assumpsit, instituted in the Circuit 
Court of Duval county, by the respondent, for the recovery 
of a sum of money claimed to be due from the plaintiff in 
error, for divers assessments alleged to have beec made 
upon certain shares owned by him in the capital stock of 
the said company. The declaration contains twelve counts, 
the first five of which are upon a promise to subscrilx) for 



TEBM AT JACKSONVILLE, 1855. 266 

Barbee ▼■. Plank R. Co. — Opinion of Court. 

stock, made anterior to the incorporation of tlie company. 
The next five counts are for the several assessments, and 
alledge respectively a subscription for ten shares of stock 
made in writing after the date of the act of incoi-poration. 

The eleventh count is for the aggregate amount of all 
the assessments, and the consideration for the promise is 
alleged to have been ten shares of the capital slock of the 
said company and which is deverred to have been .subscrib- 
ed for by the plaintiff in error, after the passage of the act 
of incorporation. The twelfth is an indebitatus count for 
money due and payable on account of divers instalments 
due upon the said shares of stock. 

To the declaration there was a general demurrer to the 
whole declaration filed, and in which was set forth divers 
special causes of demurrer, which will be particularly no- 
ticed hereafter. 

After due consideration, the court oelow overruled the 
demurrer and by agreement of parties, a jury being waived, 
the case was submitted to the court, u]>on an agreed 
state of facts, who thereupon gave judgmeat for plaintiffs, 
for the full amount of their demand. The only question 
submitted for our consideration is as to the correctness of 
the judgment overruling the defendant's demurrer, and in 
order to a proper elucidation of the ml)jecl, we will pro- 
ceed to consider the several points, in the order in which 
they are presented. 

The first ground of demurrer set forth is, that tlie act of 
incorporation creating the said plaintiff a body corporate, 
is unconstitutional and void. In proceeding to consider 
this ground of objection, the first point presented i.s, does 
the demurrer raise the question of constitutionaliiy ? Mr. 



266 ■ SUPREME COURT. 



Barbee vs. Plank R. Co. — Opinion of Court. 

Ghitty in his work on pleading states the office of a demur- 
rer thus: 

*^Vhen the declaration, plea or replication, &c., appears 
on th e face of it and without reference lo extrinsic matter, to 
be defective either in substance or form, the opposite party 
may in general demur. A demurrer has been defined to 
be a declaration that the party demurring, will ^go no furth- 
er,' because the other has not shown sufficient matter a- 
gainst him, that he is bound to answer." 1 Chitty plead- 
ing, 661. 

And again: "It should, however, be remembered that 3 
demurrer admits the facts pleaded and merely refers ih' 
question of their legal sufficiency to the decision of th< 
court." Ibid. 

Mr. Archbold says : " By a demurrer the party plead- 
ing it admits the truth of all facts correctly pleaded in the 
prececding pleading, but demurs that they are sufficient to 
maintain the action, or (if pleaded by the plaintiff,) to bar 
him from maintaining his action, thus referring the law a- 
rising on these facts to the judgment of the court. Arch- 
bold's Civil Pleading, 308. 

Now what is the fact in this connection, which appears 
on the face of the declaration, and which ac- 
cording to the principle above stated, is to be taken as ad- 
mitted or confessed by the demurrer f The averment con- 
tained in the first five counts of the declaration, is "the de- 
fendant with divers others, were duly incorporated by 
act of the Legislature of the State of Florida, for the pur 
pose of the construction of the Plank Koad aforesaid, by t^i 
name and style of the Jacksonville and Alligator Plank Roa 
Co," ami each of the succeeding counts contains the sam 




TERM AT JACKSONVILLE, 1855. 267 



Barbee ts. Plank R. Co. — Opinion of Coart 

averment in substance. The fact ' that the company had 
been duly incorporated is here expressly admitted by the 
demurrer, and the constitutionality or legality of that act 
of the Legislature cannot be thus enquired into, as it a- 
monntB to a denial of the truth of a fact expressly averred 
upon the face of a declaration. If the defendant should 
desire to present the constitutional question to the court, 
it must be done by a special plea,. This court is not in the 
liabit of deciding questions which do not legitimately arise 
out of the proceedings contained in the record; but inas- 
much as the question was zealously pressed and very ably 
argued by the defendant's counsel, and as it appeared to 
be the mutual desire of the parties to obtain the opinion 
of the court upon it, we have departed from our usual 
practice, and have consented to consider it, as one of the 
questions arising in the case. 

The position assumed by the counsel is, first that the act 
of incorporation creates a ^^ monopoly/' inasmuch as it 
grants to the corporators exclusive privileges ; and 

Secondly, that it is a ''perpetuity/' there being in the 
charter no limit to the time of enjoyment, and that for these 
reasons it is in direct conflict with the express provi- 
sions of the Constitution of the State, and therefore 
void. 

We have been referred upon this point to the 24th sec- 
tion of the 1st article of the Constitution, which is in these 
words : 

"That perpetuities and monopolies are contrary to 
the genius of a free State and ought not to be allowed," 
and again to the 4th section of the 13th article, which reads 
as follows: "No bank Charter or any act of incorpora- 



268 SUPBEME COURT. 



Barbee vs. Plank R. Co. — Opinion of Court. 

tion granting exclusive privileges, shall be granted for a 
longer period than twenty years, and no Bank Charter 
shall ever be extended or renewed." These are the only 
provisions of the constitution which have been brought to 
our attention, and in order to ascertain their bearing upon 
the question, it becomes necessary to consider what is the 
meaning of the several terms, ^^perpetuities" "monopolies" 
and "exclusive privileges" as they are used in the constitu- 
tion. 

With regard to the term "perpetuity," we are clearly of 
opinion that the convention which framed the constitution, 
intended to use it in its legal acceptation, only as applicable 
to estates, A perpetuity may be defined to be such a limita- 
tion of property as will render it unalienable beyond the 
period allowed by the common law, that is to say, for a life 
or lives in being and twenty-one years beyond. If we are 
correct in regard to the intention of the convention, it be- 
comes manifest that this act of incorporation is not in con- 
flict with the clause of the constitution in which that tenn 
is used. 

In regard to the other terms used in the constitution, viz: 
"monopoly and "exclusive privilege," we cannot better ex- 
press our views than by quoting the language of Mr. Walk- 
er in his recent treatise on American law; at page 208, he 
says, "many of the most important branches of trade and 
manufactures, all banking and insurance operations, and 
many of our internal improvements are undertaken and car- 
ried on by incorporated companies. Yet although so much of 
good is thus effected and without any very palpable evil, 
it is not uncommon to hear corporations denounced as mo^ 
nopolies, created for the benefit of the few, to the prejudice 



TEEM AT JACKSONVILLE, 1855. 269 



Barbee vs. Plank R, Co. — Opinion of Conrt. 



of the manj, and hostile to the great republican principle 
of equality. But corporations are not necessarily monopo- 
lies, in the odious sense of that term. A monopoly, as the 
name imports, is a special privilege conferred on one or 
more persons, to the absolute exclusion of all others. In 
this sense it is deservedly odious, because it is essentially 
anti-republican. But our corporations are not in this 
sense monopolies, although charters frequently and con- 
fessedly enable the members of corporations to enjoy ca- 
pacities and realize advantages, which they would not en- 
joy and realize as private individuals, and thus have some- 
thing of the appearance of creating monopolies, yet so long 
as no exclusive privileges are in fact conferred upon any par- 
ticular corporation, and no class of persons are prohibited 
from membership, they can with no propriety be said to 
create monopolies. Our Banks are the nearest approach 
to monopolies, because individuals are expressly prohibited 
from banking privileges. Yet even our banks are not in 
fact monopolies, because no individuals are excluded from 
becoming stockholders, if they have the will and the 



means.'' 



The second ground of objection is, that "the first five 
counts in said plaintiff's said declaration, are and each of 
them is based upon promises charged and alleged to have 
been made to plaintiff prior to the passage of the act of in- 
corporation." We deem it unnecessary to the correct de- 
cision of this case, to determine or even to consider this 
objection, for even should it be well taken, there are other 
sufficient counts contained in the declaration which are not 
obnoxious to the objections; and it is an admitted principle 
in pleading that if a defendant demur to the whole decla- 



270 SUPREME COURT. 

Barbee vb. Plank R. Co. — Opinion of Court 

ration, and any one of the counts be good, the plaintiff sliall 
have judgment upon that count. Chitty on Pleading, 
664 ; Archbold on Civil. Pleading, 309 ; 1 Saunders, 286 ; 1 
Wilson R., 248. 

The tliird ol)jection is that "if the defendant is a stock- 
holder in said Plank Road Company, as is alleged in said 
plaintiff's said declaration, he is not subject to a suit for 
the amount of his stock subscribed for, in this form of ac- 
tion." 

The fourth objection, which is in the following words, 
to wit: "that the charter of the said company prescribes 
the remedy against defaulting stockholders," raises the same 
question as is raised by the third, and the two may there- 
fore be considered together. 

The argument made upon this point by the defendant's 
counsel, is ba^ed upon the provision contained in the 6th 
section of the act of incorporation, and which provides 
that "in case of non-payment of any instalment by a stock- 
holder after due notice by publication or circular for two 
months, such stock and all previous payments thereon shall 
be forfeited to the company. 

The first position assumed in the argument upon this 
part of the case is, that "where tlie act of incorporation 
gives no express remedy against a meml)er for assessments, 
he is liable to no action," and various authorities are cited in 
support of the position. The case of Cutter vs. the Mid- 
delsex Factory Company, (14 Pick. R., 483,) would seem 
to sustain the position assumed in the argument. The 
court say in their opinion in that case, *^y virtue of this 
act, the remedy to enforce the payment of assessments was 
by sale of the shares, no action would lie either against the 



TERM AT JACKSONVILLE, 1855- 271 



Barbce vs. Plank R. Co. — Opinion ot Court. 



proprietor hiraself or his executor." But they further remark 
that "the liability of this corporation depends upon the 
statute of 1808, C, 65, the original act regulating manu- 
factoring corporations, to the provisions of which express 
reference is made in the original act of incorporation," and 
not having access to that statute, in order that we might 
examine its varied provisions, it is impossible to say how 
far it may be taken to sustain the position as a general 
proposition of law. There may be contained in that statute 
for ought that we could know, some negative provision which 
its operation may have restricted the company to the rem- 
edy by sale. 

The case of the Andover and Medford Turnpike Corpora- 
tion vs. Gould, (6 Mass. R., 286,) was also cited to the 
same point, as also the case of the Franklin Gass Compa- 
ny vs. Thomas White, (14 Mass. R., 286,) but they do not 
in our opinion sustain the position assumed. The question 
discussed in the former case, which is a leading one on the 
subject, was not whether the right to maintain an action 
for assessments on stock, depended upon a power expressly 
granted in the charter of incorporation, but the point was 
whether the corporation could maintain an action upon 
an implied promise, growing out of the act of subscription 
by the corporator. Parsons, C. J., with his usual clear- 
ness, discusses this question with marked ability and the 
conclusion at which he arrives is "that when the corpora- 
tors expressly agree to pay the assessments, to induce the 
corporation to make the road, an action can be maintained 
on that agreement, that if there be no such agreement the 
remedy for the corporation is by sale of the delinquent's 
shares, pursuant to the statute." He also in that opinion 



272 SUPBEMB COUBT. 

Barbee vs. Plank R. Co. — Opinion of Court 

considered the further question, whether the "subscription 
paper/^ which had been signed by the defendant, amounted 
to an express promise and determined that it did not and 
that the action could not be maintained. But it is proper 
to remark that upon reference to the subscription paper, 
referred to in that case, it will be found to contain no prom- 
ise or agreement to pay, it is simply an agreement to take 
so many shares of stock, and to become proprietors in the 
said corporation. We desire to be understood as express- 
ing no opinion in regard to either of the propositions deci- 
ded in that case, as they do not necessarily arise, nor is the 
determination of either of them essential to the decision of 
this cause. It will be time enough when a case shall be 
presented to us in which the questions do arise, to decide 
whether an action may be sustained by a corporation upon 
an implied promise, whether the mere agreement to sub- 
scl-ibe for shares of stock, as evidenced by the subscription 
book or in any other manner, shall be taken to raise an impli- 
ed promise. Until such case shall arise, we desire to leave 
the questions open for more mature consideration. Much 
may be said on both sides, and especially where reference 
is had to the particular phraseology of the several sections 
contained in the charter of this corporation. In the first 
section of the act, the usual power to sue in their corporate 
name is expressly granted to the company. By the first 
clause of the sixth section, the corporation is authorized to 
"call for and demand from the stockholders respectively, 
the full amount of the shares of stock by them respectively 
subscribed, &c." Here the right to "demand*' is expressly 
given, and we are to give the term its legal signification, 
viz: a peremptory requisition, as contra distinguished from 



TEEM AT JACKSONVILLB, 1855. 273 , 

Barbee vs. Plank R. Co. — Opinion of Court. 

I mere request which might or might not be responded to 
>y the stockholder at his option. If this be a right, it 
^ould seem to result as a necessary consequence, that the 
iommon law remedy to enforce the right, that is by action, 
s also grants. But as before intimated, we leave the 
juestion open, as not being involved in the consideration of 
his case. 

It certainly cannot be said that the actual forfeiture of 
he stock, would in any manner effect the realization of the 
mounts due for the assessments, and even a sale of the 
ame, would but in very few cases ever produce that re- 
ult. 

In the case at bar the allegation is expressly made in the 
th, 7th, 8th, 9th and 10th counts of the declaration, that 
the said defendant made and executed a promise or agree- 
lent in writing, and delivered the same to the said plaintiff, 
y which he the said defendant undertook and promised to 
►ay to the treasurer of the said plaintiff, the amount of one 
housand dollars for the said ten shares of stock, in such 
imounts and at such time or times, as should or might be 
equired by the Directors of said Company.^' This being 
m express averment contained in the declaration, the de- 
nurrer is to be taken to admit the truth of the fact so al- 
eged and the authority cited, goes strongly to sustain the 
)laintiff's case. There were numerous authorities cited by 
;he coimsel for the plaintiff below, which all go to support 
;he position that, where there has been an express promise 
'o pay, the corporation may proceed by action for the re- 
covery of the assessments, and we have been able to dis- 
?over nothing in the authorities cited on the other side 
i^hich would even seem to contravene that doctrine. The 

19 



274 • SUPREME COURT. 



Barboe vs. Plank R. Co. — OplDion of Court. 



time allotted to tlio court does not admit of our going into 
an extended examination of the eases cited, nor indeed d) 
we deem it necessary for the purpose of this case, that ve 
should do so. It will suffice to allude to the leading cases 
as they are collected in Angell and Ames on corpora- 
tions. 

In the case of "The Worcester Turnpike Co. vs. ¥il- 
lard'' (5 Mass. R. 80) the court decided that the defendant 
having subscribed a contract by which he engaged to take 
one share, and to pay all legal assessments it was a personal 
engagement to pay assessments, which gave the corpora- 
tion, a cumulative remedy against Willard, in addition to the 
remedy provided by the statute to enforce the payment of 
the assessment by a sale of shares. In the case of "Taun- 
ton and South Boston Turnpike Co. vs. Wliiting" (10 Mass. 
E. 327) the case was where one subscribed an engagement 
to pay on demand to J. G. or order, "all assessments that 
may at any time be made by said corporation for the pur- 
pose of laying out said road, making and keeping the same 
in repair, and for damages to individuals for land &c".— 
It was holden agreeably to the above case of Worcester 
Turnpike Co. vs. Willard, that the defendant having ex- 
pressly promised to pay all assessments, he was liable, in 
an action of assumpsit, brought by the corporation for the 
assessments. 

Angell and Ames in their work on corporations (495 4 
8,) lay down the doctrine on this subject very broadly, thus; 
"If a person has incurred a liability to be sued upon a sub- 
scription as upon a promise, according to the rules we 
have laid down (though a penalty be given by statute for 
non-payment,) he is still liable in an action of assumpsit 



TERM AT TALLAHASSEE, 1855. 275 



Barbee vs. PlaDk R. Co. — Opinion of Court. 



le penalty of forfeiture is cumulative." In the case of 
e Delaware and Schuylkill Navigation Co. vs. Lawrence 
nny (Term) R 70 the subscribers to the stock signed an 
reement to pay two hundred dollars for each share, as 
e same should be called for; and the act of incorporation 
flicted a penalty of five per cent, per month, upon de- 
ulters, and directed that when the penalty should amount 

the sums paid in, the shares should be forfeited. There 
ing an express promise to pay, the court held that the com- 
,ny might waive the forfeiture and proceed personally 
>on the promise. In the case of Goshen Turnpike Co. 
. Hurtin, (9 John's E., 217,) the question was made 
lether the remedy given to the company by the statute, 

exact the penalty of a forfeiture of the shares and of all 
evious payments, was not the only remedy; and the 
urt expressly decided that it was not. Vide also Angell 
id Ames on Corporations note 2. In the case of "Grays 
. Turnpike Co." (4 Rand. R., 578,) this question came 
) for discussion in the Court of Appeals of Virginia. The 
lestion depended upon the sixth section of the general Tum- 
ke law, which enacted that, "if a stockholder shall fail 

pay the sum required of him, the President and Directors 
ay sell his stock at auction, and retaining tlie sum due, 
ly the overplus to the owner. But if the sale shall not 
•oduce the sum required to be advanced with the inci- 
jntal charges, then the president and directors may recov- 

the balance of the stockholder, by motion and ten day's 
)tice." The stockholders failing to pay the requisitions, 
le stock was advertised but not sold for want of bidders; 
id the question was, whether they were liable to a recov- 
y by motion for the amount of the requisitions. — There 



276 SUPREME COUET. 



Barbee vs. Plank R. Co. — Opinion of Court. 

were other questions in the ease, but this was considered by 
Judge Carr, who gave the opinion of the court, as the most 
difficult. He however, gave the following opinion in which 
all the other Judges concurred. "The power to sell the 
stock of delinquents was given to the company for their 
benefit. It was thought, no doubt, that this power would 
coerce the stockholders to punctuality in paying the calls; 
and if not, would secure to the company the speedy receipt 
of the money by sale of the stock. But in case this sale 
should not raise the whole sum, a motion is given for the 
balance. Now ought we to turn this power of sale, given 
for the safety of the company, to their ruin? If the stock 
had sold for a single cent, there can be no doubt, that this 
motion would have been sustained for the whole sum re- 
quired, even for more than is now required; for the sum 
given would not have paid the cost of sale, and the motion 
would have been for the sum required with the addition of 
such costs." There is a degree of sound practical common 
sense in the foregoing views which commends them to our 
cordial approbation. Indeed in this age of enterprise, 
when all public improvements are accomplished by associa- 
ate efforts, it is of the highest importance, that those who 
thus associate, should be held to the observance of the most 
perfect good faith, by compelling them to carry out the 
agreement into which they may have entered by becom- 
ing members of such association. Otherwise, no man 
would have any guaranty as an inducement for the con- 
tribution of his means to the advancement of any enter- 
prise of a public character. If it were the law that an in- 
dividual stockholder might retire from the corporation at 
any time and upon his mere whim and caprice, and thereby 



TEBM AT TALLAHASSEE, 1855. 277 

Barbee vs. Plank R. Co. — Opinion of Court 

incur no further injury than the mere forfeiture of his 
stock, it would give a blow to enterprises of this charac- 
ter, which would be destructive of the best interests of the 
public. Under sucli circumstances the most useful enter- 
prises might, at the whim of an individual, be arrested upon 
the very eve of successful consummation. A proposition 
which would lead to such results cannot be law, for we 
are taught that "law is the perfection of reason." 

Upon a review of all the authorities to which we have 
been able to refer, as well as upon principle, we hold the 
law to be, that when there is an express agreement on the 
part of the stockholder to pay for the shares of stock allot- 
ted him, upon default of such payment, he may be pro- 
ceeded against by action at the suit of the corporation, not- 
withstanding the charter may provide for the forfeiture or 
sale of the shares of delinquents. 

The fifth ground of objection is "that the said plaintiff 
has no where alleged in his said declaration that forty 
thousand dollars of stock had been subscribed for before 
said company went into operation, and further because 
the said plaintiff no where alleges that the other condi- 
tions precedent required by the said charter to be perform- 
ed before said company could be properly organized, have 
been performed." This objection was not particularly 
pressed at the argument, nor do we think that it is well 
taken. The declaration expressly avers the due organi- 
zation of the company, and this being admitted by the 
demurrer, we think is sufficient. 

The sixth objection is "that no proper cause of action 
has been filed by the said plaintiff in the said cause." The 
statute provides that "all bonds, notes, bills of exchange. 



278 SUPREME COURT. 



Barbee vs. Plank R. Co. — OpinioD of Court. 

covenants and accounts upon which suits may be brought, 
or a copy thereof, shall be filed with the declaration. But 
it has been heretofore decided by this court, that the fail- 
ure to file the cause of action, cannot be taken advantage 
of by demurrer to the declaration. Vide McKay vs. Lane 
5th Florida, R. 268. And in the case of Watterman vs. Mat- 
tair (5th Flor. R. 211) this court held, that this provision 
of the statute is directory only, and if the defendant wants 
a bill of particulars, he must lay his rule upon the plain- 
tiff, before plea to the action, to file one. 

The seventh exception is, "that the said plaintiff does 
not state in said declaration, by whom the subscriptions 
were received." This exception was not noticed in the 
argument and we presume was abandoned by the coun- 
sel. We do not think that it was a fact necessary to be 
stated in the declaration. 

Upon a careful review of the whole case we are of 
opinion that there is no error in the judgment of the Circuit 
Court, overruling the defendant's demurrer to the plaintiff's 
declaration. Therefore let the judgment be affirmed with 
costs. 



TERM AT JACKSONVIUjE, 1855. 279 

Ex-rarte Henderson. — Statement of Case. 

Charles Dibble, Plaintiff in Error, vs. the Jackson- 
ville AND Alligator Plank Road Company, 

Defendant in Error. 

Writ of Error to a Judgment of Duval County Circuit 
Court. 

McQueen Mcintosh for Plaintiff in Error. 

G. W, Call, Jr,, for Defendant in Error. 

DuPONT, J., 

This case is similar in all respects to the case of Joseph 
A. Barbee, (except that one instalment had been paid in, 
which makes it yet a stronger case,) decided at the present 
term, and will abide the decision in that case. 

Therefore let the judgment be affirmed with costs. 



Ex Parte Henry Henderson. 

1. Appeals may be taken from the Justice's Court to the Circuit Court and 
tried by the latter agreeably to the Constitution. 

2. The grant of one power by the Constitution is not necessarily exclusive of 
another power. 

3. The Circuit Courts are not confined wholly to cases of original Jurisdic- 
tion. 



280 SUPEEME COUBT. 



Ex-Parte Henderson. — Statement of Case. 

4. They have for the most part the power of the Court of King's Bench la 
England. 

5. A mandamus will He from this Court to the ClrcultCourt In case of refusal 
to entertain jurisdiction when directed by law. 

6. The jurisdiction of the Circuit Courts and Supreme Courts compared. 

7. The trial of an appeal case by the Circuit Court, Is rather the exercise of 
original than appellate jurisdiction, but whether original or appellate the 
exercise of the power is not in conflict with the Constitution of the State. 

This is an application for a mandamus to the Judge of the 
Circuit Court of the Eastern Circuit, for Putnam county, 
to hear and adjudicate an appeal taken from a Justice's 
Court to the Circuit Court. 

To the rule to show cause why a mandamus should not 
issue, Hon. W. A. Forward, Judge of the Eastern Circuit 
made the following answer: 

Ex Parte Henry Henderson, on motion for Bule to show 
cause why Mandamus should not issue. 



In obedience to rule issued in this cause, the Judge of 
the Circuit Court most respectfully shows cause as fol- 
lows, to wit: 

In the first act organizing the "Territory of Florida," 
Congress enacted, "That the Judicial Power shall be vest- 
ed in two Superior Courts, and in such Inferior Courts and 
Justices of the Peace, as the Legislative Council of the 
Territory may from time to time establish." 

The Legislative Council established County Courts and 
Courts of Justices of the Peace, with appeal from Justice's 
Courts to the County Courts. 

It was not, however, until the third amendment was made 
by Congress, to wit: on the 26th March, 1824, that it was 



TERM AT JACKSONVILLE, 1865. 281 

Bz-Parte Hendenon. — StatAnent of Caae. 

provided the Superior Courts "shall have and exercise 
appellate jurisdiction over the inferior courts of said 
Territory/' 

This organic act of Congress is to be regarded as the 
Constitution of the Territory, containing grants of power. 
See Ponder Executor vs. Graham, 4 Florida R, 23. 

After this power Was conferred npon the Superior Courts 
the Territorial Legislature passed the act under which it 
is now claimed, appeals lie to the Circuit Courts of this 
State, and is the act in queetion, and which act was in 
force at the time the State Constitution went into effect in 
1845. 

When passed it was a constitutional and binding law, 
and proper for the action of the Territorial Legislature. 

The question is whether on the organization under our 
State Constitution, it is in conflict with that Constitution. 

Upon our passing from a Territory to a State, our State 
Constitution differed from the powers conferred by acts of 
Congress in this, that it was a ^^restriction of power pri- 
marily possessed/' See Ponder vs. Graham. 

We framed our Constitution immediatelv in succession 
of Arkansas, and from the Constitution of that State we 
seem to have drawn largely. Yet it will be seen that their 
Constitution expressly provides, that "the Circuit Courts 
shall exercise a superintending control over the County 
Courts and over Justices of the peace." See collection of 
American Constitutions. Upon examining the State Con- 
stitutions, it will be found that in every State where Cir- 
cuit Courts have appellate jurisdiction it is expressly con- 
ferred. 



282 SUPREME COURT. 



Ex-rarte Ilenderson. — Statement of Case. 

By the Constitution of the State of Florida, the "judicial 
power" of this State is vested in a Supreme Court, Courts 
of Chancery, Circuit Courts and Justices of the Peace, and 
the General Assembly may vest criminal jurisdiction, (not 
capital,) in Corporation Courts. 

The second section of the fifth article says: "The Su- 
preme Court, except in cases otherwise directed in this 
Constitution, shall have appellate jurisdiction only, which 
shall be coextensive with the State, under such restric- 
tions and regulations not repugnant to this Constitution, 
as may from time to time be prescribed by law, provided, 
that the said Court shall always have power to issue writs 
of injunction, mandamus, quo warranto, habeas corpus, 
and such other remedial and original writs as may be ne- 
cessary to give it a general superintendence and control of 
all other Courts. 

The Supreme Court of Florida, in ex parte White, 4 vol., 
page 165, in giving construction to the above second sec- 
tion, held that the jurisdiction of that Court was two-fold; 
first, appellate jurisdicticm ; proper, and secondly, a general 
superintendence and control of all other courts; and this 
by means of all appropriate, original and remedial writs 
known to the common law. 

Again, they say, the "exception'' in the first clause -of 
the section points to the power contained in the proviso, and 
this power the court would not have had from the mere 
grant of "appellate jurisdiction only." 

And again they say: "It places this court, with regard 
to all other courts of this State in the same position, in this 
respect which the court of King's Bench in England oc- 
cupies, in relation to the Inferior Courts of that kingdom. — 



TEEM AT JACKSONVILLE, 1855. 283 



Ex-Parte Henderson. — Statement of Case. 

It gives a Buperintending authority and control, the pow- 
er to overlook and to govern, check and restrain all other 
courts." 

It would seem then, that the Supreme Court have all the 
jurisdiction necessary. 

Let us see what has been vested in this respect in the 
Circuit Courts. 

The sixth section provides, that "the Circuit Courts shall 
have original jurisdiction in all matters civil and criminal, 
within this State not otherwise excepted in this Constitu- 
tion. 

Here then is a "restriction of power primarily possessed," 
so far as appellate jurisdiction is concerned, and which was 
conferred on the Superior Court. 

No appellate jurisdiction in the Circuit Courts can be 
found in the said sixth section of the Constitution. And of 
the original jurisdiction thereof, there does not seem a 
doubt but that remedial and original writs necessary for a 
general superintendence and control of all other courts, (ex- 
cepting Courts of Ordinary in the ninth section) are "ex- 
cepted" in the second section and given to the Supreme 
Court. 

And this appears to have been the intention of the fram- 
ers of the Constitution, for they have not limited the Circuit 
Courts in original jurisdiction to any amount or proper sub- 
ject. 

Persons are not compelled to sue in Justice's Courts, but 
if from convenience or expedition in collection; they do re- 
sort to that tribunal, then appeal goes to the Supreme 
Court, as from the Circuit Court to the Supreme Court. 



284 SUPBEME COUBT. 



Ex-Parte Henderson. — Statement of Case. 

It is contended that there is no express prohibition against 
the vesting appellate jurisdiction in Circuit Courts. If 
this is a good argument, then it can be invested in Probate 
Courts or any courts created for that purpose. The an- 
swer to such a proposition presents itself, by enquiring 
from whence the Circuit Court derives its power? It does 
not derive it from the Legislature. It can only exercise 
such powers as the Constitution itself confers, or authorizes 
the Legislature to grant. It can derive no power else- 
where. 

In the language of the Supreme Court of Ohio, in Kent, 
et al. vs. Mahaffy, et ah, 2 Ohio B., 498, which is a case 
arising under an act of the Legislature of that State, at- 
tempting to confer original jurisdiction on the Supreme 
Court, by authorizing it to grant an injunction in a case 
pending in another court, and which by parity of reason- 
ing, is like the case now under consideration, that court says: 
^^It follows that to negative the existence of a power, it 
is not necessary to show that it is forbidden by the Con- 
stitution. It is sufficient that that instrument neither di- 
rectly nor indirectly confers it. Now as before said, the 
only original jurisdiction granted to us by the Constitution, 
is that above mentioned, and the only jurisdiction that the 
Legislature is authorized to confer upon us as a court, is 
appellate jurisdiction. See Constitution of Ohio, adopted 
in 1851, and Kent, et al., vs. Mahaffy, et al.,* above cited. 

The tenth clause of the fifth article of the Constitution is 
in these words: — 

"A competent number of Justices of the Peace shall be from 
time to time, appointed or elected in and for each county. 



TEEM AT JACKSONVILLE, 1855. 286 

Ex-Parte Henderson. — Statement of Case. 

Lch mode and for such term of office as the General 
ably may direct and shall possess such jurisdiction 
all be prescribed by law. And in cases tried before 
368 of the Peace, the right of appeal shall be secured 
• such rules and regulations as may be prescribed by 

w then it will be seen that no tribunal is specified to 
I this appeal is "secured/^ The natural inference to 
il mind is that it is to be to the court having appellate 
liction. 

t it is contended that the tribunal is left open as one of 
regulations^^ to be prescribed by law. 
may be that fixing a tribunal which shall have the 
liction of such cases in the face of the provisions ol 
econd section, which gives to the Supreme Court, "a 
al superintendence and control of all other courts," 
3 of the "regulations" spoken of, but we in our humble 
nent cannot so view it. 

at the right of appeal is "secured" by the Constitu- 
there is no doubt, but we think it is to the Supreme 
t, which has all the appellate jurisdiction, and not to 
!ircuit Court, which has only original jurisdiction, 
appellate jurisdiction can be conferred on the Circuit 
t from one tribunal it can be from all, and there is no 
ing in the Constitution where it authorizes the Su- 
e Court to issue such remedial and original writs as 
be necessary to give it a general superintendence and 
ol of all other Courts. 

e framers of the Constitution intended that appellate 
s and courts of original jurisdiction should be separ- 



286 SUPREME COUBT. 

Ex-Parte HeDderson. — Opinion of Court. 

ate and distinct, and for that purpose provided for the cre- 
ating of a separate Supreme Court. 

Under the Territorial system "which has been acted up- 
on as we think illegally, since the State organization, a 
man with a $50 debt, may sue in the Justices Court, ha¥e 
a jury trial there, and if disatisfied appeal to the Circuit 
Court, have another jury trial, and then if disatisfied ap- 
peal to the Supreme Court, while an individual with a 
$5000 debt, cannot have but one jury trial. 

If the constitution intended such a distinction, it is with- 
out a parallel in this republic. 

Then, in our opinion, the Supreme Court is a constitu- 
tional tribunal, and clothed with exclusive appellate juris- 
diction. 

It is a universal rule of construction, that the grant of a 
principal power, ipso facto, includes all minor, subsidiary 
powers incidental to the exercise of the main power. 

The Legislature possesses no power either by acts of 
commission or omission, to alter or destroy the separate 
and independent constitutional jurisdiction of our respec- 
tive courts. Then by omitting to act as well as by acting 
in an unwarrantable manner, they should not be permitted 
to defeat the main object and design of the constitution, 
which is to establish and administer an impartial system 
of public justice, for the maintenance and protection of 
personal rights and private property. 

G. W. Call, Jr., for the motion. 

BALTZELL, C. J., delivered the opinion of the court. 

This is an application for a mandamus to the Judge of the 
Circuit Court of the Eastern Circuit to hear and adjudicate 
an appeal taken from a Justice of the Peace of Putnam 
county. 



TERM AT JACKSONVILLE, 1855. 287 

Ex-Parte Henderson. — Opinion of Court. 

The Constitution of the State provides that "in eases 
tried before a justice of the peace, the riglit of appeal shall 
be secured under such rules and regulations as may be 
prescribed by law." "Art. 5, section 10th. 

The first Legislature provided that "tlie Circuit 
Courts respectively shall have and exercise the original 
and appellate jurisdiction conferred by the Constitution of 
this State and all original and appellate jurisdiction had 
by the Superior Courts or the several districts of the Ter- 
ritory of Florida, and of the County Courts of the several 
counties of the Territory, under the laws of the Territory 
not inconsistent with the Constitution and laws of the State." 
Laws 1845 Thorap. 54. 

Amongst the laws passed by the first Territorial Tjcgis- 
lature in 1822 we find an appeal given to the Circuit 
Court, on all judgments over ten dollars, and it was to be 
tried as [soon as] an original cmtse open to all legal testi- 
mony, "p. 92. In 1823 and *24, the Circuit Court was 
directed to hear and determine appeals from justices in a 
summary way without pleading in writing, according to 
the justice of the case, p. 244. In 1832 the Superior 
Courts were directed to trv such cases anew on their merits 
and without requiring written pleading. Thomp. 364. 

And so the laws have continued to the present day. 

It is contended now that the Circuit Court cannot adju- 
dicate these cases, having no power to do so under the 
Constitution of the State but that this duty belongs to and 
should be performed by the Supreme Court. 

It is very obvious that the Constitution designed some 
of the tribunal created by it to discharge this function. 
It seems to have been an object of such consideration 



290 SUPREME COURT. 



Ex-Parte Ilondcrson. — Opinion of Court. 



course establislied by the common law, by writ of certio- 
rari, and judgments of the inferior courts not of record, by 
writ of false judgment." 4 Arch. prac. 4. 

So in Xew York "it is well settled that on a return to 
a common law certiorari no other questions can be raised 
than those relating to the jurisdiction of the court or officei 
before whom the proceedings are had, and that decisions 
as to the admission or rejection of evidence or instruc- 
tions to a jury on submitting the case to their considera- 
tion, cannot be reviewed by certiorari, the policy of the law in 
creating these summary jurisdictions being, that their de- 
cisions on the merits shall be final and conclusive, and 
that if they err upon questions either of law or fact, the 
parties are without remedy." 1 Graham's Prac. 377. 

"This writ, the certiorari, is to restrain the return of all 
inferior magistrates, within their legal grasp. If they go 
wrong, upon the evidence, it is the misfortune of the par- 
ties. 17 Wendell 6G8. "So a certiorari was refused be- 
cause it was founded not, on a want of jurisdiction, but 
on the merits." Nichols vs. Williams 8 Cow. 13. 
Key vs. White, ad. 2. Denio 540. The People vs. Vermilyea 
7 Cow. 108." 

In very recent cases says the author above quoted 
"the Supreme Court of New York has wholly denied their 
power to re-examine on certiorari, the decisions of inferior 
jurisdictions on questions of fact, or on the legality of their 
decisions within their jurisdictions, or that their tribunals 
are to state facts in their return at all, except such as res- 
pects their jurisdictions." 

1 Graham 378, Starr vs. Trustees of Rochester, 6 Wend., 
564, 17, ib. 64. 2 Hill 9—398. 



TERM AT JACKSONVILLE, 1855. 291 



Ex-Parte Henderson. — Opinion of Court. 



The appeal then given by the constitution is a proceed- 
ing unknown to the English Statutes and common law, 
hence the rules of distinction of a teclinical character un- 
der those laws are inapplicable to it. It is the statutory 
regulation existing under the Territorial Government that 
the framers of the constitution had in view and intended 
to secure in making the special laws under consideration, 
and we have already seen that in these statutes the case is 
treated as an original cause "to be tried anew," otherwise 
the clause has no operation and will be of no avail. Con- 
sidered in this light, we feel no difficulty in regarding the 
constitution as having allusion to these statutes and design- 
ing their continuance, and in holding the case to be of ori- 
ginal jurisdiction. 

In this connection we think proper to remark that the 
Circuit Courts of the State perform the office and discharge 
the functions of the Court of King^s Bench of England, and 
not the Supreme Court of the State. This latter is the 
court of last resort, and has its analogy in the Supreme 
court of the United States and the Courts of Appeals of 
the States. Its action is original in the very few cases 
stated by the constitution, and that rather in aid of its ap- 
pellate jurisdiction; its appropriate office is to revise and 
correct the action of the Inferior courts. Tlie circuit court 
partakes in a degree of these powers, as we shall see by 
reference to the jurisdiction of the courts of King's Bench 
"Its jurisdiction is very bright and transcendent. It keeps 
all inferior jurisdictions within the bounds of their au- 
thority, &c. It superintends all civil corporations in the 
kingdom. It commands magistrates and others to do what 
their duty requires, in every case where there is no other 



292 SUPREME COURT. 



Ex-Parte Henderson. — Opinion of Coart. 

special remedy. It protects the liberty of the citizens by 
speedy and summary interposition." 3 Black, commenta- 
ries, 42. 

In case of trial before the circuit court, the party, if dis- 
satisfied and the sum be sufficient, may take his appeal to the 
supreme courts but the case is tried there not anew as before 
the circuit court, but upon errors shown to the court, in the 
record, by a bill of exceptions, and this constitutes the exer- 
cise of appellate power in a common law case, to which 
the Supreme Court is confined in its adjudication of such 
cases. But if this court were competent both by the con- 
stitution and laws, and could empannel a jury to try such 
cases, it is very obvious they could not by possibility dis- 
charge the duty. Tlie court is holden once a year in four 
districts, in one county of each district. What then could 
become of appeals taken in other district counties? Is it 
not obvious that the right would be in name merely, and of 
little or no value? Xot so with the circuit courts, organi- 
zed to transact civil and criminal business in every coun- 

ft. 

ty in the State, whose performance of this duty for so many 
years past with such entire satisfaction to the public, is 
tlie best evidence that the power has been rightfully and 
properly confided. 

It* the power were actually appellate, we do not per- 
ceive the objection to its being confided to the circuit 
court. What objection can there exist to the exercise of 
this power by both courts? Xone that we can preceive. 
It certainly increases the chances of right and tends to 
the advancement of justice without injury to any. 

Of the exercise of this power by the circuit court, it 
may be remembered, as was well expressed in argument 



TEBM AT JACKSONVILLE, 1855. 293 



Ex-Parte Henderson. — Opinion of Court. 

that the term "only" used in the clause conferring the jur- 
isdiction on the Supreme Court, is omitted in the clause 
conferring the Jurisdiction on the Circuit Courts. Now 
why this omission unless there was a design and a disposi- 
tion to restrict, not to confine the jurisdiction as in the case 
of the other court? We are not disposed, however, to rely 
upon this view, strong and potent as it may be. The ob- 
jection is, that there is no express grant of the power. Of 
objections of a like character to the constitution of the Uni- 
ted States, the Supreme Court say "the constitution una- 
voidably deals in general language. It did not suit the 
purposes of the people in framing this great charter of our 
liberties to provide for a minute specification of its powers, 
or to declare the means by which these powers should be 
carried into execution. It was foreseen that it would be 
perilous and difficult, if not an impracticable task. The in- 
strument was not intended to provide merely for the exi- 
gencies of a few years, but was to endure for a lapse of 
ages, the events of which were locked up in the incontro- 
vertible purposes of providence. It could not be foreseen what 
new changes and modifications of power might be indis- 
pensable to effectuate the general object of the charter and re- 
strictions and specifications, which at the present might seem 
salutary, might in the end prove the overthrow of the sys- 
tem itself. Hence its powers are expressed in general terms, 
leaving for the Legislature from time to time, to adopt its own 
means to effectuate legitimate objects and to mould and model 
the exercise of its powers, as its own wisdom and the public 
interests should require. Hunter vs. Martin, 1 Wh., 304, 
326, 327. 

Again, in another opinion of the same enlightened tri- 



294 SUPREME COURT. 



Ez-Parte Headerson.T— Opinion of Coart. 

bunal, on another occasion, we have an extension of the 
same enlarged views: "A constitution which should con- 
tain an accurate detail of all the minute subdivisiona of 
whicli its great powers will admit, and of all the means by 
which they may be carried into execution, and of the vari- 
ous subjects of jurisdiction of which its courts may respec- 
tively take cognizance, would partake of the prolixity of a 
legal code and could scarcely be embraced by the human 
mind. Its nature, therefore, requires that only its great 
outlines should be marked, its important objects designa- 
ted, and the minor ingredients which compose these objects 
be deduced from the nature of the objects themselves/' — 
McCulloch vs. State of Maryland 4, Wh., 407. 

Again: "Had the faculties of man been competent to 
the framing of a system of government, which would leave 
nothing to implication, it cannot' be doubted that the effort 
would have been made by the framers of our constitution. 
The fact, however, is otherwise. There is not in the whole 
of that admirable instrument, a grant of power which does 
not draw after it others not expressed, not vital to their ex- 
ercise, not substantive and independent indeed, but auxili- 
ary and subordinate. There is no phrase in it which ex- 
cludes incidental and implied powers, and which requires 
that every thing granted shall be expressfy and minutely 
described." Anderson vs. Dunn, 6 Wh., 204. Story, Com. 
Con., 418. 

Again: "It is said that tlie very distinction taken in the 
constitution between original and appellate jurisdiction, 
pre-supposes tliat wlien the one can be exercised the other 
cannot. The exercise of appellate jurisdiction is far from 
being limited by the terms of the constitution to the Su- 



TERM AT JACKSONVILLE, 1855. 29, 



Ex-Parto HendorHon. — Opinion of Court. 

■ .■■■■■I ■■-■ ^ I . Illy ■!■ ^^^M^^^M^^— I ■ 

preme court. Tliere can be no doubt that conc:rops may 
create a succession of inferior tribunals, in each of whicli it 
may vest appellate as well as original jurisdiction. This 
results from the very nature of the judicial power in tlie 
constitution. There is nothing in the instrument which 
restrains or limits the power, and it consequently must sub- 
sist in the utmost latitude of which it is in its nature sus- 
ceptible. 1 Wh., 337, 9, ib. 820, 6 ib. 392. 

Again: "It is admitted that affirmative words arc often 
in their operation, negative of other objects than those af- 
firmed ; and that where a negative or exclusive sense must 
be given to them, or they have no operation at all, they must 
have that negative or exclusive sense. But where they 
have full operation without it; where it would destroy some 
of the most important objects for which the power was 
created, then we think affirmative words ought not to be 
construed negatively."' 6 Wh., 395. 

Again: "It has been suggested that an affirmative pro- 
vision, in a particular case, excludes the existence of the 
like provision in every other case, and a negative provision 
in a particular case, admits the existence of the same thing 
in every other case. Both of these deductions are or may 
be confounded in solid reasoning. Thus it was objected to 
the constitution, that having provided for the trial by jury 
in criminal cases, there was an implied exclusion in civil 
cases, as if there was not an essential difference between 
silence and abolition — between a positive adoption of it in 
every class of cases, and a discretionary right to adopt or 
reject it in all or any other cases. One might, with just as 
much propriety, hold that because congress has power to 
declare war, but no power is expressly given to make peace. 



296 SUPREME COURT. 



Ez-Parte Henderson. — Opinion of Court. 

the latter is excluded ; or that because it is declared that no 
bill of attainder or expost facto law shall be declared by 
congress, therefore, congress possesses, in all other cases 
thcf right to pass any laws. The truth is, that in order to 
ascertain how an affirmative or negative provision excludes 
or multiplies others, we must look to the nature of the pro- 
vision — the subject matter — objects and scope of the in- 
strument; these and these only can properly determine the 
rule of construction.*' 6 Wheaton, 395. Federalist, No. 
83. 

Again: "The truth is that where the words confer only 
appellate jurisdiction, original jurisdiction is most clearly 
not given; but where the words admit of appellate jurisdic- 
tion, the power to take cognizance of the suit originally, 
does not necessarily negative the power to decide upon it 
on appeal, if it may originate in a different court." 9 
Wheaton, 820, 21. 

We have extended these quotations to some length, that 
a clear and just view of these exalted instruments may be 
fixed in the mind and the importance of their observation 
be fully felt. They are not directly to the point, as in some 
respects there is not an equal similitude iu the provisions 
of the constitution of the United States and of our State. 
Their application will yet be at once perceived. 

Indeed where could there be an appeal for information on 
this interesting subject, but to the works and writings of 
those great men to whom, above all others, we are indebted 
for the blessings of the liberty we enjoy; who framed and 
constructed the fabric of our Government upon a basis that 
we trust is perpetual, and to whom we turn in difficulty 
as to the great luminary, which sheds light and heat upon 



TERM AT JACKSONVILLE, 1855. 297 



Ex- Parte Henderson. — Opinion of Court. 

the world. We are instructed by them of the high nature 
and important character of these instruments, that they are 
not to be construed in a narrow and restricted light; that 
the absence of a particular power or its silence, does not ne- 
cessarily exclude legislation on the subject; that to do this 
there must be inconsistency, contrariety, opposition, restric- 
tion or prohibition, or that the power has been already exe- 
cuted. In the bill of rights attached to our constitution, it 
is declared "that to guard against transgression upon the 
rights of the people, we declare that everything in this ar- 
ticle is excepted out of the general powers of government, 
and shall forever remain inviolate, and that all laws con- 
trary thereto, or the following provisions, shall be void." 
Art. 1st, declaration rights 27 sec. constitution. 

We do not perceive repugnancy or contrariety in the ex- 
ercise of this jurisdiction by the Circuit Court, nor injury, nor 
inconvenience. On the contrary, we think great detriment 
and injury would arise to tlie public from the contrary 
course. To hold that even the Circuit Court has no appel- 
late jurisdiction, no superintendence or control over other 
courts, corporations and officers, would be to strip it of 
most important functions and render it powerless and inef- 
ficient in a great degree, for many of the high purposes of 
justice. With such action, the symmetry of the organiza- 
tion of the courts is preserved ; without it, disorder and con- 
fusion intervene. Especially so far as the present case is 
concerned, we have the experience of age — time has con- 
secrated and improved it — fixed it in the affections of the 
people and to them the loss would be irreparable. We per- 
ceive this in the fact, that of the very many cases which 
have been taken to each term of the Circuit and Superior 



298 SUPEEME COURT. 



Ex-Parte Henderson — Opinion of Court. 

Court for thirty years past, scarcely half a dozen of them 
have found their way to the Court of Appeals or the Su- 
preme Court. Another fact of no light consideration, no 
attempt at any time has been made to amend, alter or im- 
prove the law. Were it a matter of doubt then under this 
state of facts, we should feel extreme reluctance to overthrow 
the practice or declare its unconstitutionality. If the sums are 
inconsiderable, we see no reason for denying to the man of 
small means the right of adjudication and trial of his case 
by the Superior tribunals, equally with his neighbor, who 
has a case of larger amount. 

We have given due consideration to the case cited from 
Ohio of Kint vs. Mahaffy, 2 Ohio Reps., 498, but find in 
it no conflict with the positions we have assumed. It de- 
cides that the Supreme Court of that State will not issue a 
writ of injunction to the Court of Common Pleas of the 
State, as this would be the exercise of original jurisdiction. 
To this we have no objection; it is in effect the same as 
the decision made by this court in ex parte White, 4, Flori- 
ida, 170. 

It is claimed that the case of Ponder vs. Graham, sup- 
ports the position of the Circuit Judge, as it holds "that a 
State Constitution is a restriction of power primarily pos- 
sessed/' 4 Florida, 33. 

The question in that case was as to the validity of an 
act of the Territorial Legislature, with which the Constitu- 
tion of the State adopted thirteen years afterwards, had no 
connection. If the meaning is that restriction is the char- 
acteristic of State Constitutions, we are not prepared to ad- 
mit it. The great powers of government are given sub- 
ject to such restraints only, as the experience and wisdom 



TERM AT JACKSONVILLE, 1855. 299 



Anderson vs. Brown. — Statement of Case. 

of ages have proved to be needful to the protection of the 
citizen, and such further restrictions upon the agents of the 
constitution, the associate departments of Government, as 
will secure the proper working of the machine, and pre- 
vent its efficiency from being impaired or destroyed. 

We conclude tlien that wlietlier the jurisdiction to be ex- 
ercised in the case be original or appellate, the circuit 
court has the power and should exercise it. But inasmuch 
as we do not question that the court below would at once 
accede to the views of this court in this respect, we shall 
direct the opinion to be certified and withhold the writ. 



Henby Anderson, Appellant vs. James B. Brown, Ap- 
pellee. 

1. The act of 1845 (Thompson's Digest 50-51) which restricts the jurisdiction 
of th6 Supreme Court to the entertainment of "causes brought by appeal or 
writ of Error from the several Circuit Courts, when the matter In controver- 
sy exceeds in amount or value fifty dollars" is compatible with the provisions 

of the constitution^and that court Is not authorized to take or exercise jurisdic- 
tion of a cause In which the matter In controversy is below that limit. 
The case of Curry vs. Marvin (2 Florida Reports 411) referred to and ap- 
proved. 

2. The several acts of the General Assembly granting an appeal from the judg- 
ment of a Justice of the Peace,to the Circuit Court (Thomp. Dig. 54, par- 




300 SUPREME COURT. 

_ ■■■■■■ ^^^m^ ■ 1 .III ■ I ■ ■ I — ^— ^^^^^^^^ ■^^■^ 

Anderson vs. Brown — Opinion of Court. 

7, and 364, Sec. 1.) do not contravene any provision of the Constlta* 
tlon and are Imperative upon the Court 
S. Where the Judge of a Circuit Court shall refuse to entertain jurisdiction of 
an appeal taken from a Justice's Court, a writ of Mandamus, issuing from 
the Supreme Court,is the appropriate process to compel the exercise of that 
jurisdiction. 

Appeal from a judgment of the Circuit Court for Put- 
nam County. For a statement of the facts of the case, 
reference is made to the opinion of the court. 

G. W, Call, Jr., for appellant. 
B. M. Pearson, for appellee. 

DuPoNT J. 

The record in this cause presents the following state of 
case. Tlie appellant commenced his suit before a Jus- 
tice of the Peace in the County of Putnam, and upon the 
trial, judgment was rendered for the defendant, for the 
costs of the suit, which amounted to the sum of three dol- 
lars and twenty-five cents. From that judgment the plain- 
tiff prosecuted an appeal to the Circuit Court of the said 
county. At the Fall Term of tlie said court, the appeal 
was, upon motion, dismissed, upon the ground that the Cir- 
cuit Court had no jurisdiction of the cause. From the 
judgment of tlie Circuit Court dismissing the appeal, the 
appeal to this court is taken, and the preliminary question 
presented for our determination is, whether this court, in 
view of the restriction imposed by Statute upon its juris- 
diction, can entertain the appeal. 

This court has already decided in the case of Curry vs. 
Marvin (2 Florida E. 411) that the Act of 1845, which res- 
tricts the jurisdiction of the Supreme Court to the enter- 
tainment of "causes brought by appeal or writ of Error 



TERM AT JACKSONVILLE, 1855. 301 



Anderson vs. Brown. — Opinion of Court. 



from the several circuit courts, when the matter in 
controversy exceeds in amount or value, fifty dollars," 
(Thomp. Dig. 50 and 51) is compatible with the 
provisions of the constitution, and that it will 
not take or exercise jurisdiction, where the a- 
mount in controversv is below that limit. The decision 
in that case being an authoritative adjudication of the 
question, and receiving as it does our entire approbation, 
it only remains for us to order the appeal to be dismissed 
for want of jurisdiction. 

It was argued however, that unless the Supreme Court 
shall entertain the appeal, the party appellant will be 
without any remedy, inasmuch as the Circuit Court has 
also declined to take cognizance of the case, on the 
ground of a want of jurisdiction; and that thus he will 
be deprived of the right of appeal which is guaranteed 
to him by virtue of the 10th Section of the 5th Article of 
the Constitution, (Vide Thomp. Dig. 62.) 

Such consequence will not necessarily result from our 
action in this case, as may be readily perceived by refer- 
ence to the opinion delivered upon the decision of the case 
of Ex parte Henderson, decided at the present term of this 
court. 

That decision was made upon a rule nisi directed to the 
Judge of the circuit court, calling upon him to show cause 
w^hy a Mandamus sliould not issue, requiring him to enter- 
tain jurisdiction of an appeal taken from a Justice's court. 
In that case the court held that tlie act of the general As- 
sembly confering such appellate jurisdiction upon the cir- 
cuit courts, does not contravene any provision of the con- 
stitution and is imperative upon those courts, and that the 



302 SUPREME COURT. 

Otoway V8. Devall. — Opinion of Court. 

writ of Mandamus, is the appropriate process to compel 
the exercise of that jurisdiction. 

Let the appeal be dismissed with costs. 



William B. Otoway, Appellant, vs. James 0. Devaj^l, Ap- 
pellee. 

l.The Supreme Court has no authority to entertain an appeal from a Judgment 
rendered in a Justice's Court. 

DuPCNT, J. 

This is an appeal from a judgment rendered in a Jus- 
tice's court, for the sum of forty-six dollars and eighteen 
cents. 

The question of jurisdiction, which was adjudicated in 
the case of Henderson vs. Brown, decided at the present 
term of tliis court, is the only one that can arise in this 
case, and is authoritatively settled by that adjudica- 
tion. 

In that case it was decided that the restriction imposed 
by the statute, prohibits the Supreme court from taking 
or exercising jurisdiction of causes, in which the matter in 
controversy does not exceed the amount or value of fifty 
dollars. 



TERM AT JACKSONVILLE, 1855. 303 



Halliday vs. Plank R. Co. — Opinion of Court. 

In addition to the views set forth in the opinion deliver- 
ed in that ease, it may be further remarked, that even if the 
restriction did not exist, this court could not, in the present 
state of the law, entertain an appeal from a Justice's Court, 
for there is no statute providing for the taking or prosecu- 
ting of such, to the Supreme Court. The constitution, it is 
true, secures to a party in a Justice's Court, the right of 
appeal, and the General Assembly have amply, provided 
for the exercise of that right, by giving the party an appeal 
to the Circuit Court. 

Let the appeal be dismissed with costs. 



Seymour Halliday vs. the Jacksonville and Alligator 

Plank Road Company. 

1. The Supreme Court has authority to entertain an Appeal, 
coming up directly from a Justice's Court. 

DuPONT, J. 

This is an appeal taken from the judgment of the Circuit 
Court, held in and for the county of Duval. 

The decision made in the case of Henderson vs. Brown, 
determined at the present term, and the views contained 



304 SUPREME COURT. 



Halllday vs. Plank R. Co. — Opinion of Court. 



in the opinion therein delivered, are decisive in regard to 
this case. This court will not entertain jurisdiction of a 
cause coming up by appeal, directly from a Justice's 
Court. 

Let the appeal be dismissed \nth costs. 



Seymour Halliday, Appellant, vs. the Jacksonville axd 
Alligator Plank Road Company, Appellee. 

1. Under the latitude given In the proviso, to the second section of 
the fifth article of the Constitution, the Supreme Court has no authority 
to Issue writs of certiorari, to any of the Inferior jurisdictions; 
but to obtain its action upon the same, It must be clearly shown, 
that the case presented is such a one as requires the interposi- 
tion of the court. In order that justice may be done. 

Certiorari to a Justice's Court. 

Felix Livingston^ for Appellant. 

0. W. Call, Jr., for Appellee. 

DuPONT, J. 

This cause is brought up from a Justice's Court, by 
writ of certiorari; and the question presented for our con- 
sideration is, whether this court will entertain jurisdiction 
of the same. 



TERM AT JACKSONVILLE, 1855. 305 

Halllday vs. Plank R. Co. — Opinion of Court 

The second section of the fifth article of the Constitution 
provides that "the Supreme Court, except in cases other- 
wise directed in this Constitution, shall have appellate ju- 
risdiction only, which shall be coextensive with the State, 
under such restrictions and regulations, not repugnant to 
this Constitution, as may from time to time be prescribed 
by law; provided that the said court shall always have 
power to issue writs of injunction, mandamus, quo warran- 
to, habeas corpus, and such other remedial and original 
writs, as may be necessary to give it a general superin- 
tendance, and control of all other courts." 

It is not doubted, but that under the latitude given by 
the said proviso, a writ of certiorari will lie from this court 
to any of the inferior jurisdictions, whenever an appropri- 
ate case may be presented, or it shall become necessary 
for the attainment of justice. This, however, is not such 
a case; the object of the plaintiff in certiorari, in removing 
his case to this court, is to have certain errors, which are 
alleged to have been committed by the Justice of the 
Peace who decided the case, corrected here. It is a suffi- 
cient answer to his application to say, that the statutes 
have provided an ample remedy for him, by granting to him 
an appeal to, or writ of certiorari from the Circuit Court. — 
Vide Thomp. Dig., 364. 

Let the certiorari be dismissed with costs. 
21 



306 SUPREME COURT. 

Frances, a Slave, vs. State. — Statement of Case. 

r - m , _ » — -^ 

~- ,^^^ 

Frances, a Slave, Appellant vs. the State. 

1. During the trial of any case not capital, the Court may, in tlx-^ 
exercise of a sound discretion, permit the Jury, under the p rope^ 
charge, to separate. 

2. The Indictment of a Slave need not state the name of the own^ 
of such Slave. 

S. A Slave indicted for an assault and battery, not alleged to hav 
been committed upon a white person, should be tried under th 
6th Sec. of the Act of November, 21st, 1828, entitled "An A 
relating to crimes and misdemeanors committed by Slaves, 
Negroes and Mulattoes." 

4. When the record contains a copy of the indictment endorsed b^ 
the Foreman of the Grand Jury, A True BUI, and a plea of no 
guilty has been put In, a trial had, a verdict of guilty found, an< 
motion for an arrest of Judgment made and argued, without 
objection that it does not appear by the record that the Gran(3 
Jury returned the Bill into Court endorsed by the Foreman, "A. 
True Bill,'*' the objection cannot be made in the Supreme Court 

on appeal In a case not capital. 

5. When no exception is taken to the charge of the Court below. In 

a criminal case like this, and a motion was made for an arrest of . 
Judgment and for a new trial, without alleging It as a gromid 
for such motion there, is too late to make the objection in th« 
Supreme Court. 

Appeal from Putnam Circuit Court. [The reporter has 
not been furnished with a copy of the record, from which 
to extract the evidence given in to the jury, and must, 
therefore, refer to the opinion as furnishing all the facts he 
is enabled to give.] 



TEEM AT JACKSONVILLE, 1855. 307 



Frances, a Slave v«. State. — Opinion of Court. 



McQueen Mcintosh, for Appellant. 

G. IV. Call, Jr., for Attorney General, for the State. 

DOL^GLAS, J., delivered the opinion of the court. 

At the fall term of the Circuit Court for Putnam county, 
in the vear A. D. 1853, the Grand Jurv who were then 
and there empannelled and sworn to enquire in and for 
eaid county, found and returned into court an Indictment, 
endorsed hy the foreman, "A true bill," against Francis a 
slave. She plead not guilty. At the Spring Term A. D. 
1854, the case came on for trial, a jury was empannelled 
and sworn who returned a verdict of guilty against her. 

WTiereupon her counsel moved an arrest of judg- 
ment and for a new trial upon the following grounds. 

First, That the verdict was contrary to evidence. 

Second. That the verdict was contrary to law. 

Third. Because the State has failed to allege in the 
indictment with sufficient certaintv, that Frances is a 
slave or free person of color, and does not allege that she 
is the property of any person. 

Fourth. That the prisoner is not subject to indictment 
under the act of 1832, but should he punished before a 
Justice of the Peace under the act of 1828. 

Fifth. That the prisoner is not subject to indictment un- 
der the last clause of the act of 1828, inasmuch as the 
indictment no where alleges that the assault was commit- 
ted upon a white person. Wliich motion was after argu- 
ment overruled, and a judgment was entered, from which 
the prisoner has appealed to this court, and puts in the 
following assignment of errors, viz. 

First. That the court below erred in allowing a 
portion of the jury to disperse before completing the pan- 



308 SUPREME COURT. 



Frances, a Slave vs. State. — Opinion of Court. 



el, without the consent, and against the remonstrance of 
the prisoner by counsel. 

Second, That the court below erred in refusing to arrest 
the judgment and grant a new trial upon the grounds set 
forth in the motion. These having been already stated, it 
is unnecessary to repeat them. 

Third, That the court below erred in failing to arrest 
the judgment, because of errors and omissions on the face 
of the record. 

Fourth, That tlie court erred in its cliarge to the 
jury. 

Fifth. That the indictment is defective in substance. 

The first error assigned (we think) is not well taken. It 
has been the practice in Florida ever since the organiza- 
tion of our late Territorial Government, a period of more 
than thirty years, to permit jurors in all cases of misde- 
meanors, and indeed in all cases not capital, to disperse 
imder the charge of the Court, when it adjourned for the 
niglit &c, unless there was some special reason for keeping 
them together, and it is now too late for the Courts to dis- 
turb that practice. In capital cases they have in favorem 
vitae, very properly been kept together. In Virginia, 
however, it has been held that "where several days 
are taken up in completing the panel, on a trial for mur- 
der, it is not necessary that the Jurors who have been 
sworn, shall be committed to the custody of the Sheriff 
until the whole number of the panel is completed." 
5 Gratten I?. 676, U. S. Dig. vol. 4, p. 290 No. 
18. The dispersion in the case at Bar was before the 
panel was completed. 

The following authorities were cited by the prisoner's 



TERM AT JACKSONVILLE, 1855. 309 



Frances, a Slave vs. State. — Opinion of Court. 



counsel in support of the position we are now consid- 
ering, viz: 3 Blackstone, p. 379, Note. 2 Barn, and Aid. 
p. 462. 8 S. and M., cited in U. S. Dig. 1847, p. 329.— 
U. S. Dig. 1848, p. 240, No. 540—41, 5 Georgia Rep. 85 
and 10, Georgia Rep. 511. Stone's case, in the note to 
Blackstone, was treason, a capital offense. The case cited, 
from TJ. S. Dig. 1848, have very little bearing upon the 
question; that from 5 Georgia is a capital case. That 
from 10 Georgia was a case of larceny. Pending the trial, 
the court was about to adjourn for the night, the presid- 
ing Judge enquired what should be done with the Jury. 
To which the defendant's counsel replied that they were 
willing the Jury should disperse, and they were permitted 
to do so. Afterwards this dispersion was assigned by the 
prisoner's counsel as a cause for a new trial upon a mo- 
tion made therefor, after a verdict of guilty, but the court 
overruled the motion, saying, no application should be 
addressed bv the court to counsel to allow the Jurv to 
disperse. It is odious to refuse, and calculated to preju- 
dice the party with the Jury, who withholds his consent. 
It is a discretion says the court which should be very cau- 
tiously exercised under any circumstances. We are una- 
ble to determine from the manner in which the case from 
S. and M. is cited, whether it was a capital case or not. 
And the case in Bam. and Aid. seems rather against the 
position. That is the case of the King vs. Herrin, Wolf and 
Levi who were indicted for a conspiracy, a mere misdemea- 
nor. The Jury in that case as in this, were permitted to sep- 
arate for the night, and a motion was made for a new tri- 
al grounded on the suggestion of two facts; first, that the 
Jury dispersed before the verdict was given, and secondly. 



310 SUPKEME COURT. 

1 

Frances, a Slave vs. State. — Opinion of Court. 

that, that circumstance was not known to the parties until 
after the trial was concluded. The Judges delivered their 
opinions seitaiim. Abbot Ch. J. said, '^ I am of opinion, that 
in a case of misdemeanor, the dispersion of the jury will 
not avoid the verdict. I found my opinion upon the fact^ 
that manv instances have occured of late vears in which»- 
such dispersion has been permitted in the case of a misde- 
meanor; and every such instance proves that it may b^ 
lawfullv done." 

" It is said, indeed, that these instances have taken plac^ 
by consent. The consent of the defendant (he said) eai». 
make no difference, and ought not to be asked." Bayley^^ 
Justice, said : " If the case were one where the propriety of 
the verdict admitted of a doubt, it would be very proper 
for the court, as an additional reason for granting a new 
trial, that the jury had so separated. But I am of opinioa 
that that circumstance standing alone, is not sufficient to 
vacate the verdict," Halroyd, J., said : " I do not find any au- 
thority in the law which states that the mere separation of 
the jury in a civil action, or in the case of a misdemeanor, 
is a ground for vacating the verdict." Best, J., observed, 
*^ It is said there has been a mistrial on account of the sep- 
aration of the jury, but I am alarmed at the extent to which 
that proposition would go. I agree with my brother, Bay- 
ley, that no sound distinction can be taken between a sepa- 
ration for a shorter or a longer time. The true rule, (he said) 
is, that it is left to the discretion of the Judge to say wheth- 
er the jury are to be permitted to separate or not, and this 
we consider the true rule;" and it is fully sustained by the 
case of Davis vs. the State, 15 Ohio Reps., as cited in U. S. 
Dig. 1847, p. 320, No. 59; and it cannot, says that court, 



TERM AT JACKSONVILLE, 1855. 311 

Frances, a Slave vs. State. — Opinion of Court. 

be questioned on error. We agree with that court that 
this discretion shoukl be cautiously exercised, and espe- 
cially in cases highly penal, and when much excitement 
prevails. 

In order to dispose of the second error assigned, we re- 
turn to the grounds of the motion in arrest of judgment, 
&c., in the court below, which are made the grounds of 
this assignment, and we observe that the two first were 
abandoned at the argument here. The third is, that the in- 
dictment does not state the name of the owner of Frances. 
This we deem wholly unnecessary. The State to sus- 
tain the indictment must prove the ownership; every slave 
knows or can readily ascertain who is his owner, and there- 
fore can prepare his defence, so far as that is concerned, 
without being told that fact. In regard to the fourth and 
fifth grounds alleged in arrest, &c., it is to be observed 
that this indictment is founded upon the sixty-first section 
of the act of November Ist, 1828, entitled " an act relating 
to crimes and misdemeanors committed by slaves, free 
negroes and mulattoes," (Duval Comp., 228; Thomp. Dig., p. 
541, No. 20,) which declares, " that if any negro or mulat- 
to, bond or free, shall commit any other crimes or misde- 
meanors against the laws of this State, it shall be lawful 
for the jury convicting him of the same, to punish him by 
any number of stripes, as they may award, not exceeding 
one hundred." Assault and battery is an offence, a mis- 
demeanor against the laws of this State; it is a common 
law offence, and the common law is in force here by a 
special provision of our statute. Thomp. Dig., p. 21, No. 
2. It is one of the other misdemeanors against the laws 
of this State, in regard to which (except by these general 



«■» 



11 SUP15KMK COURT. 



Brnncli vs. Rranoh. — Statomont of Case. 



vantage of liere, wore it erroneous, but having looked mtc^» 
it, we do not discover it to Ik* so. 

In misdemeanors, the strictness which formerly prevail 

ed, has l)een much relaxed in England, (as appears by th p=» 
case above cited from Barn, and Aid. 462, and many mor^= 
might 1)0 adduced,) as well as in this country, and to poin F=^ 
extent in all cases not capital ; and it does not appear tha^l 
any injury has resulted therefrom. 

PVom a careful review of this case, we find no error iczin 
the judgment of the Circuit Court, and it is therefore af" — 
firmed. 



William D. Branxii, Appellant, vs. Littleberry Braxch, 

Appellee. 

1. Applications to set aside proceedings for mere Irregularity, shoolf 
be made as early as possible. 

2. If the style of process is "The State of Florida," It Is sm 
cient. 

3. Upon the death of the testator or intestate, if any Injury Is af 
wards done to his goods an^ chattels, tb« executor or admi 



TERM AT JACKSONVILLE. 1855. 316 

Branch tb. Branch. — Statement of Case. 

trator may bring an action for damages for the tort, and under the 
circumstances, he has his option either to sue in his representa- 
tive capacity, and declare as Executor or Administrator, or to 
bring the action in his own name, and in his individual charac- 
ter. 

4. When such a suit is brought by an Executor or Administrator, in 
his individual character, it is not necessary that there should be a 
bond binding the estate. 

5. Whether such a bond is necessary where an Executor or Ad- 
ministrator sues in such a case, in his representative character a« 

Executor or Administrator. Qtieref 

6. In a suit by an Executor or Administrator, in his repre- 
sentative character, he must describe himself and make his 
claim as Administrator or Executor only; describing himself Ex- 
ecutor or Administrator is mere dcscriptio personae. 

7. The statute declares that the plaintiff in replevin, or some other 
competent person in his behalf, shall execute the bond with good 
and sufficient security ; it is not contemplated by the latter pro- 
vision that the persons signing the bond shall bind any body but 
themselves. 

8. Whether, therefore, an Executor or Administrator can, even in 
such an action as this, by proceeding as such Executor or Ad- 
ministrator, and executing a bond as such, bind the Estate — 
QuereT 

0. It is not necessary that the bond, in an action of re- 
plevin, should contain a description of the property, but the affida- 
vit must describe it 



316 SUPREME COURT. 

Branch vs. Branch. — Statement of Case. 

10. The value of the property as stated in the declaration, la not the 
criterion of the value of the property; it is the estimated Talne 
(by the Clerk, whose duty it Is to prove the bond,) at the time 
the bond is given, and the plaintiff, by stating in his declaration i 
higher value, cannot Invalidate the bond. 

11. If the Clerk In approving the bond add to his name the word 
Clerk only. It Is sutBcient If the other proceedings which occurred 
at the same time as the making of the affidavit, or the issuing of 
the writ, show of what Court he was Clerk, and that it la the same 
Into which the writ is returnable. 

12. Statutory bonds will. In general, be sustained as voluntary bondi, 
good at common law, although they may not be taken pursuant to 
the statute, unless the statute has expressly declared them void, or 
they have been obtained by fraud, or by coercion or oppersloo, 
colore officii. 

13. The Court may ord^r a plurlea writ. In an action of replevin un- 
der our statute, or the plaintiff may (In a proper case) cause one to 
bo issued without an order of the Court. 

14. By suing out an alias writ, the plaintiff waives (for the time be- 
ing, at least,) his ritrht under the statute to declare in trover or 
trespass. 

Appeal from a jiul^icnt of the Circuit Court for Marion 
county. For the facts of the case, see opinion of the 
court. 

McQueen Mcintosh and B, M. Pearson, for appellant 
J. P, Sanderson^ for appellee. 



TERM AT JACKSONVILLE, 1856. 317 

Branch ts. Branch. — Opinion of Coort. 

DOUGLAS, J., delivered the opinion of the court. 

William D. Branch instituted an action of replevin in 
the Circuit Court of Marion County to recover a certain 
stock of cattle. He states in his affidavit that " he is Ad- 
ministrator of the Estate of Samuel E. Swilley, deceased, 
and that as such Administrator, he is lawfully entitled to 
the possession of a certain stock of cattle now in possession 
of Littleberry Branch, numbering about eighteen hundred,*^ 
describing them and saying further "that the said cattle 
have not been taken for any tax assessment, or fine levied 
by virtue of any law of this State, or seized under any ex- 
ecution or attachment against the goods and chattels of 
this deponent, liable to execution." He also executed a bond 
in the penal sum of twenty thousand dollars to the said Lit- 
tleberry Branch, with J. M. Mcintosh and A. D. Johnson 
as his sureties, conditioned "that whereas the above boun- 
den Wm. D. Branch hath this day commenced an action of 
replevin against Littleberry Branch for tlie recovery of cer- 
tain cattle, more particularly described in an affidavit filed 
herewith. Now if the said W. D. Branch shall prosecute 
the said action to effect and without delay, and if the said 
Littleberry Branch should recover judgment against him in 
said action, shall return the said cattle, if return thereby 
should be adjudged, and shall pay the said Littleberry 
Branch all such sums of monev as he mav recover against 
him in the said action, for any cause whatsoever, then the 
above obligation is to be null and void, othenvise, to l)e 
in full force and virtue.'' This bond was approved by the 
Clerk of said Court, the said affidavit and bond were filed 
in the office of the Clerk of the same Court, on the 20th of 
October, 1862, and both of them as well as the writ of re- 



318 SUPREME COURT. 



Branch vs.. Branch. — Opinion of Court. 

plevin, (which it seems immediately issued,) bear date 
on the same day. The sheriff not having been able to ex- 
ecute tliis writ, an alias was issued, which also proving in- 
effectual, a pluries was issued which he returned "execu- 
ted this writ by having hunted up and delivered to Wil- 
liam D. Branch, Administrator, &c., six hundred and thir- 
ty-eight (638) head of cattle, of the marks and brands de- 
scribed in the within writ." It appears by the proceedings, 
that a summons was issued and duly served on the Ist. day 
of November, 1852. • 

The plaintiff filed his declaration December 1st., 1853, in 
the usual form, describing himself William D. Branch 
plaintiff in. this suit. Administrator, &c., &c., and conclu- 
ded by saying, wherefore the said plaintiff Administrator 
as aforesaid, saith that he is injured, and hath sustained 
damage to the amount of twenty thousand dollars and 
therefore, &c., &c. 

The next entry upon the record was made on the 7th of 
December, 1853, and is as follows, to wit: "Now on this 
day came the parties, by their respective Attorneys, and 
this cause coming on to be heard, the defendants counsel 
moved the court to quash the writ and declaration for a 
variance between the precipe, writ and declaration; and, 
also, moved the court to dismiss the suit for want of a suf- 
ficent affidavit and bond, and because a pluries writ had 
been issued in said cause before declaration filed; where- 
upon the court having heard the argument of counsel, and 
having considered the matter, overrules the motion to quash 
said writ and declaration, but sustains the defendant's 
motion to dismiss said suit for want of a sufficient affidavit 
and bond, and therefore, it is ordered by the court that the 



TEKM AT JACKSOXVILLE, 1855. 319 

Branch vs. Branch. — Opinion of Court. 

said suit he and the same is hero]\y dismissed. Whereupon 
tlie plaintiff, hy his counsel, prayed an appeal in open 
court and on the same day. It appears hy a subsequent or- 
der, that a hond having heen duly executed and filed by 
the plaintiff according to law, and the costs paid, the court 
ordered " that the said ])rayer for an appeal he (and the same 
was thereby) allo-wed and granted.'* On the same day a 
writ of return and restituticm of the cattle was ordered by 
the court, and a jury was empanelled and sworn to assess 
the damages that the defendant had sustained, by the 
wrongful taking and detention of said cattle, and who found 
that the defendant had sustained no damage, &c., &c., 
which verdict was, on the 10th. day of the same month, 
set aside, and a nf»w assessment of damages awarded. 

On the 6th. dav of December 1854, the defendant, bv his 

* ■ 

counsel, J. P. Sanderson and S. St. Geo. Rogers, presented 
to the Marion Circuit Court, the mandate of this court in 
this case, and moved to vacate the judgment heretofore en- 
tered in this cause, which was done accordingly, and 
thereupon came the parties, by their respective attorneys, 
and a jury was enij)anened to assess the said damages, 
who assessed the same at two hundred and seventv-five 
dollars, upon which verdict judgment was duly entered, and 
a return of the cattle aforesaid was awarded ; and there- 
upon, the plaintiff again prayed an appeal to this court. 

At the December term, 1853, the defendant's counsel 
moved the court for leave to amend the record of this cause 
entered at the last spring term of this court, wherever said 
record shows that Rodgers, defendant's counsel, consented 
to the order therein entered, granting to plaintiff's counsel 
leave to issue a pluries writ, and further time for filing of 



380 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 

a declaration. "The court having read the affidavit of S. 
St. Geo. Rodgers, defendant's counsel, and reference to the 
Bench Docket of said term having been had, and upon ar- 
gument of counsel, it was ordered that said record be a- 
mended by vacating so much of said order, made at said 
Spring Term of this Court, as shows such order made at 
said Spring Term of this court for a pluries writ, and fur- 
ther time for filing a declaration, to have been made by 
consent of S. St. Geo. Rogers, as defendant's counsel. 

Two bills of exception appear in the record, but as they 
were not noticed in the argument of the case, we do not 
deem it necessary further to advert to them. Ten errors 
were assigned, all however, but the first two and and the last, 
were abandoned at the hearing. The three relied upon 
are as follows : 

First. That the court erred in entertaining the motion 
to dismiss the proceedings, and quash the said writ of re- 
plevin at the third term after the commencement of said 
suit, an appearance having been heretofore by the said 
defendant, entered at a previous court, io wit: at the 
first term to which the same defendant was summoned. 

Second. That the court erred in deciding that tlie bond 
and affidavit filed in the above entitled cause, were insuffi- 
cient, even not in conformity to law, and thereby dismissing 
the proceedings in the same, and quashing the writ of re- 
plevin. 

Tenth. That the court erred in allowing defendant's 
motion to amend the record in said case. 

The case has been ably and ingeniously argued on both 
sides. It is contended on behalf of the appellant, that the 
proceedings are regular and correct throughout; that the 



TERM AT JACKSONVILLE, 1855. 321 



Branch vs. Branch. — Opinion of Court. 

suit was commenced by William D. Branch, against Lit- 
tleberrj' Branch, as appears by the precipe, affidavit and 
bond; that in the precipe, nothing is said of the plaintiff, 
designating him as administrator. That the affidavit states 
and sets out the grounds of his possessory right in the pre- 
mises, and is signed by him ; that William D. Branch, could 
not sue as administrator, but only in his own name. That 
he could not bind the estate (of Samuel E. Swilley,) by a 
bond, and must necessarily have proceeded as he did. That 
the bond is executed by him, in his individual capacity, and 
never was intended as an administrator's bond. That the 
recital in the affidavit, that the plaintiff was administrator, 
is merely "descriptio personae" and may be treated as 
surplussage; that the addition of administrator in the writ, 
cannot invalidate it, and that it was not necessary in the 
affidavit to state that the property sought to be replevied 
was not taken for any tax assessments, or fine levied by 
virtue of any law of this State, or seized under any execu- 
tion or attachment against the goods and chattels of the 
estate of Samuel E. Swilley, deceased; that the court erred 
in entertaining the motion to dismiss the proceedings, and 
quash the said writ of replevin at the third term after the 
commencement of the suit, also in deciding that the bond 
and affidavit were insufficient. 

For the appellee it is insisted that the suit was improp- 
erly commenced; that the precipe has no venue, that the 
affidavit does not conform to the requirements of the 
statute; that the jurat is defective; that the suit is at 
the instance of the administrator of the estate of Samuel 
E. Swilley, deceased, and that there is no bond given bind- 
ing the estate; that the bond is not entitled as belonging to 
22 



322 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 





any court, nor shown in what court the suit was instil 
ted. That the bond does not contain a description of tl 
property, and is not of double the value of the property, 
alleged in the declaration; that the bond is not approve* 
as required by the statute; that the writ should show thi 
the affidavit and bond had been filed; that the court di 
not err in quashing the writ; that the statute requii 
that all process shall run in the name of the State 
Florida; that this does not so run; that the court did n( 
err in allowing the correction of the record, and that it h 
no authority to grant a pluries writ. 

As to the alleged defect in the precipe, if such an o"" -^ib- 
jection could be heard at all, it comes too late. Applic -^dila- 
tions to set aside proceedings for mere irregularity, shoii ild 
be made as early as possible. 3 Chitty's General Pr., 5ir~ 11 
to 529. If not, it will be waived. 1 Tidd's Pr., 9, 16i^E35, 
190, 403, 435. So as to the affidavit, that the jurat is ilK le- 
fective, and as to the writ, that it does not run "in t —he 
name of the State of Florida." The appearance of the ^^3e- 
fendant was entered at the first term after the service of 

summons upon him, and no motion was made to qua -^A 
any of the proceedings for any cause, until the third 
Nor does it appear that any of these objections were tak- 
at all in the court below. As to the style of the process 
the Constitution, article fifth. Section fifteen, Thomp. Di^., 
p 325, No. 3, declares that the style of all process shall fte 
"the State of Florida.'' The style of this process is "the 
State of Florida." This we think sufficient. The Con- 
stitution of Iowa, requires criminal proceedings to be 
conducted in the name of the State of Iowa, and it has 
been there held, that a prosecution in the name of the "State 



TERM AT JACKSONVILLE, 1855. 323 

Branch vs. Branch. — Opinion of Court. 

of Iowa," was valid. Harrison vs. the State, 2 Green, 270, 
6 U. S. Dig., (1852,) p. 354, No. 62. 

Many of the objections taken by the plaintiff's counsel 
in this case, seem to be founded upon the idea, that this is 
a suit prosecuted by William D. Branch, (w administrator, 
Ac, of Samuel E. Swilley, deceased. That however, is 
a wrong view of the matter. He prosecutes it in his own 
individual character. It is true, that in his affidavit, he, in 
order to show his right to the possession of the cattle in 
controversy, says he is entitled to the possession of them, 
as administrator of Samuel E. Swilley, deceased, and in his 
declaration, he alleges that they belonged to, and were 
owned by Samuel E. Swilley, deceased, in his life time, 
and at the time of his death, "and that they were in pos- 
session of the said plaintiff, administrator as aforesaid, of 
Samuel E. Swilley, deceased," and in all the proceedings, 
except the affidavit, he either designates himself as William 
D. Branch, or as William D. Branch, administrator; the 
latter is mere descriptio persons. He had a right to sue in 
his individual capacity. Mr. Williams in his able work 
on Executors, vol. 1, page 627, (side,) says, upon the death 
of the testator or intestate, if an injury is afterwards done 
to his goods and chattels, the executor or administrator may 
bring an action for damages for the loss; and under the 
circumstances, he has his option either to sue in his repre- 
sentative capacity, and declare as executor or administra- 
tor, or to bring the action in his own name, and in his in- 
dividual character; and Carlisle vs. Beesley, 3 Greenleafs 
Reports, 257; Patcher vs. Wilson, 4 Hill, N. Y., 57-8 
B. Monroe's Reports, 521 ; Hollis, et al. Administrator, 
vs. Smith, 10 East. Reports, 293, and Ballane and 



324 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 

Wife, Administrator vs. Spencer, 7 terra Reports, 358, 
are all to the same effect. In Watson vs. Pilling, 2 Bro. & 
B., 446, it was held that on general process, the plaintiff 
may declare against the defendant, as executor or adminis- 
trator, and where the affidavit, (to hold to bail,) stated the 
debt to be due to the intended plaintiff as executor, but the 
process was general, the Court of Exchequer refused to 
order the said bond to be cancelled. Chittv's Plea Ed., 
1840, page 251. And see Duval vs. Craig, et al. 2, Whea- 
ton Reports, 545; 4 Peter^s Conds Reports, 29. 

In 2 Williams on Executor's, side pages 1150 and 
1151, it is said that the same declaration which contains 
counts on promises to the testator, may contain a count on 
an account stated with the plaintiff as executor, concern- 
ing money due to the testator from the defendant, or con- 
cerning money due to the plaintiff as executor, or a count 
for money lent by the plaintiff as executor, or a count 
for money had and received by the defendant to the 
use of the plaintiff as executor, or a count for money paid to 
the use of df't by the plaintiff as executor. So in a declara- 
tion in debt, a count on a judgment recovered by the plain- 
tiff as executor, may be joined with counts on debts which 
have accrued to the testator. But (he says) it must be 
stated in the count, that the duty accrued to the plain- 
tiff in his representative capacity of executor. It is not e- 
nough to say it accrued to him ^executor' or being ^execu- 
tor,' it must be averred that it accrued to him as executor. 
And in Needham vs. Croke, Freeman's Reports, 728, it is 
said: "if an executor states an account with a debtor, he 
may, if he pleaseth, afterwards sue in his own name for 
this debt, for the stating of the amount raiseth a new debt. 



TERM AT JACKSONVILLE, 1855. 325 



Branch vs. Branch. — Opinion of Court. 

he may sue as executor, as to naming themselves 
itors, it is only to deduce their rights ab origine; yet 
rtheless, the cause of action arises entirely in his time, 
since the death of the testator. And see 1 Salkeld, 207. 

is an answer to the allegation, that there is no bond 
I binding the estate. The suit being by William 
ranch, in his individual character, it is not necessary that 
t should be; indeed it does not seem to be necessary 
e the executor or administrator as such, brings a writ, 
plevin. The statute declares that the plaintiff, or some 
' competent person in his behalf, shall execute the bond 

good and sufficient security. It does not contemplate 
be latter provision that the persons signing the bond, 

bind any body but themselves. In Pinney vs. admin- 
tors of Johnson, 8 Wendell, 500, the court said: "It 
3 to be well settled upon authority, that a judgment 

a bond or other security, given by an administrator 
:ecutor, though in his representative character, does not 

the estate, that the discription of the defendants in the 

as executors, is surplussage, and they are chargeable 

such a bond and judgment in their own right; it is 
I legal debt or judgment against the estate, and cannot 
leaded as such. Citing Seyer vs. Smith, 1 Dall, 247 
)d. Keports, 225 ib. 254, Croke Eliz. 406, 9. Coke, 93, 
ass. 58, and 8 ib, 199, (where this doctrine is very ela- 
:ely discussed,) 1 M. and S., 395, 7 Taunton, 580 
8 Jolmson, 120. It seems very doubtful, therefore 
east,) whether even in such an action as this, if the 
llant had proceeded as. administrator, he could 

executed a bond that would have bound the es- 



326 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 

It is said further, that tlie bond does not contain a des- 
cription of the property. The Statute (see Thompson's Dig. 
388,) does not require that it should. It only requires that 
the affidavit should describe it. This it does. Again it is 
said that it is not in double the value of the property as 
alleged in the declaraiion. The Statute only requires "a 
bond with good and sufficient security in at least double 
the estimated value of the property to be replevied, condi- 
tioned &c. &c., to be approved by the clerk^* whose 
duty it is to see that a good bond is filed before he issues 
the writ. The estimated value of the property must there- 
fore be ascertained before the declaration is filed, and the 
plaintiff cannot afterwards, by putting a higher value 
upon it in his declaration, invalidate his bond, and ii 
would not be ver}' safe for the defendant if he could. It ii 
said again, that the jurat to the affidavit is defective, anc 
that the bond is not approved as required by the Statute 
This is because the officer who put his jurat to the affid? 
vit, and approved the bond, signed merely "Rol)ert Br 
lock Clerk," and it is urged that this does not show that 
was Clerk of Marion Circuit Court where the suit was 
stituted. But it appears from the record, that the affi 
vit was made, the bond executed, and the writ issued 
the same day, and in his test of the writ, lie describes \ 
self as Rol)ert Bullock Clerk of the Circuit Court for i' 
on Countv. And the affidavit and bond were both file 
the office of the clerk of that court on the same day 
tliev were made and executed, and it has not been allee 
pretended that there was or has been any other acti' 
replevin between these parties in that court. It 
seem therefore, that there could be no difficulty in 



TERM AT JACKSONVILLE, 1855. 327 



Branch vs. Branch. — Opinion of Court. 

iying all these proceedings as connected with each other 
in this suit, and it not being denied (or pretended here) 
that he was such clerk, (a matter of most easy ascertain- 
ment) we are clearly of opinion that the objection in regard 
to these matters (if in time) could not be sustained. In 
WTialing vs. Shaks, 20 Wendell 673, M. T. Eeynolds for 
blie defendant moved to set aside proceedings in replevin, 
>ii the ground that there was only one security to the bond 
to the sheriff, citing 2, R. S. 527, Sec. 7.— R. W. Peckham 
For the plaintiff insisted that the remedy was by exception, 
not by motion. By the court, Bronson J. The proceedings 
are irregular when there is only one security, (citing 18 Wen- 
dell, 581, and 19. ih, 632,) and it is going quite far enough to 
save the action, by allowing an amendment on payment of the 
costs of the motion. The proceedings must be set aside unless 
the plaintiff execute a sufficient bond nunc pro tunc and 
the securities justify. The case referred to in 19 Wendell 
632, is Howley against Bates. In that case no penalty was 
inserted in the bond; and it had but one security, and.. an 
amendment was allowed. In Newland vs. Willetts 1 
Bart 20, it was also held that " where a replevin bond 
originally given is defective, a new bond may be filed 
''nunc pro tunc." If this be sound law, and we are at a loss 
to see why it is not, then this suit should not have been 
dismissed for the insufficiency of the bond (had it been 
defective) if the plaintiff was ready and willing to give a 
new and sufficient one, 'nunc pro tunc," It may be very 
doubtful how far the non approval of the bond would 
affect its validity. In South Carolina it has been held that 
where a Statute requires the Sheriff to give bond to the 
Treasurer of the State, yet a bond to the Commissioners of 



328 SUPREME COUBT. 



Branch vs. Brancb. — Opinion of Court. 

the treasury was valid, and where the same Statute re- 
quires that Sheriff's bond should be approved by those 
Commissioners, before it should be accepted, and it was 
approved by two only, it was held that this neglect of the 
Sheriff could not be pleaded in bar of a suit against him 
for official mis-conduct. 2 McCord 107. And in King ys. 
Gibbs 26 Wendell, it was held that it dSes not lie with 
the defendant (in a suit on such a bond) to object that the 
security was not approved by the Commissioners, that, the 
waiver of approval was injurious to the plaintiff if any 
body, that benefit they had a right to waive quiUhet potest 
renunciare jiri pro se introducto" But it is not ne- 
cessary for us now to decide this point as we deem the ap- 
proval under the circumstances sufficient, especially as 
more than a year had elapsed after it was executed and 
filed, before any objection was made to the sufficienqy of 
the bond at all, and it does not appear that any objection 
was ever made to it on this ground until the present tenn 
of court. If therefore, the objection had it been taken in 
time, had been valid it now comes too lat«. It has been 
often held that if a Sheriff voluntarily gives bond with 
sureties in a larger penalty than is prescribed by the Stat- 
ute, they will be held liable for the breach of it. Stevens 
vs. Treasures 2 McCord 107, and U. S. Dig. p. 442, No. 
205, where Governor vs. Matchlock, 2 Hawks, 366. John- 
son vs. Gwathmy 2 Bibb, 186. Treasures vs. Bates, 2 
Baily 362, and Stevens vs. Treasures, 2, McCord 107, are 
cited. So, if a bond is given in a penalty less than the 
Statute prescribes. Grimes vs. Butler 1 Bibb 192. 1 XJ. S. 
Dig. p. 442, No. 206. It was also held by the court of ap- 
peals of Kentucky that where an execution was endorsed 



TERM AT JACKSONVILLE, 1855. 329 



Branch vs. Branch. — Opinion of Court. 

security of any kind to be taken" the oflBcer has 
authority to take a forthcoming bond, and if he 
J, it will not be valid as a statutory bond, although 
lay be good at common law as a protection to the oflB- 
7 B. Monroe's Reps. 289, 2 U. S. Dig. p. 59, No. 91. 
I in Virginia it was held that "though a bond be not 
i as a statutory bond, it may be good at common law. 
nson vs. Merriweather 3 Call 523. And in Maine it was 
I that a statutory bond to be good as such, must be 
iitioned and executed according to all the requirements 
;he statute. But if it was not, it may be good at com- 
1 law. Howard vs. Brown 8 Shepley 358, 2 Supp. U. 
Dig. 307 Nos. 34 and 35. And in New York, that a 
d is not void merely because it does not in all respects 
form to the statute under which it was taken. It is 
)lutely void only when the statute declares it void. 
1 Deusen vs. Hay ward 17 Wendell 67. King vs. Gibbs 
Wendell 502. These cases are sufficient to show that 
ii objections are not favored by the court. But the fol- 
ing are perhaps more conclusive. A replevin bond 
ing been forfeited, by reason of the suit in the superior 
rt not having been prosecuted with effect, it was held 
the case of Stomfield vs. Halloway, 11, Eng. Law and 
:y. Beps. 559, that the bond though irregular, was not 
1, and that the plaintiff might sue upon it as a voluntary 
d. And in Butler vs. O'Brien, 5 Ala. 310, it was held 
t "a bond giving as a forthcoming bond, though not 
d as a statute bond, it being payable to the sheriflE 
tead of the plaintiff, is good as a common law bond. 1 
S. Digest, p. 327, No. 481. And in Speake et al vs. U. 
.tes 9 Cranch 28, 3 Peters Cond. Reps. 248, the couri; 



330 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 

held that a bond taken by virtue of the embargo law of 
1808 is not void although not taken pursuant to the sta- 
tute; there being no allegation or pretence that the bond 
was unduly obtained, colo officii, by fraud, oppression, or 
circumvention, it must therefore be taken to have been a 
voluntary bond. And in spite of all the objections made 
against this bond, even if it were not good under the stat- 
ute, we believe it would be a good bond at common law, 
but we see no objection to it under the statute. 

It is well settled however, that bonds of this kind, will in 
general be sustained as voluntary bonds good at common 
law, unless the statute has expressly declared them 
void, or they have been obtained by fraud or by coercion 
or oppression colore officii. Nothing of this description has 
been alleged or pretended in regard to the bond under con- 
sideration. 

It was insisted that the court has no authority to grant a 
pluries writ, that there was no declaration filed and 
the cause stands dismissed bv the rules of the court, and 
Thompson's Digest p. 457, Sec. 6 and page 387, Sec. 3 
are cited to sustain the proposition. This objection is 
founded upon this provision of the statute above cited at 
p. 389, Sec. 3, of our replevin law viz: "If the goods and 
chattels specified in the writ of replevin be not delivered to 
the plaintiff, and the defendant shall have been duly sum- 
moned, the plaintiff may either sue out an alias writ, or pro- 
ceed by filing a declaration in trover or trespass, and there- 

m 

by abandon his action of replevin." The writ in this case 
was returned not executed &c., and the plaintiff caused 
an alias to be issued which was also ineffectual, and he 



TERM AT JACKSONVILLE, 1855. 331 

Branch vs. Branch. — Opinion of Court. 

caused a pluries to be issued which was executed. 
3 been urged that the court had no "authority to grant 
ries writ." We entertain no doubt but that the plain- 
light have caused such writ to be issued, without an 
of the court, and until this writ was returned exe- 
, he was not bound to file his declaration. This is a 
iial statute, and should be literally construed. In- 
as it is but an extension of an old common law reme- 
'e need not perhaps invoke that principle to sustain 
position. By suing out an alias writ the plaintiflE 
d (for the time being at least) his right to declare in 
: or trespass. Wliether if his pluries writ had also 
d ineffectual he could have fallen back upon that 
, as a last resource, is a question that may more pro- 
be decided whenever it shall be directly pre- 
i. 

on the whole, our view of this matter is, that the 
tiff had a right to declare in his representative 
cter as administrator, or in his own individual char- 
It seems that he adopted the latter course; that the 
vit and bond are substantially good, that whatever 
ilarity may have existed in them, are cured by the 
tions to them not having been taken in due time 
is as the books say, in the first instance; that therefore 
rst two errors assigned are not well taken, and con- 
ntly the last became immaterial. 

b the judgment and order of dismissal of the couri^ be- 
)e reversed with costs, and the case be remanded to 
court, and be there reinstated, that such proceedings 



•41 

■■'J 



: 332 SUPEEME COTJET. 

Burrett vs. Doggett. — Statement of Case. 

may be had therein, as to right and justice shall appertain, 
not inconsistent with this opinion. 



Samuel L. Burrett^ Appellant, vs. Maria Doggett, Ap- 
pellee. 

1. When in an action for use and occupation.tbe Iot,square,town and county 
where the premises are situated, are set out in the declaration ; Held, /^'» 
that this was a matter of discrlptlon and must be proved as laid ; Beco^t 
that it was unnecessary to have alleged any location of the premises ; T^^^ 
that if it had appeared to have been the intention of the plaintiff to bftvt 
made the averment of the place where the premises were situated, refer to 
the venue, or if it was doubtful, whether the design was to make the a^*^ 
ment matter of discrlptlon or matter of venue.it would be considered as ven* 
ue, in order to prevent a failure of recovery, because of the unnecessary aver- 
ment, but when there is no such doubt, the averment must be considered as 
matter of description and must be proved as laid. 

4. All averments In a declaration which need not be made, or proved wbeo 

made, may be stricken out or disregarded in the proof, except when tbey 

touch the Identity of that which is necessary to be proved. When they go to 

fix the identity, they become matters of description and must be proved as 

laid. 



TERM AT JACKSONVILLE, 1855. 333 



Barrett vs. Doggett — Opinion of Court 

Appeal from a judgment of Duval Cireuit Court. For 
the facts in the case, reference is made to the opinion of 
the court. 

McQueen Mcintosh, for Appellant. 

Philip Eraser and Felix Livingston, for Appellee. 

Hon. T. F. King, Judge of the Southern Circuit (who sat 
in this case in place of Douglas, J., disqualified,) delivered 
the opinion of the court. 

The appeal, in this case, is from a judgment rendered in 
the Circuit Court of Duval county, in which Maria Doggett 
was plaintiff and Samuel L. Burritt defendant. The dec- 
laration contains two counts, the first for use and occupa- 
tion, and the second for an account stated. The first al- 
leges the use and occupation, by the defendant, "of a cer- 
tain messuage, tenement and premises, situated on a cer- 
tain lot in the town of Jacksonville, in the county of Duval, 
State of Florida, and known on the plan of said town as 
lot number six, in square number one, with appurtenan- 
ces." Accompanying the declaration is an account with two 
items, the first charging indebtedness by the defendant to 
the plaintiff, for rent of house used as an office. May Ist, 
1847," and the second, "for rent of same from 1st May, 
1847, to 19th May, 1849." The pleas are the general issue 
and the statute of limitations. The facts, according to the 
statement agreed upon by the attorneys of the parties, are 
as follows: "that the amount of tlie rent rendered in the 
verdict, was proved to be due for rent of a house in the 
town of Jacksonville, but that the further description of 
lot number six, in square number one, in said town, was 
not proved, there being no evidence on that point." 

At the trial, the defendant's counsel asked for this in- 



336 SUPREME COTJBT. 



Burrett vs. Doggett. — Opinion of Court. 

verment would be considered as venue, in order to prevent a 
failure of recovery, merely because of the presence of un- 
necessary statements. There is nothing, however, to cre- 
ate the impression that such was the design. There is no 
doubt from the plain reading of the declaration, that the 
intention of the plaintiff was to specify the identical house, 
for the occupation of which she claimed rent. Xo clearer 
terms could have been used to express such a purpose. It is 
not only alleged that the premises were located in the county 
of Duval, and the town of Jacksonville, the only designation 
that can be construed as referring to the venue, but the 
very square and lot on which they were situated, are point- 
ed out. The object seems to have been to leave no room 
for doubt with the defendant, as to the house for which he 
was called upon to pay rent. 

We cannot, therefore, consider the averment of the loca- 
tion of the premises as referable to the venue, and the 
question next arises, was it necessary to have enabled the 
plaintiff to recover, for her to have proved the unnecessary 
allegation that the house was on the lot and square speci- 
fied in the declaration, or was the proof of any messuage 
whatever belonging to her, sufficient f 

A division of the averment contained in pleadings, is 
into matters of substance and matters of description, which 
require different degrees of evidence to sustain them. The 
former may be substantially proved, but the latter must be 
strictly proved, and in some cases with literal precision. 

Allegations fixing the identity of that which is legally es- 
sential to the claim, can never be rejected. 1 Greenleaf, Ev. 
p. 126. Purcell vs. Macnamara, 9 East, 160. This case, 
in East furnishes an example of matters of substance, and 



TERM AT JACKSONVILLE, 1855. 337 

Burrett ts. Doggett — Opinion of Court. 

the proof required for them. The defendant was sued in 
an action on the case for malicious prosecution. The plain- 
tiff alleged in his declaration that he was acquitted at a 
certain term of the court, when it appeared from the re- 
cord that he was acquitted at another term. The variance 
was held to be immaterial, because the time when the 
judgment was rendered, was not laid in the declaration as 
part of the description of the record of acquittal. A simi- 
lar case is that of Stoddard vs. Palmer, 3 Bam. and Cres. 2, 
where a Sheriff was sued for a false return to a fieri facias. 
The declaration stated that the judgment on which the writ 
issued, was rendered at one term, when the record showed 
a different term, and this was held no variance. In these 
cases, it was regarded as immaterial whether the judgment 
passed at the term mentioned in the declaration or not, be- 
cause the suit was not brought upon the judgment. The 
reference to the judgment was only inducement to the prin- 
ciple matter, which in the one case was the acquittal of 
the plaintiff before he commenced his action, and in the 
other, the false return. Therefore the statement of the 
term of which it was rendered was superfluous, and no 
proof was necessary. But if the judgment had been the 
subject matter of the suit, it would have become the prin- 
cipal matter, and must have been proved precisely as laid 
in the declaration. The statement of the time of its ren- 
dition, would then have been descriptive of the identity of 
that which it was essential for the plaintiff to prove, and if 
it had not been proved exactly as set out in the declara- 
tion, the variance would have been fatal. Another case 
illustrating the rule as to matters of substance, is that of 
23 



338 SUPREME COUET. 



Branch ts. Branch. — Opinion of Court. 

Bowless VS. Miller, 3 Taunt., 137, where an action waa 
brought for an injury to the plaintiflf^s residuary inter- 
est in land, and he alleged that the close, when injured, waa 
and "continually from thence hitherto, hath been and still 
is" in the possession of a third person. This latter part 
of the averment was held superfluous and not necessary to 
be proved. It might as well have been stricken out, for it 
did not affect the claim either by adding matter of sub- 
stance or description. 

Other cases in the books show the decree of proof re- 
quired in averments of descriptions. Cudlip vs. Bundle, 
Carth. 202, was an action by a lessor against his tenant 
for negligence, &c. A demise of seventy years was 
alleged, when the proof was of a tenancy at will. The 
variance was held to be fatal. It was requisite to have al- 
leged some tenancy, and one generally was sufficient, yet 
the plaintiff having unnecessarily identified it by describ- 
ing the precise term, he was bound to prove it as laid.— 
Another case is that of justification in taking cattle dam- 
age feasant. Dyer, 365, where the allegation of a gen- 
eral freehold title was sufficient, but the defendant with- 
out any necessity for it, alleged a seisin in fee, he 
was held to the proof of a seisin in fee because it 
was descriptive aud limiting that which it was necessary 
for him to aver and prove, to wit: a freehold title. In Sa- 
vage vs. Smith, 2 W. B., 1101, an officer was sued for ex- 
torting illegal fees on a fieri facias. Here it was required 
to allege only the issue of the writ, but the judgment on 
which it was founded, was also set out. The plaintiff was 



TEBM AT JACKSONVILLE, 1855. 339 

- ' 

Branch tb. Branch. — Opinion of Court. 

required to prove judgment as he had stated it , because 
it particularized the principal thing, the fieri faceas. 

The rule extracted from these and other cases in the au- 
thorities, upon the subject of variance, is that all aver- 
ments in a declaration, which need not be made or proved, 
when made, in order to entitle the plaintiff to recover, may 
be stricken out or disregarded in the proofs except 
when they touch the identity of that which is necessary to 
be proved. When they go to fix the identity, they become 
matters of description and must be proved precisely as 
laid. The object for which the rule is established is to effect 
the same purpose as a declaration, that is, to warn the de- 
fendant of the claim or charge which is sought to be made 
out against him, and to enable him to plead the judgment 
in bar of a second suit, for the same thing. We think the 
rule is sound and well calculated to effect the end of jus- 
tice. It looks to the same purpose with that intended by 
the rules of special pleading, which we have adopted, that 
is, to make the one party fully informed of the demand a- 
gainst him, and the other of the defence he is to meet, so that 
neither may be surprised or unarmed in the contest which 
is about to ensue. 

How does the rule bear on the case before us? The 
plaintiff alleges the use and occupation by the defendant 
of a "messuage, tenement and premises," but not stopping 
here, she makes the further unnecessary averment, that the 
messuage, &c., were situated on a particular lot and square 
in the town of Jacksonville, and county of Duval, thereby 
pointing out with as much precision as possible, the par- 
ticular messuage, for the use of which she sues. This aver- 
ment goes to fix the identity of that which was before aver- 



i 



340 SUPREME COURT. 



Branch vs. Branch. — Opinion of Court. 

red, and which it was necessary to aver and prove, to-wit: 
a messuage belonging to her, and thus it becomes matter 
of description and falls within the rule. The situation of the 
premises as described in the declaration should have been 
proved, or else the verdict should have been for the defen- 
dant. 

A bill of particulars could not have been required in 
this case, as the identity of the house, was already by the 
terms used in the count as apparent as any words could hare 
made it. But if the averment had been in the general 
terms used in such actions, "messuage and appurtenan- 
ces" only, and the defendant had called for a bill of partic- 
ulars, to which he would have been entitled, and the spe- 
cification of the property had been the same as in the 
body of this declaration, she could have no more recovered 
for the rent of another house, than she could have recov- 
ered for other goods, than those specified in the items of a 
bill of particulars, attached to a common count for goods 
sold. 

It is with much reluctance that we feel constrained to 
reverse the judgment in this cause. It is hard upon a plain- 
tiff to be defeated or delayed in collecting a claim, which 
from the evidence and the finding of a jury, appears to be 
just, on account of inadvertence arising probably from 
the hurry and excitement of a trial at nisi prius. But 
satisfied as we are, that the rule of evidence as we have 
laid it down, has been long established, and that a depar- 
ture from it, might prove injurious, by unsettling forms of 
pleading and rules of evidence well known and common- 
ly used, we cannot direct a sliorter course by which 
the plaintiff may obtain her claim than a new trial. 



TEEM AT JACKSONVILLEi 1855. . 341 

Branch vs. Branch. — Opinion of Court. 

Let the judgment be reversed and a new trial awarded 
and the cause remanded for further proceedings, not in- 
consistent with this opinion. 



Decisions 



OF THE 



Supreme Court of Florida, 



TA 



MARCH TERM, 1855, 
Held at Tampa. 



Benjamin Hagler, Appellant vs.John Mercer,Appellee. 

1. Where a plea is required to be vcrifled by an affidavit, the failure to ap* 
pend the affidavit, is not a ground of demurrer. The subject can be taken 
advantage of, only by motion to the court to set aside the plea, or to sign 
Judgment as for want of a plea. 

2. The twenty-fourth section of the act of November 23d, 1828, (Thomp. Dig., 
331,) is restricted to pleas alleging a icant of consideration, and does not ap* 
ply where the allegation Is a failure of consideration. 

3. And even where the want of consideration is pleaded, the only effect of that 
section is to change the burden of proof. The defendant may still plead t 



TEBM AT TAMPA, 1855. 343 



Haglcr vs. Mercer. — Opinion of Court. 

want of consideratlon.wltbout verifying his pica by an affidavit ; but in such 
case, he takes upon himself the onus prohandi, as he formerly did at common 
law. 

Appeal from a judgment of the Circuit Court, for Hilis- 
borough county. 

James Oettis, for appellant. 

J. B. Lancaster and Olover, for appellee. 

DuPONT, J. 

This was an action of assumpsit, brought in the Circuit 
Court of Hillsborough county, by the respondent against 
the plaintiff in error, upon a promissory note. The defen- 
dant below filed a plea, in which he alleges a total failure 
of consideration. To the plea there was a demurrer, and 
the special ground therein assigned was, that the plea was 
not put in on oath, as required by the statute. The demur- 
rer was sustained and judgment final was entered for the 
plaintiff. From this ruling of the court, the defendant ap- 
pealed, and the only point presented for our adjudication 
is in regard to the correctness of that ruling. 

The first question that arises upon the consideration of 
this demurrer is, whether the objection to the plea is such 
an one as may be reached by demurrer. 

There are some well founded objections to pleadings 
which cannot be the ground of demurrer; such are princi- 
pally the non-compliance with some rule of practice, not 
affecting the substance of the pleading. Thus in the Eng- 
lish courts, under the operation of the new rules, if the 
venue be repeated in the body of the declaration, the de- 
fendant cannot on that account demur, but if taken advan- 
tage of, it must be by motion to strike out the objectionable 
venue. So also an inaccuracy in the form of commencing 



344 SUPKEME COUBT. 



Hagler vs. Mercer. — Opinion of Court, 

a declaration, is not ground of demurrer. 1 Chitty's Plead- 
ing, 662. 

The point under consideration not unfrequently arises 
in the English courts, under the operation of the statute 
of 4 Ann., C, 16, S., 11, which provides that "no dila- 
tory plea shall be received in any court of record, unless 
the party offering such plea, do by affidavit prove the 
truth thereof," &c. In such case, if the party fail to sup- 
port his plea by affidavit, the invariable practice is, to 
treat the plea as a nullity and sign judgment, or to move 
the court to set it aside. 1 Chitty^s* Pleading, 462. As 
the demurrer admits the facts pleaded, and merely refers 
the question of their legal sufficiency to the decision of the 
court, we are very clearly of the opinion that the objection 
made to the plea, can be taken advantage of only hy mo- 
tion to strike out. This point was not noticed at the argu- 
ment, but as a matter of practice, we esteem it of sufficient 
importance to be settled. 

The next point arising in the case, and which indeed 
was the only one argued at the hearing, involves the con- 
struction to be given to the twenty-fourth section of the 
act of November 23d, 18?8, (Thomp. Dig., 331 Art.,1 Par. 4,) 
which provides that it shall not be necessary for the plain- 
tiff to prove the execution of any bond, note or other instru- 
ment of writing, purporting to have been signed by the de- 
fendant nor the consideration for which the same was giv- 
en, unless the same shall be denied by plea, put in and 
filed as aforesaid, that is, "put in on oath, and filed before 
the cause is called on the appearance docket." 

It is contended for the respondent, that under the opera- 
tion of this provision of the statute, the plea in this case, 



TEBM AT TAMPA, 1855. 345 



Hagler vs. Mercer. — Opinion of Court. 

alleging a failure of consideration, ought to have been 
verified by an affidavit, and that without such affidavit, 
it was wholly defective as a defence. This provision of 
the statute, has never, heretofore, received an authorita- 
tive adjudication, but upon a careful consideration of the 
subject, we have no hesitancy in deciding that the posi- 
tion urged, cannot be maintained. It will be perceived 
by reference to the phraseology of the section, that the re- 
quirement of the oath is confined to a plea denying the "eT- 
ecution" of the instrument, or the "consideration" for which 
it was given. In other words, the plea is required to be 
verified by oath, when it alleges that there was no con- 
sideration; but the same requirement is not applicable, 
where it simply alleges that the consideration had failed. 
And we think that there were sound reasons for thu^j re- 
stricting the application of the section. In the majority of 
eases, it would be extremelv difficult for the holder of 
these instruments, to prove affirmatively, the consideration for 
which they were given, (as would have been required 
to have done at common law, except in the case of bonds,) 
but not so as to the failure of the consideration, that is a 
matter much more easily proved, and therefore the statute 
left it as it stood before the passage of the act. By the 
3rd and 4th Ann, promissory notes and bills of exchange 
were made negotiable, they imported a consideration, and 
it was not necessary that the holder should prove the 
same. If the maker desired to attack the considera- 



346 SUPREME COTTET. 

Hagler vs. Mercer. — Opinion of Court. 

tion, he must do so by an affirmative plea, alleging 

either a want or failure of the same, and he thereby took 

upon himself the oniis probandi. Our statute has modified 

the common law rule upon this subject, so far as it relates 
to the want of consideration, but has not altered it where 

the defence is a failure of consideration. But even in the 

former case, the only effect of the statute is to change the 

burthen of proof; the defendants may still plead the want 

of consideration, without being required to verify his plea 

by oath, but in such case, he takes upon himself the 

burthen of proof, as he formerly did at common law. 

It is true that in the proviso to the twenty-fourth section, 
it is -said ^Hhat notliing in this act shall prevent an execu- 
tor or administrator from denying the execution aforesaid, 
or from pleading a want or failure of consideration, if he 
shall give in writing, reasonable notice of such intention 
to the plaintiff,^' his agent or attorney, and this proviso has 
been construed to exempt them from the operation of the 
requirement contained in the body of the section, which im- 
poses the necessity of an oath. From this it has been urg- 
ed that the section was intended to apply as well to the 
plea of a failure as of a want of consideration; but the 
statute being in derogation of the common law, although 
partaking somewhat of a remedial character, it must not 
be so construed as to enlarge its operation. 

Let the judgment be reversed, and the cause remanded 



TERM AT TAMPA, 1855. 347 



Gamble ys. Campbell. — Opinion of Court 



to the court below, for such further proceedings not incon- 
sistent with this opinion, as may be appropriate. 



Robert Gamble, Appellant, vs. Campbell Appellee. 

1. A court of equity will not enjoin a Judgment at law and grant a new trial in 
case of negligence and inattention of a plaintiff to the defence of his suit 

2. It is not proper to dissolve an injunction or dismiss a bill for want of a suits 
ble bond for costs or for insufficient notice or non-payment of costs ; the court 
should correct the error if possible, without resort to this alternative. 

Appeal from a decree of the Circuit Court for Hillsbo- 
rough county. 

J, T. Magbee for appellant. 

J, Gettis for appellee. 

BALTZELL, C. J. 

This is a suit instituted in equity by the complainant 
Gamble to enjoin a judgment at law recovered against 
him, and to obtain a new trial. 

Defendant demurred to the bill, insisting that there is 
not suflScient equity in it to entitle complainant to relief. 



348 SUPREME COURT. 



Gamble vs. Campbell. — Opinion of Court 

The basis of the complaint is the excessive charge by 
defendant for work done to the machinery of complainant 
at his sugar plantation. He alleges that the work execu- 
ted ought to have been performed in fourteen or fifteen 
days, according to his estimate is worth about seventy 
five dollars, whereas the judgment of the court is for two 
hundred and twenty five dollars; in addition to this that 
there was an agreement for arbitration and to dismiss the 
suit, which not having been done, he was wholly unprepar- 
ed for trial, and judgment was rendered against him with- 
out defence. 

The first point is as to the charge for the work, and here 
it is obvious tliat the averments are very vague and indefi- 
nite. We are not informed what work was done nor the 
character nor extent of it, nor whether it required skill or 
was ordinary kind. We are only told that it it ought to 
have been performed in fourteen or fifteen days, and the en- 
gineer selected as referee made his estimate by the ex- 
travagant charges made against Government in the Indian 
War. In cases of this kind there should be specific and 
definite statements to satisfy the court that injury and in- 
justice have been done, especially where knowledge of the 
subject matter can scarcely be supposed to be in its pos- 
session. That this is indefinite, it is only necessary to say 
that the denial of these statements presents no issue, and 
their ascertainment brings us no nearer to a conclusion as 
to the merits of the contest than wTthout it. The merits 
of the case depend upon this position for if the judgment 
is not for too large an amount then complainant is not in- 
jured. 

Whilst we fl.re of opinion that the allegations do not 



TERM AT TAMPA, 1855. 349 

Gamble vs. Campbell. — Opinion of Court 

make out a case in this respect entitling the complainant 
to relief, we proceed to the other charge of surprise in the 
respondent's not dismissing the suit at law, and his taking 
judgment contrary to agreement. 

We are by no means satisfied from the statement in the 
bill that there was such agreement; on the contrary in- 
cline to the opinion that there was not, whilst an arrange- 
ment is stated to have taken place between the friend of 
complainant and defendant, the terms of which are nar- 
rated to the effect that an engineer was to be the refer- 
ree, that items were to be furnished, witnesses and evi- 
dence to be produced, one hundred and fifty dollars to be 
paid to defendant, the bill proceeds as follows: 

"That after these interviews with said Braden the friend 
of complainant it was understood that the suit at law was 
dismissed, and said Braden left the place Tampa, consider- 
ing the matter of the suit settled, and that the arrangement 
for the reference was acceptable to all parties." If the 
dismissal had been part of the contract it was easy to have 
so stated, but there is nothing of the kind, and we are 
informed that after the arrangement was made, it was un- 
derstood, with whom or by whom is not said, that the 
suit was to be dismissed. The importance of this fact is 
too obvious in its effect on the suit to allow a vague and 
imperfect allegation of this kind, to have the weight of a 
positive and definite charge, so that we are constrained to 
believe that no such agreement was made. 

Passing from this point we do not perceive even that an 
agreement for a reference was made. The allegation 
that the friend of complainant agreed to a reference is not 



350 SIJPBEME COURT. 



Gamble vs. Campbell. — Opinion of Court 

sufficient, unless authority was shown and alleged from 
complainant or his adoption of it afterwards, established. 

If it had the sanction of complainant he admits he did not 
perform, but forgot, one of its main provisions, the pay- 
ment of one hundred and fifty dollars to secure perform- 
ance of the reference, and that he altogether failed to at- 
tend to the reference either by beiilg present or having 
witnesses &c. present. It is true the latter is attempted 
to be excused by pressure of other business, yet the whole 
statement shows conclusively, that defendant acted pru- 
dently in not dismissing his suit, and in not relying upon 
the parol engagement of complainant's friend to adjust the 
matter by arbitrament. The whole case is fertile of omission 
and neglect of this character. Complainant is sued and 
is indebted to the kindness of a lawyer who volunteers to 
prevent a default by entering his name at the first term; 
another friend volunteers to arrange the case by reference, 
but he neither complies with the terms of reference nor 
does he attend the trial of the case before the referee, nor 
does he regard in any degree the suit at law. Here also no 
defence is made, and judgment is rendered necessarily in 
his absence. The result of all this is that bv the award 
of the referee and the judgment of tlie court both, he is 
declared indebted in about the same sum. Under such cir- 
cumstances it would be extending the powers of a court 
of equity to a most unprecedented extent, indeed paying 
a premium to indifference and inattention to allow his suit 
to be successful. Complaint is made of the credit directed 
by the court injurious to complainant, but we think 
without propriety. The credit is directed of the date of 



TEBM AT TAMPA, 1855. 361 

Hooker vs. Gallagher. — Statement of Caae. 

the judgment although made of a latter date, so that the 
injury Ib to defendant. 

We do not concur in the view of the court as to the dis- 
solution of the injunction. A bill should not bt absolutely 
dismissed or the injunction dissolved for deficient injunc- 
tion bond for non-payment of costs or for want of notice. 
The plastic and salutary power of the court of equity is 
exerted to amend and correct, rather than by adopting the 
harsh and severe rules and maxims of the common law 
courts, to dismiss and turn the parties out of court. The 
injunction was properly dismissed for want of equity. 

For these reasons we are clearly of opinion that the 
plaintiff has not made a case entitling him to relief, and 
his bill was properly dismissed. 

The decree will therefore be affirmed with costs. 



William B. Hooker, Plaintiff in Error, vs. John Gal- 
lagher, Defendant in Error. 

1. A promissory note, payable to A. B. or order, must be endorsed by the 
payee to enable the holder (other than the payee) to sue upon it in hi$ own 
name. 



352 SUPREME COURT. 



Hooker vs. Gallagher. — Opinion of Court. 
• """""" ' — — — ^— — — — ^— — ^^— ^-^^^^^^^^— — ^— — ^^ 

2. A declaration upon such a note by a bolder, other than the payee* Is Mat- 
tive in substance if It does not allege that the note was endorsed. 

3. A demurrer opens all the pleadings, and the court should give JadgmcBt 
against the party who committed the first error (in substance) in pleading. 

4. It is error for the court to give a Judgment by default as for want of a plea 
when there is a good plea in the case upon which issue has been Joined. 

5. When the plaintiff declares in assumpsit on a promissory note, he camiot 
properly be permitted to give in evidence, a sealed instrument as the foundir 
tion of his action. 

6. The copy of the cause of action required by the statute to be annexed to the 
declaration, is no part of the declaration and cannot be reached by demurrer. 

Writ of error to the Circuit Court for Hillsborough 
county. 

J, T. Magbee, for Plaintiff in Error. 
James Gettis, for Defendant in Error. 
DOUGLAS, J. 

This case was brought up by writ of error from Hills- 
borough circuit court, where John Gallagher, the defendant 
in error, brought suit against Wm. B. Hooker, the plaintiff 
in error, upon a promisory note for *Hhe sum of eighty 
dollars,^' alleged to have been made by him, payable to one 
Thomas Weeks or order, and by the said Thomas Weeks, 
sold and delivered to one William Butler, who sold and de- 
livered the same to the plaintiff. 

It is not alleged in the declaration that the note was en- 
dorsed, either by Thomas Weeks or Wm. Butler. 

Annexed to the declaration is a copy of a single bill of 
the same date and amount, as the instrument described in 
it, and prefaced by the words, ^'copy of note" 

The defendant demurred to the declaration, and alleged 
as causes of demurrer: First, That plaintiff cannot sue on 



TERM AT TAMPA, 1855. 353 

Hooker vs. Gallagher. — Opinion of Court 

the note, it not being endorsed; iSecond, The note being 
payable to order, is not negotiable without its being en- 
dorsed; Third, Copy of the note shows that there is no en- 
dorsement; Fourth, Plaintiff cannot maintain suit on the 
note as copied in the declaration. This demurrer was, af- 
ter argument, overruled by the court. Whereupon, the de- 
fendant put in three pleas: First, The general issue; Se- 
cond, That the note was transferred by William Butler to 
plaintiff after it had become due and payable, and at the 
time it was transferred to plaintiff, by the said Wm. Butler 
the defendant held two (certain) promissory notes against 
the said Wm. Butler, which were transferred bv one C. A. 
Walker, to defendant, of which plaintiff had notice, 
alleging further, that at the time of the transfer of said 
notes, the said Wm. Butler was indebted to the defendant, 
upon one of them, thirteen dollars and sixty-two and one- 
lialf cents, and upon the other, seventeen dollars and sixty- 
four cents. 

The last plea alleges an indebtedness of the plaintiff to 
the defendant at the time when this suit was instituted, for 
money had and received by the plaintiff of the defendant, 
and for other money upon an account stated, amounting 
in the whole to one hundred and sixty dollars, offering to 
set off the said several sums, and concluding as in an ordi- 
nary plea of set-off. To the second plea the plaintiff de- 
murred. To the first he joined issue, and replied to the 
third. 

The plaintiff sets forth as cause of demurrer to the sec- 
ond plea, that the promissory note on which this suit was 
brought was payable to Thos. Weeks, or order, and the 
said Thos. Weeks, transferred the same to said Wm. But- 

24 



354 SUPREME COURT. 

Hooker vs. Gallagher. — Opinion of Court 

ler, and the said Wm. Butler transferred the same to the 
plaintiff, and therefore, the defendant hath no legal right 
to set up any debt that existed between him and the said 
Butler, as a set-off in this suit, and because the said plea 
is not responsive to the declaration, in this, that it does not 
set forth, that said note was made by the defendant, and 
payable to Thos. Weeks or order. 

The demurrer, which by its term was confined to the 
second plea, was sustained. The order is as follows, viz: 
"On hearing argument on the demurrer to the pleas herein 
made and filed, the court sustains the said demurrer.'^ After 
which the plaintiff by his counsel moved for judgment by 
default, as for want of a plea, which motion was sustained 
and an order was entered that the clerk assess the dama- 
ges and he having assessed them at the sum of eighty-seven 
dollars and seventy-five cents, judgment was entered a- 
gainst the defendant for that sum. 

The following errors are assigned, viz : 

I. The court erred in overruling defendant's demurrer 
to plaintiffs declaration. 

II. The court erred in permitting and hearing plaintiffs 
demurrer to defendant's pleas, after plaintiflE had filed his 
replication thereto. 

III. The court erred in sustaining the plaintiff's demur- 
rer to defendant's plea of set-off. 

IV. The court erred in not dismissing the plaintiffs suit 
after the plaintiff had demurred to defendant's pleas, be- 
cause a demurrer opens all the pleadings, and the court 
is bound to give judgment against the party committing 
the first error in pleading. 

V. The court erred in not dismissing the plaintiff's suit 



TERM AT TAMPA, 1855. 355 

Hooker vs. Gallagher. — Opinion of Court 

after the demurrer to defendant's pleas, as stated in the 
fourth error, assigned for the following reasons, viz : 

1. The plaintiff's suit was brought on a sealed instru- 
ment, and he did not set it out (as such) in his declaration. 

2. There was a variance between the declaration and 
the note copied thereon. 

3. Because the plaintiff had misconceived his cause of 
action, and brought his suit in assumpsit on a sealed in- 
strument. 

4. The court erred in permitting the note to be given 
in evidence, it varying from note declared on in the decla- 
ration. 

It is proper for us to remark, that the last error assigned, 
(viz. the fifth,) relates to a matter that is not properly be- 
fore us. This court has repeatedly held that the cause of 
action, a copy of which is required by the statute to be an- 
nexed to the declaration is no part of the declaration, and 
cannot be reached by demurrer. 

If such a variance exists as is here alleged, the defendant 
when the note or bill was offered in evidence, might have 
objected to it on that ground, had his objection noted, (if 
it were not sustained,) and made the reception of the doc- 
ument in evidence, the ground of a bill of exceptions. Then 
it would have been legitimately before the court for its ac- 
tion, it is not now, we return, therefore, to those that are. 
And the first is that the court erred in overruling the de- 
fendant's demurrer to the plaintiff's declaratioi*, and in 
this we agree with the counsel for the defendant and if he had 
relied upon this objection and permitted the judgment to 
stand upon his demurrer, we should have reversed it for 
that cause, as we consider the declaration defective in 




356 SUPREME COURT. 



Hooker ys. Gallagher. — Opinion of Court 

substance, in not alleging that the note declared upon, 
which as we have seen was payable to order, was en- 
dorsed by the payee. If it was transferred, as is alleged 
in the declaration, the plaintiff might have brought suit 
upon it in the name of the payee for his use. (Chitty on 
Bills, Ed., 1842, page 204,) but not in his own name. The 
endorsement of the note was necessary to enable him to d 

that. Ibid, (note) p. 6, 201 and 204, notes and p 518. 

And see 3 Kent's Commentaries, page 88, as to endorse — 
ments. 

A promissory note payable to order, is a negotiable instru — 
ment, and must be endorsed to give the holder, (other thai 
the payee,) a right to call on the maker for payment, or tc^^ -o 
bring suit against him in his own name. The defendant^i^t, 
however, did not rely upon this principle, but put in sever- 
al pleas, in two of which he attempted to set off debts al- 
leged to be due to him from one Wm. Butler, an intenn^^ ^ 
diate holder of the note. These pleas were clearly bad 
whether the note was in point of fact endorsed or not, 
our statute of set-off, (Thomp. Dig., p. 347, sec. 2,) only 
lows a set-off between the parties to the action. The com 
therefore, was right in sustaining the demurrer to the sec- 
ond plea, but while doing this, it should have Iijoked int< 
the declaration, for we recognize the rule of luw as laic 
down by the defendant's counsel, that a demurrer oj 
all the pleadings, and that the court should give judgmen -^^ 
against the party who committed the first error in pleadii 
if the error be a substantial one. Chitty in the first vol 
of his work on pleading, 707, says: "A party should n< 
demur unless he be certain that his own previou?* pleadin 
is substantially correct, for it is an established inile, 





TERM AT TAMPA, 1855. 367 

Hooker vs. Gallagher. — Opinion of Court 

ipon the argument of a demurrer, the court will notwith- 
tanding the -defect in the pleading demurrered to, give 
udgment against the party whose pleading was first de- 
ective in substance, citing a great number of authorities in 
upport of their position, all of which, so far as we have 
xamined them, sustain it, and moreover, this court has re- 
peatedly so held. And as the first error in this case was com- 
aitted by the plaintiff, (in the court below,) the judgment 
ipon the demurrer there, should have been for the defen- 
iant, and here we might, perhaps, with propriety stop. 

There are however, other errors in the record, which we 
leem it advisable to notice. The demurrer as before re- 
narked is by its phraseology confined to the second plea, 
I fact we think that could not have been brought to the 
lotice of the learned judge who decided upon it, in the 
jourt below; it was probably argued there, as it has been 
lere, as though it extended to all the other pleas. Had 
:he judge understood that it was thus confined, and that 
;he plaintiff had joined issue on all the other pleas, he 
uronlA not, we think, on motion of the plaintiff's counsel have 
fiven a judgment by default as for want of a plea, and 
lave authorized the clerk to assess the damages. 

The last plea was a plea of set-off, of an indebtedness 
3y the plaintiff to the defendant to which the plaintiff had 
replied, and this raised an issue for a jury to try. 

Whether the plaintiff after filing his precipe, and 
3ausing his summons to issue in an action of assumpsit, 
30uld declare upon a "Single Bill,'* or as it is sometimes 
sailed, a note under seal, it is not necessary for us now to 
decide, but having declared upon a promissory note, we 
have no hesitation in saying, that he could not properly 




358 SUPREME COUBT. 



Hooker vs. Gallagher. — Opinion of Conrt 

be permitted to give such a document in evidence. Thejr 
are very different instruments. The one is known to the 
law merchant, and is governed by its rules, having beei 
placed by the statute of 3 and 4 Ann chap. 9, made perpet- 
ual by the statute of 7 Ann chap, 25, upoti, the footing o] 
inland bills of exchange, (Bowie Ass. of Ladd vs. Duval 
Gill and John, 175. Chitty on Bills Ed. 1842, page 518,) 
act which should be most liberally construed being a reme — -^5- 

dial law, for the encouragement of trade. Milne vs. Gra »- 

ham 1 Bar. and Ores. 192. 2 dow. and Ey. 293. De Lie^a 
Chaunette vs. Bank of England, 2 Barn, and Aid. .185. Th^^ e 
other is not known to the law merchant, and if governe(P^^:»d 
by its rules to any extent, it is only by virtue of our statuto^^-^e 
which makes bonds and other instruments under seal as— -^^ 
signable, and when duly assigned authorizes the assigne^^ -e 
thereof to bring suit thereon in his own name. See Thomp ^• 
son's Dig. p. 348, No. 3. The judgment being erroneoaaa^B, 
it must be reversed with cost, and the case be remande^^iiJ 
to the court below, for further proceedings, not inconsihi^ - 
tent with this opinion. 



Decisions 



OF THE 



Supreme Court of Florida, 



AT 



MARCH TERM, 1855, 



Held at Mariana. 



Hekby Ahben and Henry Hyer, Appellants vs. Georgi5 

Willis, Appellee. 

1. It may be laid down as a safe rule, that every presumption is to be in favor of 
the mllng of the court below, where the same is made In reference to any 
point, which at common Iaw,was a matter purely of discretion; to induce the 
appellate court to control the discretion, it must be made manifest that in- 
justice or injury has been done to the rights or interests of the party asking 

Its interference. 

2. Under the operation of "Reg. Oen.»» (Hill. Term 4. W. W.) which 
have been adopted for the regulation of the practice in the Circuit Courts, 



) 



360 SUPREME COURT. 



Abren ft Hyer, vb. Willis. — Statement of Case. 

where a defendant Intended to rely upon either a want of consideration, oi 
a failure, or Illegality of consideration as a defence to the action, he shall 
forth in his plea so much of the facts or circumstances connected with thi 
transaction, as may be necessary to apprise the plaintiff fully, of the spedfl 
nature and character of the defence, which he will be required to meet 

Appeal from a judgment of Escambia County Circuit 
Court. 

Tins was an action of debt brought by the appellee on 
a sealed note. The appellants who were defendants below 
pleaded first, non est factum, and second ^'that no consider- 
ation passed to said defendants whereon they could be 
charged by the said supposed writing obligatory," conclu- 
ding to the county. To the second an affidavit of its truth 
was attached. 

Upon the first plea issue was joined and to the second, 
plaintiff demurred, alleging the following as causes of de- 
murrer. 

1. Want of consideration is no defence to an action of 
debt on specialty. 

2. That the plea is too general. 

3. That it is not owned nor does it appear in and by the 
said plea, how and under what circumstances, or for what 
purpose the writing obligation in the declaration mentioned 
was made by the defendants. 

4. That the said plea ought to have stated and shown 
affirmatively how there was no consideration or value 
for the making of tlie said writing obligatory by the de- 
fendants. 

At June term 1854 the demurrer was sustained, and 
leave was granted to the defendants to plead over. 




TEEM AT MABIANNA, 1866. 361 

Ahren ft Hyer, vs. Willis. — Opinion of Court 

At October Term following, defendants applied for a 
continuance on the following grounds, viz: 

1. The first call of the docket was made before the se- 
lection of the jury and on the calling over the docket the 
second time, defendants supposing it was not the pre-em- 
tory call, were not ready with their case and the counsel 
of plaintiff insisted on a trial, and the Judge ruling the 
party into instant trial, the defendants were taken by sur- 
prise. 

2. The defendants filed a bill for injunction on the first 
day of the term and entered a motion on the book, that a 
motion for an injunction would be made this day. When 
the case on the law docket was called the defendants ask- 
ed it to be passed over till the motion for an injunction 
could be argued, it being set for the same day, which the 
court overruled. He believes that the injunction will be 
granted as soon as it is presented to the court. That this 
application is not made for delay but that justice may be 
done, and that they will be ready for trial at the next 
term. 

The motion for continuance was overruled. Judgment 
entered for the plaintiff and defendants appealed. 

W. Anderson and B, D, Wright, for appellants. 

R. L, Campbell, for appellee. 

DuPONT, J. delivered the opinion of the court. 

The assignment of errors filed in this cause presents for 
our consideration two points Ist the propriety of the rul- 
ing in the Circuit Court; refusing to grant the motion of 
the defendants below for a continuance of the cause, and 
2nd, the sufficiency of the defendants special plea to the 
plaintiff's declaration. 



362 SUPREME COURT. 



Ahren & Hyer, vs. Willis. — Opinion of Court 

At common law, the granting or refusing of a motion for 
a continuance is a matter exclusively within the control, 
and dependent upon the discretion of the nisi prius Judge, 
and error could not be predicated thereon. Such was the 
practice in this court, until it was altered by the statute 
which gives to either party in a common law proceeding, 
the right to assign as error an interlocutory order, which 
may be made in the progress of the cause. Under the 
provisions of that act, this assignment of error has been 
made, and we are called upon to review the decision of 
the court on that point. In proceedmg to perform that 
task, it may be laid down as a safe rule for the guidance 
of the appellate tribunal, that every presumption is to be 
in favor of the correctness and propriety of the ruling of 
the court below, where the «ame is made in reference to 
any point which before the passage of the act, was a mat- 
ter purely of discretion; and that to induce thi5 court to 
control that discretion, it must be made manifest that in- 
justice or injury has been done to the rights or interests of 
the party seeking its interference. 

The affidavit of the defendant, upon which the motion 
for the continuance was predicated, alleges that the party 
was surprised into trial, but the circumstances stated, do 
not in our opinion sustain the allegation. The entire 
gravamen of the complaint is, that the "parties" were not 
readv with their case, when the same was called for trial, 
without sufficiently showing how or why they were not 
ready. The only issue before the court at the time that 
the motion was made for the continuance of the cause, 
was upon the plea of non est factum, and there is no com- 
plaint that the parties were deprived of the benefit of any 



TERM AT MARIANNA, 1855. 363 

Ahren & Hyer, ▼«. WillU. — Opinion of Court. 

evidence to support that plea, by the ruling of the court. 
The only allegation contained in the affidavit, which would 
even seem to tend to that point is, that the defendants had 
"filed a bill for an injunction on the first day of the term 
and had entered" a notice that a motion for an injunction, 
would be made; but we do not think that such a circum- 
stance would afford any ground for the granting of the 
continuance, as the injunction, if proper to be granted 
could be obtained as well after, as before the trial at law. 
Besides, a continuance had already been granted to the 
defendants at the previous term of the court, and there 
was therefore less excuse for their not being ready to pro- 
ceed in the trial, at the regular call of the docket. 

Upon a careful consideration of all the facts and circum- 
stances as set forth in the affidavit, we are veiy clearly of 
the opinion that the court below did not err, in refusing 
to grant the motion of the defendants for the continua- 
tion. 

The second error assigned presents for our consideration 
the sufficiency of the special plea, alleging a want of con- 
sideration for the making of the instrument sued upon. 
The declaration was in debt upon a sealed note, or single 
bill, and in addition to the special plea before referred to, the 
defendants also filed the plea of non est factum Upon this 
latter plea issue was joined, and a demurrer filed to the 
former; there was a joinder in demurrer, and the ground 
insisted upon at the argument before us was that the plea 
was too general, being merely of a negative character, and 
that it did not set forth affirmatively the circumstances un- 
der which the instrument had been executed. 

At common law, it is not permitted to a party to attack 



364 SFPEEME COUBT. 



Ahren & Hyer, vs. Willis. — Opinion of Court. 

the consideration of a sealed instrument in tliis mode 
where the instrument is made the foundation of the 
action. But our statute has altered the common law doc- 
trine in this respect, and under its provisions, it may be 
now done, if the party defendant will support his plea by 
an affidavit. (Vide Thomp. Dig. 331, part 4.) The plea in 
this case was accompanied by the affidavit required by the 
statute, and if it had been properly pleaded, and the plea 
sustained by competent evidence, it would have afforded a 
complete defence to the action. We are of the opinion 
however, that the objection to the form of the plea as 
pleaded in the court below, was well taken, and that the 
court was correct in sustaining the demurrer, and ruling 
the defendant to plead anew. 

Before the adoption of the new rules in England (Eeg. 
Gen. Hill, T. 4. W. 4) pleas were much more general in 
their character than they are at this day. Under the old 
system of pleading, it was a rule admitting of very few 
exceptions, that no matter which amounted to the general 
issue, could be made the subject of a special plea. It 
was objected however, that as a consequence of the general 
character of the pleadings under that system plaintiff's 
were frequently surprised by the facts adduced in evidence 
at the trial, and to remedy that alleged defect, the new 
rules were adopted, which require, for the most part, that 
the facts intended to be relied on as a defence, should be 
circumstantially set-forth in the body of the plea. We 
have adopted these new rules, for the government of the 
Circuit Courts, so far as they are applicable to our system, 
of jurisprudence, and the adjudications which have been 
made in the English Courts, in regard to these rules, will 



TERM AT MARIANNA, 1855. 365 



Abren & Hyer, vs. Willis. — Opinion of Court 



commend themselves to our consideration as authority in 
the premises. The precise point now under discussion 
came up in the Court of Exchequer in England in the case 
of Easton vs. Prachett, (1 Comp., Meas. and Eoscoe, 178,) 
and it was there decided that the plea of the defendant 
which merely alleged "that he endorsed the bill without 
having or receiving any value or consideration whatso- 
ever, in respect to his said endorsement, and that he has 
not at any time had any value or consideration whatsoever 
in respect of such endorsement," was too general in its al- 
legations to be in conformity to the requisitions of the new 
regulations. Lord Abinger, C. B., in delivering the judg- 
ment of the court, says in reference to the form and char- 
acter of this plea, "it would have been held before the late 
regulations as to pleadings, as amounting to the general is- 
sue. The new regulations do not justify this form of plea. 
It was intended to make it encumbent to set fort!', the cir- 
cumstances under which tlic bill is sought to be impeached. 
The plea of the general issue is forbidden by the new rules 
to be pleaded in an action on a bill of exchange, and the 
plea of a special matter, which according to the new rules 
is now to be pleaded, is not to be confined to the effecting 
the same purpose as a mere notice to prove the considera- 
tion. It was intended that the plaintiff should be apprised 
by the plea of the grounds upon which the defendant ob- 
jects to the right of recovering upon the bill, as for exam- 
ple, that it was given for the accommodation of the plain- 
tiff, the oniLS of proving which, lies upon the defendant, or 
that it was given upon a consideration which afterwards 
failed, which in like manner the defendant muat prove, or 
that it was given on a gambling transaction; and various 



366 SUPBEME COURT. 



Ahren & Hyer, vs. Willis. — Opinion of Court. 

similar cases may be readily suggested. The intention 
then of these regulations being to give the plaintiflF due no- 
tice of the real defence which is to be set up, would mani- 
festly fail, if such a general plea as the one in question 
could be sustained, because the plaintiff would be left ia 
the same state of uncertainty in which he was, before these 
rules of pleading were introduced." The same point agaici 
came up for adjudication in the same court, in the case ol 
Stoughton vs. Earl of Kilmorey, (2 Cromp. Meas. an.^ 
Ros. 73) and the former decision made in the case ^^ 
Easton vs. Prackett, was referred to as decisive of the qu^^ 
tion. In this latter case, Lord Abinger remarked, "Tim- ^8 
is a plea in the negative. The object of the rule of plea^3- 
ing was, that all these matters independent of the makini^g 
of the promise, should be stated affirmatively, in order th^^t 
the plaintiff might know from the facts stated, what In»e 
was come to try. A variety of circumstances migMnt 
defeat the consideration; tliey ought therefore to t>c 
stated, in order that the plaintiff may know what lie is to 
meet. All the advantages to be derived from the new 
rules as to pleading would be entirely lost, if this mode of 
pleading were to be allowed." 

It is true, by a provision of our statute, the onu.s of prov- 
ing the consideration in the cases of bonds, notes and bills 
of exchange (which ordinarily import a consideration) 
may be thrown upon the plaintiff, if the defendant will 
support his plea by an affidavit of its truth; but this cir- 
cumstance, so far from operating to relieve the plea froirf 
the stringency of the new rules, is in our opinion a potent 
consideration why it should be applied with the greater 
particularity, in the practice of our courts. 



J 



TERM AT MARIANNA, 1855. 367 

Ahren & Hyer, vs. Willis. — Opinion of Court. 

The rule to be deduced from the authorities before cited, 
we take to be this, that where a defendant intends to rely 
upon either a want of • consideration, or a failure or illegal- 
ity of consideration, as a defencer to the action, he shall 
set forth in his plea, so much of the facts or circumstances 
connected with the transaction as may be necessary to ap- 
prise the plaintiff fully of the specific nature and 
character of the defence which he will be required to 
meet. 

The plea in this case was wholly and entirely of a 
negative character. The only allegation therein contained 
was, that "no consideration passed to said defendants 
wherein they could be charged by the said supposed writ- 
ing obligatory," accompanied by no explanation of circum- 
stances under which the same was executed, or statement 
of any of the facts connected with the same. 

Upon a careful consideration of the point presented by 
the demurrer, we are inclined to coincide in the view taken 
of it by the English court, in the cases before cited, and to 
decide that the demurrer was well taken. 

Let the judgment of the Circuit Court be aflSrmed with 
costs. 



) 

hi 
/9dj 



368 SUPREME COURT. 

Yonge & Bryan vs. McCormick.— ^>piiiion of Court. 

Chadler C. Yonge and Henry Bryan, Appeliants, vs. 

John McCormack, Appellee. 

1. "Equity will enjoin the collection of the purchase money of land, on ttt 

m 

ground of defect of title, after the vendee has posession under a conTeyuc 
from the vendor with general warranty, if the title is either posessed ir 
threatened, or if the purchaser can shew clearly that the title is defectifft" 

2. On a motion for injunction after answer, the court will look only to tbefteti 
that are responsive to the bill, and will presume against defendant when 1m 
has not answered when he ought to have answered. 

3. Where a new equity is set up by the answer to avoid that set up by the bill 
the court will not regard it on the motion. 

4. On a motion for an injunction, the court will not commit itself to points or 
questions that may arise at the final hearing. 

Appeal from an order of the Circuit Court for Jackson 
County, sitting in Chancery. The opinion of the court 
embraces substantially all the facts of the case, to which 
reference is made. 

McClellan, for Appellants. 

A. H. Bush, for Appellee. 

BALTZELL, C. J. 

This is an appeal from a refusal of the court below to 
grant an injunction at the instance of the complainants, 
Yonge and Bryan. The application was after answer.— 
The case made out by complainants, is substantially as 
follows: That they bought from defendant a tract of land, 
lying at the head of St. Andrews Bay, for a town site, 
hoping to realize from the sale of lots, more than a suffi- 
ciency to reimburse the purchase money, and under repre- 
sentations by defendant, that he had a bona fide and legal 
title to the land; that influenced by these representations, 
they paid part of the purchase money, gave notes for the 



■V' 



TEBM AT MABIANNA, 1855. 369 



Yonge & Bryan vs. McCormlck. — Opinion of Court. 

residue, and took a deed of general warranty. They state 
further, that on part of the notes they have been sued and 
judgment recovered at law. That the title to lot number 
one, part of the tract containing forty acres, is defective, 
that its ownership was the main influence to the purchase, 
as without it, they could not for a moment have entertain- 
ed the proposition to buy, as this lot cuts them from the 
bay, and the remainder of the tract is valueless without it, 
and that defendant was aware of the title at the time of 
the sale; that defendant is insolvent and unable to respond 
to damages in case of recovery on the warranty, and they 
pray for a rescission of the contract, for an injunction and 
for general relief. 

Defendant answering, admits the sale, receipt of the 
money, notes and existence of the judgment, denies that lot 
one cuts oflf the other part of the tract from the bay, but 
asserts that such other part extends to the bay. Alleges 
that the title to lot number one, is in his wife, to whom he 
furnished the money for entering it, and has never been reim- 
bursed, and that the lot actually belongs to him, and his wife 
should be held as his Trustee as to this land; that he ap- 
prised complainants at the time of making the deed, of the 
state of the title, of the entry being in the name of his wife, 
but that he paid for it, and in fact, that he handed to one 
of the complainants, the certificates therefor, and furn- 
ished them with all the facts connected with the transac- 
tion; that complainants have committed and permitted 
waste, so that it would be wrong to force him to take back 
the land; that their possession has not been disturbed, 
and that they are sufficiently protected by their warran- 

ty. 

25 



370 SUPEEME COURT. 



Yonge & Bryan vs. McCormlck. — Opinion of Court 

The defectiveness of title to part of the property, and 
the inability of defendant, through insolvency to compen- 
sate the deficiency, are the grounds of equity set forth by 
complainants, and are sufficient of themselves to entitle 
them to the injunction. Without committing ourselves to 
a point only considered for the purpose of this preliminary 
proceeding, it is sufficient to refer to the authorities cited 
by complainant's counsel, and more particularly to the 
doctrine of the courts of Virginia. It is there well settled 
that "equity will enjoin the collection of the purchase 
money of land, on the ground of defect of title after the 
vendee has taken possession, under a conveyance from the 
vendor, with general warranty, if the title is questioned 
by a suit, either prosecuted or threatened, or if the pur- 
chaser can shew clearly that the title is defective."— 
Keyton vs. Branford, 5 Leigh, 39, Roger vs. Kane, 5 Leigh, 
606, 2 U. S. Eq., Dig., 654. 

The equity of the bill has not been seriously riuestioned, 
but it has been urged that the answer avoids it, and 
shews a state of facts which removes the equity set np, 
and the answer has been treated in the argument as if en- 
titled to the same credit as if the case were submitted for 
final hearing. 

The answer we have seen admits the defects of title and 
evades the allegation of insolvency. 

As to the mode of considering the answer, it is sufficient 
to refer to the adjudications, which are to this effect : 

"On a motion to dissolve, everything is to be presumed 
against defendant in respect of every matter to which he 
could answer directly, and has not answered. The court 
will look to such facts of the answer only as are responsive 



TERM AT MARIANNA, 1855. 371 

Yonge & Bryan vs. McCormick. — Opinion of Court. 

to the bill/' Moore vs. Jerrill, 1 Kelly, 7; Jones vs. Lam- 
ly, 2 Ire. Eq., 278; Dalrymple vs. Sheperd, Ibid., 153; 
3 Ired. Equity, 153; 1 Eden Inj. by Waterman. 116. 

"On the hearing of such motion, defendant is the actor, 
and although the contents of his answer are generally to 
be taken as true, it must fully answer the plaintiff's equity. 
There must be no evasion, no disposition to pass over the 
material allegations of the bill, and if a reasonable doubt 
exists in the minds of the court, whether the equity of the 
bill is not sufficiently answered, the injunction will not be 
dissolved." Miller vs. Washburn, 3 Ired. Equity. 170. 

"When the equity of the bill is not denied by the an- 
swer, but a new equity is thereby introduced to repel or 
avoid it, the injunction will not be dissolved, but continued 
to the hearing." Lyvely vs. Wheeler, 3 Ired. Equity, 
170. 

These are adjudications as to the motion to di=?solve; but 
it is not perceived that substantial difference exists be- 
tween it, and the case of a motion or application for an 
injunction after answer. 

The order refusing the injunction will be reversed and 
set aside, and the case remanded to the court below, with 
directions to grant the injunction as prayed for, and for 
further proceedings not inconsistent with this opinion. 



372 SUPREME COURT. 



Sullivan & Hyman vs. Honacker. — Opinion of Court 



Sullivan and Hyman, Executors, &c.. Appellants, vs. 

Honacker, Appellee. 

l.In a suit by executors or administrators, who have obtained their letten tei* 
tamentary or of administration In another State, it is error to Instruct tlie 
jury that the plaintiffs cannot recover without producing the probate of the 
will or letters of administration duly obtained, &c., and properly authenti- 
cated. 

2. Whether such letters have been duly obtained or not, Is a question to be 
settled in another stage of the case. 

8. Whether they are properly authenticated or not, is a question for the court, 
not the Jury. 

4. Every executor or administrator, when he sues as »uch, should make pro- 
fert of his letters testamentary or of administration. 

5. The defendant by craving oyer of the letters and putting in the proper plet, 
may avail himself of the want of title of such plaintiff to sue. 

6. By pleading the general issue only, he waives all objections to such letten 
and admits the plaintiff's right to sue as such executor or administrator. 

7. The omission of the profert when necessary, is now aided, unless the defen- 
dant dermurs specially for the defect. 

Appeal from Escambia Circuit Court. The cpinion of 
the court contains a full statement of the facts of this case, 
to which reference is made. 

S. A. Leonard, for appellants. 

D. Jordan, for appellee. 

DOUGLAS, J. 

This is an action of assumpsit instituted in the Circuit 
Court of Escambia county, by the appellants as execu- 
tors, &c., of Jolm Henly, deceased, against the appellee, 
to recover the amount of an open account. The declara- 
tion is in the usual form, concluding with a profert of the 



TERM AT MARIANNA, 1855. 373 



Sullivan & Hyman vs. Honacker. — Opinion of Court 

letters testamentary, under which they claimed to act. The 
defendant put in a plea of the general issue, and the case 
was submitted to a jury, "who being duly chosen and 
sworn after hearing the evidence and argument of coun- 
sel, returned a verdict for the defendant, upon wliich judg- 
ment was entered, "that the said plaintiffs take nothing 
by their suit, &c., from which judgment the plaintiffs have 
appealed to this court. 

The following bill of exceptions appears in the record, 
viz : "Be it remembered that on the trial of this cause, the 
court instructed the jury that it appearing upon the trial, 
that the plaintiffs are foreign executors, they cannot 
maintain this suit as such executors, without producing 
the probate of the will duly obtained in the State where said 
will was admitted to probate, and properly authenticated, 
under the act of Congress of the 26th of May, 1790. To 
which opinion of the court the plaintiffs by their counsel 
excepted, &c., and allege it as error here. Our statute, 
Thomp. Dig., p. 349, sec. 7, Duval Comp., 105, declares that 
"executors and administrators who shall produce probate 
of wills or letters of administration, duly obtained in any 
of the States or Territories of the United States, and pro- 
perly authenticated under the act of Congress of the 26th 
of May, 1790, shall be authorized to maintain notions in 
the several courts of this State, under the same rules and 
regulations as other plaintiffs." 

The question presented for our consideration, is wheth- 
er the court erred in giving the instruction set forth in the 
bill of exceptions, to the jury. We think it did. Whether 
the letters testamentary, under which the plaintiffs pro- 
fess to act, had been duly obtained or not, was one to be 



374 SUPBEME COURT. 



Sullivan & Hyman vs. Honacker. — Opinion of Court 

settled in another stage of the case ; whether they were duly 
authenticated under the act of Congress referred to or not 
was a question for the court and not the jury. The plain- 
tiffs, it will be observed, made profert of their letters tes- 
tamentary. If the defendant entertained any doubt whetb- 
er they had such letters, or if they had, whether they Ixal 
been properly obtained or not, his proper course woixli 
have been to crave oyer of the letters testamentary. li 
they had not been produced, that would have put an &iA 
to the suit. If they had been produced, and were not p^'xo- 
perly authenticated according to the act of Congress re- 
ferred to, the court would have ruled them out, and "the 
plaintiffs must have been nonsuited. If ti.ey w^re 
properly authenticated, but the defendant had been ad^vis- 
ed that they had been unduly obtained, or that for our 
other cause they had no riglit to institute suit, he could 
have availed himself of their want of title, by putting in 
the proper plea. He, however, elected to fill the "general 
issue" only, by doing which he waived all objections to the 
letters testamentary, and admitted the right of the plain- 
tiffs to sue as executors. 1 Chitty on PI. Ed., 1840, p. 
489, and authorities there cited. Our statute was intended 
to place foreign executors and administrators, mentioned 
in it, with respect to tlie institution and maintainance of 
suit in our courts, upon the same footing as executo.rs or 
administrators who had obtained their letters testamenta- 
ry or of admistration in this State, whenever they should 
produce such letters duly obtained and properly authenti- 
cated. 

Every executor or administrator, wherever his letters 
may have been obtained, should make profert of them. — 



TERM AT MABIANNA, 1855. 375 

SalllTan & Hyman ts. Honacker. — Opinion of Court. 

" ■! ■ ^m^ Ml ■■■■^■1 ■!_ _ _, _ _ l_IBII ^M ^111 

Chitty on PL vol. 1, Ed., 1840, p. 420, says : " In an ac- 
tion at tlie suit of an executor or administrator, immedi- 
ately after the conclusion of his declaration "to the dam- 
age, &c.^^ and before the pledges, it was always the course 
to make a profert of the letters testamentary, or letters of 
administration.^' But he adds, the omission of the profert 
when necessary, is now aided, unless the defendant de- 
murs specially for the defect, citing 4 and 5 Ann, chapter 
16, section 1, which is in force here by our statute, adopt- 
ing the common law of England, and certain British 
statutes. Thomp. Dig., p. 21, No. 2. 

And here it may not be amiss to remark that by the new 
rules, "in all actions by and against executors or administra- 
tors, or persons authorized by statute to sue or be sued as 
nominal parties, the character in which the plaintiff or de- 
fendant is stated on the record to sue or be sued, shall not 
in any case be considered as an issue, unless specially plead- 
ed.*' 1 Fla. R., general rules. No. 22. 

Considering that the court below erred in its charge to 
the jury, above set forth, and that such charge may have 
materially influenced their verdict, the judgment must be 
reversed and the cause remanded to that court for further 
proceedings, not inconsistent with this opinion. 



376 SUPEEME COUET. 

McKlnnon vs. McCollum. — Opinion of Court. 

/ 

John L. McKinnon, Appellant,vs. William W.MoCollum, 

Appellee. 

1. It Is error to submit an Issue upon one plea to the jury, while otlier plMt 
remain undisposed of, when It appears that they were not abandoned. 

2. The oath of office of Commissioner of Roads and Bridges, need not be ad- 
ministered by a Justice of the Peace, but may be administered by eartatn 
other officers. 

3. A Clerk of the Circuit Court may appoint a deputy. 

4. A Ministerial office may be exercised by deputy. 

5. A deputy may. In general, do any act that his principal could do, except to 
make a deputy. 

6. Whether If Road and Bridge Commissioners were not sworn at all, their 
acts would, for that cause, be nul and void. Queret 

7. The Supreme Court cannot entertain an appeal or writ of error in a case at 
law, until after the final judgment 

Appeal from Walton Circuit Court. 

This is an action of Trover commenced by the appellant 
at the Spring Term of said court, A. D. 1854, against W. 
W. McCollum for the conversion of a horse. 

The County Commissioners of Walton county, in 1853, 
appointed J. W. Williams and James W. Moots, of said 
county. Bridge and Road Commissioners for road district 
No. 1, in said county, in which district the said John L. 
McKinnon resided. The oath of oflBce was administered 
to J.W. Williams, one of said commissioners, by D. McLeod, 
Judge of Probate of said county, and the oath of office was 
administered to the other commissioner, so appointed, James 
W. Moots, by D. W. McCrannie, deputy clerk of the cir- 
cuit court of said county. The said Williams and Moots, 
the year as, 1853 sitting as a board of road com- 
missioners, after summons to the said John L. McEonnon, 



TERM AT MARIANNA, 1855. 377 

McKlnnon ts. McColIum. — Opinion of Court. 

entered up two judgments against him for a default in not 
working the roads in said district, and issued executions 
thereupon directed to any lawful officer of said county, 
which came to the hands of the defendant, McCollum, who 
was sheriff of said county, and which he levied upon the plain- 
tiffs horse, and after legal notice, sold him. The plaintiff 
forbade the sale and brought this action of trover. 

The defendant pleaded not guilty, and two special pleas 
setting up the matters aforesaid in justification. 

J. F. McClellan, for Appellant. 

DOUGLAS, J. 

This is an action of trover for the recovery of a certain 
horse, and was brought up by appeal from the Circuit Court 
for Walton county. The declaration in the court below 
was in the usual form ; to which the defendant put in three 
pleas : First, The general issue. Not Guilty ; the second and 
third are pleas in confession and avoidance, in which the 
defendant set up as a defence that he was Sheriff of Wal- 
ton county; that J. W. Williams, J. W. Moots were Eoad 
and Bridge Commissioners of a certain road district in that 
county; that John L. McKinnon, the appellant, was a de- 
linquent, and that at a court held by the said Williams and 
Moots, as such commissioners, two judgments were entered 
up against the said John L. McKinnon, upon which execu- 
tions were respectively issued and placed in his hands as 
such Sheriff, and that he levied the said executions upon 
the horse of the said appellant now sought to be recovered 
in this suit, and advertised and sold the same by virtue of 
the said executions as he lawfully might do, &c. 

Either the proceedings in the court below were very ir- 
regular or the record is very defective. The two pleas of 



378 SUPREME COUBT. 



McKlnnon vs. McCoUum. — Opinion of Coart. 

justification both conclude with a verification, yet they do 
not appear to have been replied to, or to present any issue 
for the juiy to try. The first plea (the general issue) con- 
cluded to the county and might, with propriety, have been 
submitted to the jury, had the other two pleas been dis- 
posed of, but thus to submit it while these other, pleas re- 
mained undisposed of, was an error for which (if there 
were no other,) the case should be sent back, as it clearly 
appears that they were not abandoned. There is, how- 
ever, another more important defect, one which consent can- 
not cure. There does not by the record appear to have 
been any final judgment entered in the case, and this court 
has repeatedly held that a writ of error or appeal will not 
lie in a case at law imtil after a final judgment, and that 
if either is taken before, it cannot entertain jurisdiction. — 
There is a long bill of exceptions accompanying (but not in) 
the record; this, however, while it speaks of rulings and 
judgments given during the trial of the cause says nothing 
of a final judgment. This appeal must therefore be dis- 
missed. 

And here were we to follow our accustomed course we 
should stop. But it has been intimated to us, that there 
are a number of other cases resting upon the same ques- 
tions as are presented in this, the most important of which 
perhaps arises out of the objection that Williams and 
Moots were not Commissioners of Roads and Bridges be- 
cause they had never taken the oath of office as directed by 
the statute, and that their acts as such were therefore 
null and void, and that our opinion is desired in regard to 
them. We have thought that it might be well for us to 
look into the question at least, and suggest our views upon 



TEBH AT MARIANNA, 1855. 379 

McKlDOon Ts. McCollom. — Opinion of Court 

it. This objection is founded upon the phraseology of the 
statute providing for the appointment of these Commis- 
sioners, Thomp. Dig. p. 141, No. 1, which says they 
"shall take an oath before some Justice of the Pe^ice faith- 
fully to discharge their duties as such," and lience it is in- 
ferred that unless thev were thus sworn, their acts are for 
that cause "Corum non judice" We are not prepared to 
admit that result even if they had not been sworn at all ; 
this however is a question which it is not necessary for us 
now to decide. 

It appears by the bill of exceptions that the oath of office 
was administered to Williams by the Judge of Probate of 
Walton county, and to Moots by the deputy Clerk of the 
Circuit Court for that countv; this would seem to be suffi- 
cient. Judges, and Clerks of the Supreme Court, Circuit 
Court, and Courts of Chancery, Judges of Probate, Justices 
of the Peace, and Notaries Public are authorized and em- 
powered to administer oaths, in all cases, in which by law 
oaths are required to be administered. Thomp. Dig. p. 
350 Sec. 9, No. 1. The case of these Commissioners was 
one in which by law oaths are required to be administered; 
it comes therefore precisely within the scope of the provi- 
sion last cited which was enacted at the same session as 
the one providing for the appointment of these Commission- 
ers, and must be construed in **pari materia" with it. 
Clerks of the Circuit Courts are specially empowered to 
appoint deputies, Thomp. Dig. p. 61, No. 1. The general 
rule is, that judicial offices must be exercised in person, 
and that a Judge cannot delegate his authority to ano- 
ther. 

What is a judicial, and what is a ministerial function 



380 SUPBEME COURT. 



McKlnnon vs. McCoUam. — Opinion of Court. 

has been (says Chancellor Kent 3 Comn. 365) a matter of 
dispute. In Widhurst vs. Waite 2 Inst. 491, Lord Mans- 
field said, it was taking the definition too large^ to say that 
every act, where the judgment was at all exercised, was a 
judicial act, and that a judicial act related to a matter in 
litigation. But a ministerial office may be exercised bj 
deputy; though a deputy cannot make a depuiy, accord- 
ing to the maxim, delegate potestas non potest delegari, 3 
Kent Com. 365, (Ed. 1832 p. 457.) In general ministerial 
officers can appoint deputies. Com. Dig. Title office, D. 1 ; 
so in general a deputy has power to do every act, whidi 
his principal might do, but a deputy cannot make a dep- 
uty. 1 Bouviers Law Diet. 455. 
Let the appeal be dismissed. 



Decisions 



OF THE 



Supreme Court of Florida. 



AT 



AN ADJOURNED 
APRIL TERM, 1855, 



Held at Tallahassee. 



BiCHARD MaIBEN, TRUSTEE, ET AL., APPELLANTS, VS. FRANCIS 

BoBE, Appellee. 

1. Where a deed of gift In trust for the separate use of a married woman was 
made in Alabama, by parties Hying there at the time of its execution, the 
laws of that State as to the rights of the parties under it, as administered by 
her Judicial tribunals form the rule of decision of the case. Her Courts 
having adopted the English rule as to the right of disposition of the feme in 
a case where there was no restriction or discretion in the instrument, their 
ruling was held applicable and conclusive as to the rights of the parties. 



382 SUPREME COURT. 

Malben, et al. vs. Bobe. — Statement of Case. 

2. In a deed of gift of property to the separate use of the wife^havlng no wordi 
restriction or direction as to alienatlon^the power of disposition is Incident ot 
to the ownership, and she may dispose of it as if she were a feme »oU. 

3. The English and New Yorlc rule to this extent, approved and adopted.- 

4. A married woman will not be protected or sustained in a course of doable 
dealing, calculated to involv/e an Innocent purchaser, and throw upon him tbe 
loss to arise from improper action of her husband. 

Appeal from a decree of the Circuit Court for Escambia 
county. 

Bobe, the appellee, filed his. bill in the Court below, a- 
gainst Kosanna Shomo and Richard Maiben, as her Trustee, 
and Joseph Shomo husband of said Rosanna, to perpet- 
ually enjoin a judgment obtained by said Trustee in Es- 
cambia Circuit Court. The judgment sought to be en- 
joined, was for the value of certain negroes, previously 
purchased by Bobe from Shomo and his wife, but which 
were claimed to belong to said Maiben, as Trustee of said 
Kosanna Shomo. The bills of sale to Bobe, were executed 
by Kosanna Shomo, whose husband, Joseph Shomo, ap- 
pended thereto, a relinquishment of all his right and title 
to the slaves. 

The bill alleges that Kosanna Shomo received the pur- 
chase money for the slaves, and that the same was their 
full value. That when the said Shomo and wife, came to 
Florida, they brought the slaves in question, and in order 
to deceive and defraud complainant and others, also brought 
with them a deed of gift of said slaves, from one David 
Tate to said Kosanna Shomo, which for the same purpose, 
was put on record in Escambia county. That in the year 
eighteen hundred and thirty-one, on the application of 
Joseph and Kosanna Shomo, the said Maiben, was appoin- 



ADJOURNED T. AT TALLAHASSEE, 1855. 383 

Malben, et al. ys. Bobe. — Statement of Case. 

« 

ted by the Circuit Court of Baldwin county, Alabama, 
trustee of said Rosanna Shomo to protect and enforce 
the trust supposed to be created by the deed of gift from 
David Tate to said Rosanna; that complainant had no 
knowledge of the said record, or of the appointment of said 
trustee, until at the trial of the suit at law against him, 
and therefore insists that he, complainant, is a bona fide 
purchaser, without notice or knowledge of the said trust, 
so as aforesaid created. 

The complainant annexed as an exhibit to his bill an au- 
thenticated copy of the deed from David Tate to Rosanna 
Shomo, which is as follows : 
Baldwin County^ 

State of Alabama. 

For and in consideration of the love and affection I bear 
to my sister, Rosanna Shomo, and in accordance with my 
previously expressed intention, I do hereby give and be- 
stow on my said sister, Rosanna Shomo, and to the heirs 
of her body, the following property, to wit: (naming them,) 
not to be subject to the control, or debts, or contracts of 
her husband Joseph Shomo, and in case of a further 
marriage, or marriages of my said sister, Rosanna Shomo, 
the above named property is not to be subject to the con- 
trol, debts or contracts of any future husband or husbands, 
but it is my intention that the negroes above named, be 
solely invested as the property of my said sister, Rosanna 
Shomo, and the heirs of her body. Signed, sealed and de- 
livered this fifteenth day of November, A. D., eighteen 
hundred and twenty-nine. DAVID TATE. 

In presence of 



p. r. turnstall, 
Wm. C. Vaugn. 



I 



384 SFPEEME COURT. 



Maiben, et. al. vs. Bobe. — Statement of Case. 

This deed or bill of sale, was recorded in Alabama, and 
also in Escambia county, Florida, And is the deed under 
which Maiben, who as appears by the record, was appoint- 
ed by the Circuit Court of Baldwin county, Alabama, 
trustee of Mrs. Shomo, claims title. 

Mrs. Eosanna Shomo answers separately and claims, 
that the negro slaves in controversy, were conveyed for 
her separate use. She alleges that the deed of trust was 
recorded in the proper office, shortly after her arrival in 
Florida, and that at the same time, the transcript of the 
appointment of trustee was handed the clerk to be also 
recorded, but he refused to record the same, because it was 
not the original, but a mere copy. 

She further says, that she never made any contract 
of sale of the slaves in question, with complainant, and 
never had any negotiations for tliat purpose. She admits 
that she signed the bills of sale for the slaves to complain- 
ant, but declares that she did so under the. coercion and 
threats of her husband, who stated to her that unless she 
signed the bills of sale, he would run all her negroes to New 
Orieans and sell them; that she never received one cent of 
the purchase money from complainant or any one else. She 
avers that a fraud was perpetrated upon her rights in re- 
gard to said slaves, and that complainant knew that her 
husband, Joseph Shomo, with whom the contract was 
made, had no right to these slaves. That when she 
signed the bills of sale, no question was asked as to her 
willingness to do so, and but through fear of her husband, 
she would have declared her unwillingness when complain- 
ant and his agent, Micajah Crupper, came to her house. 

Joseph Shomo answers and states, that he made the 



ADJOURNED T. AT TALLAHASSEE, 1855. 385 



Maibeo, et al. va. Bobe. — Statement of Case. 



contract with complainant, Bobe, for the sale of the slaves, 
without the concurrence or consent of his wife, and that he 
apprised complainant at the time, he had no title to said 
slaves and told him they were the separate property 
of his wife, in consequence of which complainant bought 
them at about half their value. That the purchase money 
was paid to him, Joseph Shomo, and not to his wife, and 
was applied to his own priviate purposes, his wife not re- 
ceiving or enjoying any portion of it. He admits that his 
wife signed the bills of sale reluctantly, but asserts that no 
fraud was practiced or intended on complainant, who was 
advised of the nature of the title, and who in consideration 
of getting the slaves at half price, was willing to run the 
hazard of a recovery of them by the said Rosanna Sho- 
mo. 

Maiben, the trustee, in his answer, admits his appoint- 
ment as trustee, &c., and declares that the suit at law for 
the slaves, was brought at the request of Mrs. Rosanna 
Shomo, and in discharge of his duty as trustee. 

Micajah Crupper, a witness for complainant, testified 
that shortly after Joseph Shomo came to Pcnsacola with 
his family and negroes, he enquired of witness if he knew 
of any person who would be likely to purchase i5ome of his 
slaves, and witness referred him to complainant. About 
the same time, he presented the conveyance made by 
David Tate to Rosanna Shomo to be recorded, supposing 
witness to be clerk. Witness handed the paper shortly af- 
ter to the clerk, and he recorded it. Complainant asked 
me if I thought the title was good. He came to the office 
and examined the convevance from Tate to Mrb. Shomo, 
and I gave it as my opinion that the title was in Mrs. Sho- 
26 



386 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Statement of Case. 

mo, and was good. I advised complainant to purchase.— 
A few days afterwards complainant came to me and re- 
quested me to draw up a bill of sale, which I did, and at 
his request, I went to Mrs. Shomo's in his company to 
get her to sign the bill of sale. She signed it and received 
the money. Afterwards at tlie instance of complainant, I 
drew another bill of sale for other slaves. On our arrival 
at Mrs. Shomo's, I presented the bill of sale to her for gig- 
nature, and asked her if she knew wliat it was. She an- 
swered that she did, and that it was unnecessary for me 
to read it. She signed it and received the money in the 
presence of her husband and son, without objectioii. 

This witness further says, that he was deputy clerk of 
Escambia Circuit Court. There was no paper presented 
for record, except the deed from David Tate to Mrs. Sho- 
mo. He saw nothing in the deportment of Mrs. Shomo to 
induce the belief that she was coerced to sign the bills of 
sale. 

F. E. de LaRua, another witness for complainant, testi- 
fied that he was clerk of the Circuit Court when the deed 
from Tate to Mrs. Shomo was recorded, and that no other 
paper was presented for record. The deed from Tate was 
handed to my deputy, Mr. Crupper, by Mr. Shomo. 

David Shomo, a witness for defendant, testified that he 
was present when complainant paid for two negroes, pur- 
chased from J. Shomo. The money was counted by Mr. 
Crupper and myself, and was paid to Joseph Shomo. Mrs. 
Shomo was called out of her private room to sign the bill 
of sale, and after signing, retired to her room, leaving the 
paper and the money on the table. No question was ask- 
ed as to her willingness to sign the bill of sale. She sign- 



ADJOURNED T. AT TALLAHASSEE, 1855. 387 

Maiben, et. al. ts. Bobe. — Statement of Case. 

ed it reluctantlv and under the threats of her husband, that 
if she did not sign it, he would sell the whole of them. In 
answer to the cross interrogatories, this witness declares 
that he ifi a son of Joseph and Bosanna Shomo, and was at 
the time of the transaction spoken of, between twenty-four 
and twenty-five years of age; that he knew of Richard 
Maiben being trustee of his mother, and knew of no fraud 
intended to ])e practised on complainant. His mother, Mrs. 
Shomo, was opposed to selling any of the negroes. The 
threats spoken of, were not made in the presence of com- 
plainant, nor in his hearing. He has heard of the sale of 
others of the same lot of negroes, but does not know to 
whom, when or by whom made. 

Joseph Shomo was examined as a witness for defendant, 
who declared that before the sales to complainant, and 
early in March, 1847, he presented the deed from Tate to 
Eosanna Shomo, and the record of the appointment of 
Maiben as trustee, to Mica j ah Crupper, as deputy clerk, 
to be recorded. When Mr. La Eua, the clerk handed mc 
the deed from Tat«, he told me he could not record the 
transcript of the record referred to, because it was not the 
original, but a copy, and he was not authorized to record a 
copy. He also states that Micajah Crupper^ to whom he 
had communicated the fact, knew of the appointment 
of Maiben as trustee. He witness, made the sale to 
complainant and received the money, and not Mrs. Sho- 
mo. 

The court below perpetuated the injunction against the 
judgment obtained by Maiben the trustee, from which an 
appeal was taken to this court. 



388 SUPREME COURT. 

Malben, et al. vs. Bobe. — Opinion of Court 

D. Jordan, for appellants. 

B, D. Wright, for appellee. 

BALTZELL, C. J., delivered the opinion of the court. 

On the 15th of November, 1829, David Tate gave by 
deed properly executed, to his sister, Rosanna Shomo, sev- 
eral negroes with the provision that they were "not to be 
subject to the control, or debts, or contracts of her hus- 
band," and to be solely invested as the property of his 
sister." Tate, his sister, and her husband, at this time and 
for a considerable period afterwards, resided in the State 
of Alabama. The two latter, husband and wife, removed 
to Pensacola, in this State, where a «ale was made by them 
to Bobe, on the 15th day of June, 1847, of negi'o Henry, for 
the sum of three hundred dollars, and afterwards on the 
1st of January, 1848, of negro woman Jents and her child 
Flemming, for the consideration of six hundred dollars. 
Bills of sale were executed in the name of Mrs. Sliomo and 
her husband united in ratifying and confirming the sale so 
far as his interest was concerned. Before removal from 
Alabama, application was made to the Circuit Court of 
Baldwin County, for the appointment of trustees, and 
two, William Waller and Richard Maiben, were appoint- 
ed to take charge of the trust estate for Mrs. Shomo. — 
Maiben as surviving trustee, instituted suit and recovered 
judgment in the Circuit Court at Pensacola, against Bobe 
the purchaser of these slaves, for the sum of sixteen hun- 
dred dollars, to be relieved from which, Bobe filed his bill 
in chancery, and this gave rise to the present controver- 
sv. 

The bill is inartificially drawn, leaving a rood deal to 
inference, and deficient in many material allegations. — 



ADJOURNED T. AT TALLAHASSEE, 1855. 389 



Maiben, et al. vs. Bobe. — Opinion of Court 



The case, however, has been discussed on the merits, and 
we now proceed to consider it in that light, without re- 
gard to the objections that might otherwise be entitled to 
consideration. 

•There has been no question made as to the effect of the 
deed of gift nor has it been denied that a separate estate 
is created by it. The main question then arises as to the 
power of the feme, Mrs. Shomo, to dispose of the pro- 
perty. 

WTiatever difference of opinion there may l)e on the 
subject elsewhere, in Alabama where this deed was made 
and where all the parties resided at the time of its execu- 
tion, there is no diversity. The language of the court 
there is emphatic. "We think the authorities are clear 
that a woman having a separate estate may charge or sell 
or dispose of it at pleasure and without the consent or con- 
currence of her trustee and may make a will of it, if per- 
sonal property at her death, and that a court of law to 
some extent, and a Court of Equity to the fullest extent 
will give validity to her acts. And where a deed, will or 
other instrument creating such separate estate imposes no 
restrictions or conditions on the power of alienation or 
absolute disposition, the law will impose none except such 
as it imposes on the feme sole. In the case of Bradford vs. 
Greenway 17 Ala. 197, this court showed a loaning to the 
English doctrine. The question being now subuiitted for 
decision we shall hold the English and New York doctrine 
which gives to the wife, having a separate estate, the jus 
disponendi, unless the same is taken away or restricted 
by the deed creating the estate." Hoopers Ex. vs Smith 
23 Ala. 643. 



390 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Opinion of Coart. 

There is in this deed of gift of Tate to Mrs. Shomo no 
restriction as to . alienation, no directioa of any kind 
as to the disposition of the property. This court 
having held in the case of a contract made in a sister 
State, that the laws of that State as administered by her 
judicial tribunals must form the rule of its decision, this 
decision of the Supreme Court of Alabama, might well be 
regarded as conclusive as to this point. Watts v^. Clardy, 
2 Fla. 369. 

But we have been strongly urged to assert the South 
Carolina doctrine, as the governing one, to the effect "that a 
married woman cannot part with her separate estate or 
change it in any way without an examination, and tliat 
the power of appointing such estate must be expressly 
given, and the mode prescribed, be strictly persued." Ew- 
ing vs. Smith, 3 Dess. It is not perceived how the decrees 
of the courts of South Carolina can be held to apply to a 
case in which there is no proof that the parties ever lived 
there, or had in view their laws in making the contract. 

Without enquiring at present into the reason of the rule 
let us examine into tlie adoption of it. It was first started 
in the case of Ewing vs. Smith in 1811, 3, Dess. 417, by 
a divided court, three to two, and amongst the cMssentient 
Judges we find that distinguished jurist, Chancellor Dessaus- 
sure, and so the matter stood until 1826, when tlie court of 
appeals consisting of three law Judges and two Chancel- 
lors Dessaussure and Waddy Thompson, all agreeing held 
the following language. " How far a married woman 
may be considered as having the disposition of property 
settled on her for her separate use, is a question which is 
not yet finMy settled in this State. The subject is so fully 



ADJOURNED T. AT TALLAHASSEE, 1855. 391 



Maiben, ef. al. vs. Bobe. — Opinion of Court 

considered in the able opinions in the case of Ewing vs. 
Smith 3. Dess. 417, that we shall not have occasion to resort 
to any other authority. It appears from the cases there 
collected to be the well settled doctrine in England that a 
feme covert has the exclusive right to dispose of 3uch pro- 
perty as is settled to her separate use. From the time of Norton 
vs. Turvill 2 P. Wms., which was decided in 1723 up to the 
case of Ellis vs. Atkinson, 3 Bro. C. C. 565, decided by Ld. 
Thurlow in 1792, being a period of near seventy years, the 
whole current of doctrine is that way. Thero wa^* a sliort 
period of about ten years from the resignation of Ld. Thur- 
low, until Lord Eldon came into office, during wldch time 
Lord Eosslyn and Lord Alvanly seemed disposed to ques- 
tion the correctness of these decisions. But Lord Eldon 
has since recognized their authority and there is now no 
principle better established in the English Courts." Sh. 
Frazier vs. Center &c. 1 McCord Cly 274. 

In this condition the subject remained until 18^6, when 
the case of Reed vs. Lamar announced the contrary doc- 
trine supported by other more recent cases. For the fif- 
teen years preceeding the case of Frazier, and twenty 
years succeeding the case of Ewing, decided by a devided 
court, making a period of thirty-five years, the question 
may be considered as unsettled in South Carolina, her chan- 
cellors and judges being greatly divided about it. L^t us turn 
to the other American courts ; here we find Pennsylvania fa- 
voring this doctrine. Tennessee apparently adopting it in Mor- 
gan vs. Elam, though the case did not call for a decision on 
the point, 4 Yerger, 375, and the judges did not unite in 
this view of it, afterwards asserting the very contrary in 
Powell vs. Powell. " In the absence of any restriction or 



392 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Opinion of Court. 

limitation of appointment, the rule in equity, on the sub- 
ject is that a feme covert, acting with respect to her sepa- 
rate property, is competent to act in all respects as if she 

were a feme sole, 2 Vesy, Sr., 190, H. . .vs. S , 1 B. C.C., 

192 Clancey on Hus. and wife, 282, and this rulc^ has been 
applied to all her dealings on the subject of that property;" 
9 Hump., 480. Reliance is placed on Mississippi as favor- 
ing that view, yet we shall find her courts asserting it on 
the faith of the Tennessee case of Morgan vs. Elam, dnd 
strange to say, a few months only, after that case had been, 
in effect, overruled, and after tlie Supreme Court of Missis- 
sippi had announced an adverse opinion in Frost, &c., vs. 
Doyle, through C. J. Sharky, that "the general rule at com- 
mon law is that a /erne covert having a separai** estate, 
acts with regards to it as a feme sole," 7 Smeed and Mar- 
shall, 75. 

From these conflicting, varying and discordant views, 
we turn to the American courts asserting the right of the 
woman to dispose of her property where there is no re- 
striction in the instrument; and, first, we have the case of 
Jacques vs. the Methodist Church, 17 Johnson, 548, deci- 
ded by the New York Supreme Court, then in its prime, and 
commanding the confidence of the whole nation — a case 
elaborately argued, and of the decision of which the Su- 
preme Court of Connecticut say, "we adopt the English 
rule, not only supported by the highest authority, but be- 
cause we think it also supported by the strongest reasons. 
These are most clearly and forcibly stated by the distin- 
guished judges in Jacques vs. Methodist Chinch. We 
think they are unanswerable, and deem it necessary only, 
to refer to the views expressed in those opinions as expres- 



ADJOUBNED T. AT TALLAHASSEE, 1855. 393 

I 

Malben, et al. vs. Bobe. — Opinion of Coort. 

sive of our own.'* Jenley vs. Huntington, 20 Connecticut 
175. 

The later New York courts hold language fully as deci- 
ded; *^o doctrine is more fully and clearly established than 
that a feme covert, in regard to her separate estate, is con- 
sidered in equity in all respects as a feme sole. The rule 
was first laid down by Lord Hardwick, in Peacock vs. 
Monk, 2 Vesey Sen., 190, and for a long time courts of 
equity seem to have hesitated as to its adoption, and were 
disposed to qualify and restrict its application. No traces 
however, of such hesitation or doubt are to be found in the 
more recent decisions, but on the contrary, they have car- 
ried out the rule in the fullest sense that its terms import ; 
consequently it is now certain that when real or personal 
property is settled to the separate use of a married wo- 
man, her power of disposition or control is subject to no 
other limitations or restraint than such as the terms and 
the settlement plainly impose." Noyes vs. Blnrkman, 3 
Sanf. 540, 17 John. 548; 1 Vesey Jr. 46. 7 Paige 9, 3 
Bro. C. C. 8. 20 Wend. 570; 14 Vesey, 542. 7 Paige 112 
3 M. & K. 220, 1 Sanf. 17, 287. 1 Cr. & Ph. 53. 1 
Beav. 1. 

In Virginia, Maryland, Ohio, Missouri, Vermont and the 
later decisions in Kentucky, we find the same views. West 
vs. West 3 Rand. 373. 2 Leigh 183, 5 B. M. 163, 10 
14 lb. 32p ; Missouri 760. 4 Vert. 336. 10 Ohio 216.— 
Nori;h Carolina is equally emphatic. "In this respect, real 
and personal property differ, for as to the latter the sepa- 
rate estate of the wife includes her jus disponendi, as held 
in Fettiplace vs. Gorges 1 Vesy Jr. 46 and 3 Bro. C. C. 8, in 



394 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Opinion of Court 

which Lord Thurlow explicitly states the distinction be- 
tween the two kinds of property; by saying that where the 
wife makes a voluntary disposition of an estate held to her 
separate use against the heir, it canno^ be carried into 
execution, but with respect to personal property, her giji 
is good" Euffin C. J. Newbin vs. Freeman, -t IredelVB 
Eq. 318. Georgia too is quoted in Hill on ti-ustce? 513 as 
favoring the doctrine. 12, Geo. 200. 

In Alabama we have seen the adoption of the same 
view. 23 Ala. 643. 

In New Jersey, after a very elaborate argument against the 
English doctrine, the chancellor said, "in the midst of 
such conflict of opinions it is clear that we ate left, in the 
determination of the question upon what may appear to 
be sound principles of equity. And I think it may be 
safely said that a feme covert is a feme sole as to her sep- 
arate estate, so far as to dispose of it in any way not in- 
consistent with the terms of the instrument under which 
she holds. Any danger apprehended from such rule can 
be avoided by words restraining the disposition and direct- 
ing the precise mode in which it may be made. 3 Green 
551. 

It is erroneously assumed, we think, that Chancellor 
Kent contended for the strict doctrine when discussing the 
Jacques and Methodist Church case. His main aim evi- 
dently in that case was against requiring strict terms for- 
bidding or directing alienation. " But if the intention be 
equally clear and certain in the instrument in question, why 
should more explicit language be required f" At the 
close of his opinion in summing up the resuU of his 
examination of the cases he says, as to this, "Perhaps we 



ADJOURNED T. AT TALLAHASSEE, 1866. 395 



Malben, et al. vs. Bobe. — Opinion of Court 



may say that if the instrument be silent as to the mode of 
exercising the power of appointment or disposition, it in- 
tended to leave it at large to the discretion and necessities 
of the wife, and this is the most that can be inferred." 3 
Johns Ch. 114. 

How very different is the language of that eminent Ju- 
rist Judge Story whose work on Equity Jurisprudence has 
become a text book to the American lawyer. ^' There is 
no doubt that a gift of personal estate, or of the rent and 
profits of real estate to a married woman for hei* separate 
use during her life would give her a complete power to dis- 
pose of the same.'' 2 Story Eq. 828 30 § 1393. 

Again "it may now be laid down as a general rule 
that all anti-nuptial agreements, for securing to a wife 
separate property, will, unless the contrary is stipulated or 
implied, give her in equity the full power of disposing of 
the same, whether real or personal, by any suitable act or 
instrument in her life time, or by last will in Ihe same 
manner and to the same extent, as if she were a feme sole," 
3 Story, Eq. 837 5 1391. 

*^When a married woman has a power to dispose of 
property, she may execute it in any manner '-apable of 
transferring it. When she has a power only over it she 
must dispose it in the manner prescribed by the power." 
2 Story, Eg. 828 § 1391. 

The English text books use language no less derided. 
"It is settled that an express negative declaration is rei^ui- 
site to deprive a feme covert of her prima facie right of dis* 
posing of her separate estate. Hill on trust, by Wh. 422 ; 
2 Rop. Hus. and Wife 236, 240; Brown vs. Bamfro, 11 
Sim. 131; 2 Chitty Black. 293; n. 12. 



396 SUPREME COURT. 



Maiben, et al. vs. Bobe. — Opinion of Court- 

Xor do we apprehend there is the difficulty about the 
English eases which is assumed to exist as to the poiDt 
under consideration. When the case of Wagstaff vs. 
Smith was argued, not long after the decision of the dis- 
puted cases of Pyles vs. Smith, WTiistler vs. Xewman, 
Hulme vs. Tenant, Peacock vs. Monk, &c., the Master of 
the Rolls expressed himself as follows. "The only question 
appears to me to be whetlier this lady has an absolute 
complete life interest in the dividends to her separate use. If 
she has, then unless the former doctrine of this 6ourt, that as 
to separate property a married woman is to be considered 
a feme sole, is abrogated by later determinations, she had a 
right to make any disposition she thought fit of that sepa- 
rate property. There is no case in which that doctrine 
has been impeached, that is, the broad rule that a married 
woman is to be considered a feme sole as to property to her sep- 
arate use. There are many cases in which the question has 
been whether the absolute property, including a power of 
disposition, was intended to be given, or whether it was a 
personal gift only, without a power of disposition,^^ &c., &c. 
This is very different, here are no words of control, no 
words of restriction. Here are the very words to give the 
absolute property. "The settlement was to trustees to 
permit the feme to take and receive the dividends of 
£750, to her own use during life, independent of her hus- 
band, &c., and she assigned to a third party." 9 Vesey 
520. 

" Executed trusts" says Ch. Kent, "are enjoyed in the 
same condition and entitled to the same benefits of owner- 
ship, and are consequently disposable and devisable, exact- 
ly as if they were legal estates and there rights the 



ADJOURNED T. AT TALLAHASSEE, 1855. 397 

Malben, et. al. vs. Bobe. — Opinion of Court. 

cestui que trust possesses without the intervention of the 
trustee." 4 Kent. 302. 

A trust is executed either when the legal estate passes- 
as in a conveyance to B. in trust, or for the use of C. or 
when only the equitable title passes, as in case of a con- 
veyance to B. to the use of C. in trust for D. The trust in 
this last case is executed in D. though he has not the legal 
estate. 4 Kent. 305. 

Such is the relative position of this subject in the Eng- 
lish and American courts, and as treated by judges, jurists 
and writers of the two countries. 

Were we free to adopt the strict rule with such slight 
authority in its favor, we are yet constrained to say that it 
has not our sanction on the score of principle or analogy 
of propriety or fitness. It restricts the alienation of pro- 
perty. Such restrictions have been condemned from the 
very earliest ages of the law; they were held by I^ord Coke 
to be absurd and repugnant to the freedom and liberty of 
freemen. Chancellor Kent says that "the maxim which 
he Lord Coke cites, contains a just and enlightened princi- 
ple worthy of the spirit of the English law, in the best 
ages of English freedom. Iniquum est ingenuis hominibus 
non esse liberam rerum suarum alienationem. 4 Kent 131. 

Perpetuity tlie condition of an estate being rendered 
perpetual or for any period of time inalienable by the 
act of proprietors. Holthouse Law Diet., 335. 

"A perpetuity is a thing odius in iaw, and destructive 
to the commonwealth. It would put a stop to commerce 
and prevent the circulation of the property of tlie king- 
dom." Vernon, 1G4. "A perpetuity is defined to be where 
though all who have an interest should join in a convey- 



398 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Opinion of Court. 

ance, yet they could not bar or pass the estate. 5 Jacob 
Law Die, 142. 

"Experience says Sir Wm. Blackstone, hath shown that 
property best answers the purposes of civil life, especially 
in commercial countries, when its transfer and circulation 
are totally free and unrestrained." An elegant writer 
speaks on the subject as follows: "The necessity of im- 
posing some restraint on the power of protracting the ac- 
quisition of the absolute interest or dominion over property, 
will be obvious, if we consider for a moment what would 
be the state of a community in which a considerable pro- 
portion of the land and capital was blocked up. That 
free and active circulation of property, which is one of the 
springs as well as the consequences, of property, would be 
obstructed, the improvement of land checked, its acquisi- 
tion rendered difficult, the capital of the country gradually 
withdrawn from trade, and the incentives to exertion in 
every branch of industry diminislied. Indeed such a state of 
tilings would be utterly inconsistent with national prosper- 
ity, and these restrictions wliich were intended 1)V the do- 
nors to guard the objects of their bounty against the effects 
of their own improvidence, or originated in moie exception- 
able motives would be baneful to all." 1 Jarman on Wills, 
219-20. 

The most of the State constitutions seem to have refer- 
ence to this subject, by declaring "that pei-petuties and 
monopolies are contrary to the genius of a free State, and 
ought not to be allowed." Florida Constitution, Article 
second. Section twenty-fourth. Indeed one of the fruits of 
our glorious revolution was connected in some degree in 
the public regard with this question, of unfettering of es- 



ADJOURNED T. AT TALLAHASSEE, 1855. 399 



Maiben, et. al. vs. Bobe. — Opinion of Court. 

tates. Our Legislature seems to have provided against 
this danger, by declaring in the law to secure the rights of 
married women, "that husband and wife shall join in all 
sales, transfers, and conveyances of the property of the 
wife, and the real estate shall only be conveyed by deed 
attested/' Thom. Dig., 221. 

According to the strict doctrine, neither tlie trustee, the 
married woman, nor her husband, nor altoc:ot]ier, can 
alien or dispose of the property, thereby creating a per- 
petuity within the strict definition of the term; nor can it 
be sold, except by the permission of a Court of Chancer}*. 
As a fair consequence. Courts of Equity may be* ctmsidered 
as the owners as far as alienation is concerni^d, h protect 
against bad bargains, in case of necessity to make good ones 
for them. Now admitting this to be a rightful exercise of ju- 
dicial power, which is by no means conceded, the enquiry 
arises, why not go further and protect them as to a dispo- 
sition of the income, and the disbursement of the receipts 
and profits of the separate estate, far more important than 
its mere possession or ownership. 

But again, this restriction upon the rights of married 
women implies a distrust not by any means flattering to 
them or to the other sex. Are those of our state less to 
be trusted or confided in, in this respect than the women of 
England or New York, and other states of the Union where 
freedom of alienation prevails; are they more imbecile? 
have they less character, less self reliance and ability to 
assert their rights, or have those of the other sex greater 
disposition to impose upon, oppress and take advantage o** 
their weakness and infirmities? We think not. If thry 
are unfit to be trusted with powers of alienation, tluir 




400 SUPKEMB COUET. 



Matben, et aL vs. Bobe. — Opinion of Court. 

right of ownership may well be doubted. Their sound 
judgment, good sense, and intelligence, their virtue and 
native energy, with the gallantry and sense of justice of 
the other sex are their surest and safest reliance. 
The world has an experience in its past history, not to be 
forgotten, of the effects of special guardianships of this kind. 
This experience has demonstrated that to hedge their pro- 
perty with restrictions and guards is as important and use- 
less as to surround their persons by stone walls to pre- 
vent injury and insult. We have then the experience of 
the English courts for upwards of a century, and of the 
first and best minds of that country, jurists, judges and 
commentators, in favor of giving this right to married wo- 
men and against the restriction. In a late work of merit 
we have this tribute to the law as thus administered, "On 
surveying the temple of English jurisprudencL we behold 
in it a range of columns which while they impart symme- 
try and beauty to the wliole building, afford it also materi- 
al support. "The laws of property are nicely adapted for 
preserving harmony between the diversified elements 
which constitute the sources of national prosperity, at a 
point where they are most liable to clash, by securing the 
necessary freedom of commerce in the alienation and 
pledge of every species of property on the one hanl, and the 
proper and reasonable regard to private and family pur- 
poses, in the settlement of property on the othev." Lewis 
on perpetuity 4. 

We have in addition to this the vast preponderance of the 
American courts, jurists, judges, and writers in its favor, we 
have the provisions of our own law, fortified by our own 
views of the fitness and propriety of the thing. Can we 



ADJOUBNED T. AT TALLAHASSEE, 1856. 401 



Malben, et aL vs. Bobe. — Opinion of Court 

then hesitate as to its adoption? In doing this we are by 
no means to be considered as adopting the rule to the full 
extent to which it has been carried by the English courts. 
We have purposely avoided the discussion of ot'ner ques- 
tions, having an apparent connection with the one under 
consideration, desiring to confine our decision to the simple 
point presented as to right of alienation, where there is no 
restriction or direction in the instrument creating the 
separate estate. One other remark in connect ioD with the 
ease; it will be seen that as alienation is not permitted by 
the trustee according to the Carolina rule, a suit at law to 
recover damages as a substitute for the property, affirm- 
ing as a consequence, its sale at the option of the trustee 
is also inadmissible. But aside from this, what disposition, 
is to be made of the money when obtained by tb.c judge- 
ment? Is this to paid to the feme? If paid to her, has 
she power over it and to what extent? If paid to ihe trus- 
tee, how is he to dispose of it ? 

Mrs. Shomo charges that the sale was made tlirough the 
improper influence and coercion of her husband; andoubt- 
edly, if this is the case, the court without hesitancy would 
refuse the plaintiff tlie relief asked, and the court would 
scrutinize, very carefully and cautiously, the net to ascer- 
tain that it is not liable to that objection. 

She charges that "her husband informed her unless she 
signed the bills of sale he would run all t]ie r.ogroes to 
New Orleans and sell them, for he had the advantage of 
her and would use it and do just as he pleased. She was 
well convinced he would do so and she would never know 
where they were. As she was thus compelled to sign the 
bills of sale or have all her negroes run off, she I bought if she 

27 



402 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Opinion of Court 

signed in Pensacola slie could afterwards recover them by 
law in our courts/' She states further that "a short time 
previous to the sale of these negroes her husband took a 
valuable female slave of hers in open defiance of her, and 
placed her on board of a vessel to be shipped to New 
Orleans for sale when a friend of her, Mrs. "*.Velhorne in- 
terposed in her behalf and prevailed on her husband to 
bring her back.'' 

The testimony shows that other negroes of hers were 
mortgaged to Moreno and sold to Caldwell and Jeraison. 

She complains that a fraud was perpetrated upon her 
rights by her husband and said Bobe; knowing that her 
husband had no riglit to these slaves, he Bobe imjustly for- 
bore to ask her if she was willing to sell them, had he 
done so she would have told him that she was nol willing 
to sell tliem, and but for her husband's threats she would 
have declared her unwillingness when Complt. and his 
agent came to her house." Her account of her signing the 
bills is as follows: "He informed her that on a certain day 
Bobe would come to the house with others^ to have the 
bill signed. When he came with the bill of sale of Jints, 
one Mr. Crupper came along. This respondent was called 
out of her private room by her husband into the presence 
of these gentlemen. Crupper drew out of his hat or pocket 
a paper and asked if she would read it, she knowing what 
they had come for said he need not, it was then handed 
to her and she signed it. No questions were asked her if 
she was willing to sign. The money was paid to or re- 
ceived by her husband, and she withdrew." 

It no where appears by the testimony of oither Shomo 
or his son, nor by any allegation of Mrs. Shomo that Bobe 



ADJOURNED T. AT TALLAHASSEE. 1855. 403 



Malben, et al. vs. Bobe. — Opinion of Court 

had any information or knowledge of his unwillingness 
or coercion, so that there is no reason nor cause for the 
allegation of fraud as to him, on the contrary he appears 
to us as a purchaser for a valuable consideration without 
notice as to this objection. 

There is neither justification nor excuse in our opinion 
for the conduct of Mrs. Shomo in this matter. That she 
feared wrong or injury from her husband is no icason why 
a stranger should be wronged. The apprehension of loss 
of property by her does not justify her in transferring the 
loss to him, nor does there seem to have been a necessity 
for such action, as by her own statement, a fri^^nd inter- 
fered on a prior occasion; why not resort to tlJs expedient 
when a necessitv existed for it at another time. But she 
seems to have relied upon the courts in suppoi't of her 
rights; why not appeal to them in the first instance in time 
to arrest the danger? Why wait until an innoct-nt party 
had bought and paid his money for the property, to com- 
mence upon him and try the experiment of getting a 
double price for herself and family. If this and other pur- 
chases are to be disturbed, a handsome speculation will be 
made by her silence, and the confidence reposed in her and 
her family, to enure to their joint benefit. There is ano- 
ther fact to be borne in mind altogether inconsistent with 
fair dealing, and with this idea of coercion. One of these 
negroes was sold in June, 1847, the other in Januar}'^; 1848, 
and during this time Mrs. Shomo admits she traded at the 
store of Bobe; now why not inform him of the fact of this 
constraint and coercion, and admonish him not to buy 
again? Married women are entitled to the peculiar re- 
gard of Courts of Equity, but it is when they present a case 



404 SUPREME COURT. 

Malben, et. al. vs. &obe. — Dissenting Opinion. 

of fairness and of equity, free from unfair dealing and im- 
propriety. We are rather inclined to the opinion that the 
defence of this party, Bobe, might have availed him at law. 
Such we understand to be the decision in 3 Hill 249, Ford 
vs. Caldwell. We have not this case before us and do 
not decide the point, nor is it necessary as already inti- 
mated the case has been presented on the merits without 
objection on such grounds. 

The decree of the court below will be affirmed with 
costs. 

DuPONT, J., delivering the following 

DISSENTING OPINION. 

I am constrained to dissent as well from the view which 
the majority of the court have taken of the law and the 
facts of this case, as from the judgment which has been 
rendered therein. The main point which has been so ela- 
borately discussed in the opinion delivered by the Chief 
Justice, is not a new one. It engaged the attention of the 
English Court of Chancery at an early day; aud there is 
no subject, perhaps, in the entire range of English juris- 
prudence which has been productive of more perplexing 
anxiety or painful solicitude. The very frequency of its 
occurrence in the English Courts, conclusively demonstrates 
the fact, that the judicial mind of that country has failed 
thus far, to find a satisfactory foundation upon which to 
rest, and I have the authority of Chancellor Kent for say- 
ing, ^*that the English decisions, (on this subject,) are so 
floating and contradictory, as to leave us the lilwit}' of a- 
(lopting the true principle of these sentiments.^' In this 
estimate of the English decisions. Chancellor ITarper also 
concurs. In the case of Reid vs. Lamar, (1 Strob. Eq. B., 



ADJOURNED T. AT TAIjLAHASSEE, 1855. 405 

Maiben, et. al. vs. Bobe. — Dissenting Opinion. 

39,) he took occasion to remark as follows: "I need not 
do that which has been done before bv abler men, com- 
pare and collate the cases, (though I have examined many 
of them,) with a view to show that they are unentain and 
contradictory between themselves, many of them refera- 
ble to no fixed principle, and a source of embarrassment 
and regret to the ablest Judges who have administered the 
English Chancery law/' 

In the face of the scrutinizing examination which these 
two lights of American Ch. Ju., have given to the de- 
cisions of the English Courts, it would seem to lie a work 
of supererogation, if not vanity, to attempt to tread the de- 
vious windings of that massy labyrinth, whence they have 
Bo recently emerged, with any expectation or even hope, of 
being able to make any further contribution to the cause 
of legal science. We may well be satisfied with the fidel- 
ity of their efforts, and content ourselves with the fruit of 
their researches. 

Notwithstanding, however, the fluctuation of the Eng- 
lish cases with respect to this subject, it must be admitted 
that the current of the decisions tends pretty conclusively to 
the establishment of the position, "that a feme covert acting 
with respect to her separate property, is com pet- -nt to act 
in all respects, as if she were a feme sole." This io the doc- 
trine announced in the case of Peacock vs. Monk, (3 Vesey, 
190,) and again approved and acted upon bv Lord Thur- 
low in the case of Hulme vs. Tenant, (1 Bro. C. C, 16.) 

This doctrine, as thus broadly Jaid down, has been a fruit- 
ful source of embarrassment to the Englisli Oiar-ocllors, so 
much so indeed, as to have caused Lord Thurlow upon one 
occasion to declare, that in enforcing the doctrine, he acted 



406 SUPBEME COUBT. 



Maiben, et al. vs. Bobe. — Dissenting Opinion. 

upon the authority of the prior eases, and directly against 
his own inclination and judgment. He further remarked 
*^that if the point were open, he should have thought that a 
feme covert, who had a separate estate, should not part 
with it, without a judicial examination,^* and Ix)rd Eldon 
himself, did not hesitate to expose the injustice and unrea- 
sonableness of the doctrine, and is made to declare in Sper- 
ling vs. Rockfort, (1 Vesey, 164,) that although he could 
not reconcile all that was said by Lord Eoslyn, in Whistler 
vs. Newman, to former cases, yet he wished th»t the law 
might turn out for the protection of married women, to the 
extent to which it is there represented. Lord Alvanly, (as 
master of the Rolls,) in the case of Sackett and Wife vs. 
Wray, (4 Bro. C. C, 483,) held that in reference to the 
separate property, the wife had no disposing power, but 
what was given her by the deed of settlement, and he 
meant to question the decision in Xewman vs. Cartony, and 
Ilulme vs. Tenant, Ellis vs. Atkinson, and Pvbiis vs. 
Smith. 

Lord Roslyn was also strongly opposed to the doctrine, 
and upon several occasions manifested his entire dissent 
from the extreme length to which it had been carried in 
some of the decided cases. In the case of Wli'stler vs. 
Newman, (4 Vesey, 129,) he exposed its utter nakedness by 
remarking, that the doctrine in Hulme vs. Tenant, took a- 
way all protection from married women, and made trusts 
for their benefit of very little importance. That if this 
rule in that case, and in Pybus vs. Smith, and Ellis vs. At- 
kinson, was to be pushed to its full extent, a married wo- 
man having trustees and her property under the administra- 
tion of Chancery, was infinitely worse off and more unpro- 



ADJOUENED T. AT TALLAHASSEE, 1855. 407 



Malben, et. al. vs. Bobe. — Dissenting Opinion. 

■ 

tected than she would be if left to her legal rights, which 
the husband cannot proprio mariti affect. And even in the 
case of Hulmes vs. Tenant, which is a leadiner case for the 
support of the doctrine, Lord Bathurst at first lisnussed the 
bill, but it was afterwards sustained by Lord Thurlow upon 
a rehearing. 

In the midst of this fluctuation of decisions, discrepancy 
of opinions, and expressions of regret, it certainly could 
not have been deemed either rash or presumptuous in us, had 
we elected to discard in a measure, the auiliorily of En- 
glish precedent, and invoked the surer guide of sound rea- 
son, common sense and common justice. And il.is election 
we might the more readily have made, in consideration of 
the fact, that this case presents for the first time in the 
judiciary history of our State, a suitable opportunity to ad- 
judicate authoritatively, the point now under consideration, 
and we were consequently, in a measure relieved from the 
pressure of "stare decisis," at least to the extent of our 
own adjudications. 

Again, we ought to have been admonished by tl.o painful 
embarrassments which are constantly experienced by the 
English Chancery, in the application of the doctrine as it 
seems to have obtained there, of the importan:e, in setting 
out upon our judicial career as a State, of placing the law 
upon the immutable basis of correct principle. 

But had we no other apology for this seeming disregard 
of precedent, the delicate relation which as men we bear 
to the very interesting class of society, who are more par- 
ticularly interested in the question, ought to afford a suffi- 
cient motive. It would be monstrous indeed, that when 
upon every other subject that affects the interests of men. 



408 SUPREME COURT. 



Malben, et al. vs. Bobe. — Dissenting Opinion. 

the law is continually changing to meet the progress of 
advancing civilization, upon this the most intei^sting of 
all subjects, and in reference too to a class of society who 
have kept even pace with the utmost progress of the age, 
it should be decreed to be as' fixed and unalterable as is 
"the law of the Medes and Persians/^ Without intending 
to question the gallantry of the old English Chancellors, I 
may venture to assert that the sentiment that "it wai 
against common right that the wife should have a separate 
property from her husband,ancf therefore all reasonable intend- 
ments were to be admitted against her," would scarcely find a 
response at the present day; and yet such is the reported 
language of Lord Macclesfield, in 2 P. W. 82, and Lord 
Talbot seems to have been equally exacting with reference 
to the ladies of his day, for in one of the cases iecided by 
him, (9 P. W. 355,) he is made to declare "that though the 
husband settles an annuity in trust for his wife's separate 
use, yet if he provide her with clothes and other necessaries 
it will for the time be a bar to anv demand for arrears." 
Chancellor Kent, with his probing scrutiny, seenis to have 
penetrated the true secret of this doctrine as it obtained in 
the English Courts, and intimates quite strongly that it 
might have originated and found its sanction in the spirit 
of the age. He remarks, (3 John. Ch. R. 29,) "Such strong 
aversion to the wife's independent enjoyment of her sepa- 
rate estate, manifested so early in the history of the cases, 
may have given a permanent tone and color to the doctrine 
of the court; and perhaps the language of these cases will 
not now be thought to be founded in equity and justice." 

The fundamental error of the reasoning upon \7hich the 
English doctrine is based, consists in the assumplion that 



ADJOURNED T. AT TALLAHASSEE, 1855. 409 



Malben, et al. vs. Bobe. — Dissenting Opinion. 

the settlement to the use of the feme covert, carries with it 
all the incidents of absolute ownership, of which the jus 
disponendi is the most prominent. Vide Fett iplace vs. 
Gorges — 1 Vesy, Jr., 46. This assumption with respect to 
ownership, is clearly without any good foundation, when 
sought to be applied to the rights, powers and capacities of 
married women; for being purely a doctrine of the com- 
mon law, it can by no principle of sound logic be made to 
bear upon a class, who by the canons of that very system 
are placed under disabilities as to ownership. Again, where 
there are trustees appointed to protect the trusts, it is very 
clear that the legal title to the property resides in the 
trustee, and in no one else; how then can the cestui que 
trust assume to convey that legal title, when shr has only 
an equitable interest. And yet to sustain ihe principle 
of the English cases, it would seem that she must have the 
capacity to convey the legal title, for this is one of the 
"incidents of ownership.^^ Now, in the cas»i supposed, 
viz: where there is the intervention of a trustee, can she 
convey the legal title — can she convey that whioh she does 
not possess? And yet without the conveyance of fhe legal 
title, there is no full exercise of the jus disponendi, and 
consequently the reasoning must fail upon ever^ principle 
of sound logic. But to demonstrate more conclusively the 
fallacy of this doctrine when tested by a practical illustra- 
tion, let us suppose the feme covert (being by the terms of 
the deed of settlement a cestui que trust) exercises to the 
full extent her jus disponendi, what interest has the pur- 
chaser obtained? Evidently only such as resided in her at 
the time of the sale, viz: an equitable interest, and the 
legal title remains undisturbed. But a complete litle must 



410 SUPREME COURT. 



Maiben, et al. vs. Bobe. — Dissenting Opinion. 

embrace both the legal and equitable intei-est: and yet 
such a defective disposition as this, is assumed to be the 
practical enjoyment of one of the principle incidents of 
property. If any further argument were necessary to es- 
tablish the fallacy and utter unsoundness of the position, I 
think it may be found in the painful embarrassments that 
have constantly met the English Chancery Courts at every 
step that they have taken to give it a practical apDlication. 
It may be truly said that the practical applicutiou of tliis 
doctrine has been made amidst the wailings and lamenta- 
tions of the English Chancellors, from the tiue of Jjord 
Thurlow to the present day. 

The foregoing reasoning is equally applicable to the 
case where there is, by the terms of the deed, no interven- 
tion of a trustee, but the property is made to ve?t wholly 
and directly in the feme covert for her separate use. For 
even those courts which have most strenuouslv sustained 
the English 'doctrine, all (with a solitary exi^ej^tlon so far 
as I am advised) admit that the appointment of a trustee 
is not indispensable to sustain the trusts for the separate 
use of the wife, but that where the appointment has been 
omitted in the deed of settlement, the husband will be con- 
verted into a trustee, pro hac vice. Bennett vs. Davis, 2 P. 
W. 316; Parker vs. Brook, 9 Vesey 583; Bich vs. Cockell, 
9 Vesey 369 ; 2 Story's Eq. Ju., section 1380. 

Lord Brougham in Murry vs. Barlee (3 My. and K. 209) 
observes as follows: "That at law, a feme covert cannot 
in anv wav be sued even for necessaries, is certain. Bind 
herself or her husband by specialty, she cannut; and al- 
though living with him and not allowed necessaries, or 
apart from him, whether on an insufficient allowance or 



ADJOUBNED T. AT TALLAHASSEE, 1855. 411 

Maiben, et al. vs. Bobe. — Dissenting Opinion. 

an unpaid allowance, she may so bind him thst tliose who 
furnish her with subsistence may sue him, yet even in re- 
spect of these, she herself is free from all suit. This is 
her position of disability or immunity at law, and this is 
now clearly settled. Her separate existence i^ not con- 
templated — it is merged by the coverture in thai of the 
husband, and she is no more recognized than is Hie cestui 
que trust, or the mortgagor; the legal estate which is the 
only interest the law recognizes, being in others. But in 
equity, the case is wholly different. Her separrite exist- 
ence both as it regards her liabilities and her rights, is 
here abundantly acknowledged — not indeed that her person 
can be made liable, but her property may." His Lordship 
goes on further to say: "In all these cases I take the foun- 
dation of the doctrine to be this: the wife has a separate 
estate, subject to her own control, and exempt from all 
other interference or authority. If she cannot e[Tcct it no 
one can, and the very object of the settlement wluch vests 
it in her exclusively, is to enable her to deal wi;h it as if 
she were discovert." 

With the utmost respect for, and deference to t'-e opinion 
of this eminent jurist, I cannot but think that he has fallen 
into two very manifest errors in regard to this subioct. It 
certainly cannot be insisted with any show of truth, that 
the "object" of these settlements to the separate use of 
the wife, is to give her the uncontrolled disposal of the 
subject matter of the settlement. I should rather incline 
to the opinion, that the real object is such as i«» generally 
expressed on the face of the settlement, viz: the enjoyment 
of the use. But this certainly does not imply the right to 
part with or dispose of the property so settled. The en- 



412 SUPBEME COURT. 



Maiben, et al. ys. Bobe. — Dissenting Opinion. 

joyment of the use may clearly exist without the right of 
disposal. His Lordship seems to base his argument upon 
the further assumption, that because these settlements are 
the creatures exclusively of equity, therefore the common 
law disabilities of the wife are removed, and that she is 
restored to all the powers and capacities of a feme sole; 
but I confess that I am unable to perceive the legitimacy 
of the deduction. 

Upon every principle of sound logic, enlightened policy 
and strict justice, I am of the opinion that in tl:e converse 
of the position assumed by the majority of the English 
cases, (which position lias been adopted by the majority of 
this court in the present case,) is to be found in ti.e correct 
doctrine in regard to this subject. While they apsume that 
a married woman in respect to her separate estate is to be 
regarded as a feme sole, with the absolute dojninion or 
power of disposal over it, except in so far as that power 
may be restrained by the terms of the deed or will under 
which she became entitled to it, I hold that sLo has no 
power to sell or dispose of her separate estate, but what 
is specially given to her by the very terms of tlie instru- 
ment under which she claims. 

In arriving at this conclusion I feel that I but ..onsult the 
true interests of her who occupies in society a position no 
less interesting than responsible — ^the wife and molher. So 
far from curtailing her rights, I desire but to add to them 
by shielding her from the improvidence and not unfre- 
quently the brutality of the sterner sex. By the adoption 
of this rule, we would give to marriage settlements their 
true character, and make them what they were intended to 
be — a protection against the undue influence of the hue- 



ADJOURNED T. AT TALLAHASSEE. 1855, 413 

Maiben, et aL vs. Bobe. — DlBsenting Opinion. 

band, and a sure guaranty for the comfortable maintenance 
of the wife. 

It is insisted, however, by the majority of the court, that 
our recent legislation in regard to the property of married 
women indicates very clearly the tendency of tl'»e legisla- 
tive mind in favor of the adoption of the English doctrine. 
That the effect and tendency of the act usually denomina- 
ted the '^Married Woman's Law," is to free the property 
of the wife from the shackles which had been thrown 
around it by the canons of the common law, by g^'ving her 
the right, with the concurrence of her husband, to dispose 
of it absolutely; and that this is demanded by the com- 
mercial spirit of the age. 

With all proper respect for the superior intelligence of 
my associates, I am constrained to differ from t'lem, both 
as regards the indications of the legislative mind and the 
practical effort of the act itself. It does not admit of a 
doubt, that the prime object of that act wan to secure to 
the wife the title to her personal property. At common 
law, the personal estate of the wife, vested absolutely in 
the husband, and became subject to his control and dispo- 
sal; and the statute was necessary to obviate anl prevent 
that result, and to secure the legal title and the enjoyment 
of the property to the wife. This was the whole object 
and intention of the legislature in making that enactment. 
Xor is the practical effect of the statute such as the ma- 
jority of the court seem to suppose it to be. So far from 
relieving the disposal of the property from embarrassment, 
it but adds to that embarrassment, by requiring t^ e concur- 
rence of two minds, where only one was before necessary. 
For as by the common law, the personal estate of the wife 



414 SUPREME COURT. 



Malben, et al. vs. Bobe. — DisseDting Opinion. 

vested absolutely in the husband jure marid, he might 
therefore dispose of it at his mere will and pleasure, inde- 
pendent of her wishes; but now by the statute, tie title to 
the property being secured to the wife, the st;itute pro- 
vides that no disposition shall be made of il, but by the 
joint act and concurrence of the two. 

If it be the intention of the court to apply ilie argument 
to property situated as this is, viz: propert} spftled by 
deed or will to the separate use of the wife, I will only re- 
mark, that it is by no means clear that the provisions of 
the act were intended to reach that class of estctes. The 
stipulations of the trusts contained in the settlcnK-nt would 
certainly prevail, independent of the provisions of the 
statute. Indeed, if any deductions applicable to iliis dis- 
cussion are to be drawn from the spirit of the act, it seems 
to me that I am strongly sustained in the view which I 
have taken of the law on this subject. It is admitted by 
all of the English Chancellors who have discussed this 
sul)iect that the doctrine which I advocate, alTords the 
more ample protection to the rights or the wife, and the 
statute certainly gives her rights, which she did not pos- 
sess at common law, by protecting her persona! property 
against the marital rights of the husband. 

It may with some show of plausibility be repb'ed. that 
the beneficent arm of equity is ever prompt to protect the 
weaker from the improper influences of the stronger; but 
there are many considerations why a resort to tins source 
of protection, should be avoided, if possible. In the first 
place, the very act of applying to a court of equity for the 
redress of her grievances, is well calculated to engender 
discord and strife in the domestic circle, which not un- 



ADJOUBNED T. AT TAIJAHASSEE, 1855. 415 



Maiben, et aL vs. Bobe. — Dissenting Opinion. 



frequently result in the entire disruption of th? connubial 
tie. But even should resort be had to the protection of the 
court, how and by what means shall the unfortunate wife, 
establish her allegations of the exercise of an due influence 
on the part of the husband? What witness is to be found 
sufficiently acquainted with the private relations of the 
parties, to be able to drag from its secret reces'^es the re- 
quired evidence? 

The case of Grigsby vs. Cox (1 Vesey 517^ furnishes a 
strong and melancholy illustration of the views which I 
am now endeavoring to enforce, and should admonish us 
of the danger of adopting the doctrine of the En<(li&h cases 
which allows the wife, the full dominion over lier separate 
estate. In that case there was a marriage sott^'ment of 
an estate, in trust for the wife, to receive tlio rents and 
profits for hep separate use, and as she should direct and 
appoint. There was no form of appointment nientiqned. 
She by deed of appointment sold a part of tho esfatc, with- 
out consulting her trustee, and with the concurrence of her 
husband. The answer of the wife in that case (vidp Belt's 
Supplement 218) averred that she had executed t'le deeds, 
under the threats and compulsion of her husband : but the 
answer was unsupported by proof, and Lord TTardwicke 
held the purchase to be valid, and the consent of the trus- 
tees not necessary. 

But it is not alone against the brutal threats of an un- 
feeling husband, that the wife is to be protected. The dan- 
ger more frequently arises from the love, affection and mu- 
tual confidence, which ought always to characterize that 
delicate relation. To her who has been willing to aban- 
don the cherished home of her childhood, the loved scenes 



416 SUPREME COUET. 



Malben, et al. vs. Bobe. — Dissenting Opinion. 

of joyous youth, the sacred associations of friencls and re- 
lations, the warm embraces of father and mother, to 
cleave to the object of her heart's devotion, the sacrifice 
of property, interposes but a feeble barrier to a ijonipliance 
with his behests; and thus the holiest impulses of her 
generous and confiding heart, are often converted into the 
deadliest foe to her domestic peace. In obedience to these 
generous impulses, she consents to strip herself of the com- 
fortable support, provided by the provident solicitude of an 
affectionate parent, and is thrown with the pledges of 
connubial love, a hopeless pensioner upon the eold charity 
of the world. Doomed to a life of penury and want, she 
lingers out a miserable existence, which is to terminate 
only in crushed pride and blasted hopes! It is against 
consequences like these that I would interpose tl e barrier 
of the law; and I think that the object can be attained, 
only .by leaving the power and capacity of the married 
woman, in respect to her separate estate, precisely where 
the common law in its wise benificence has plaood it, iVw- 
biliiy to bind herself hy contract, 

Xor am I without autlioritv of the verv hic]r]:» .-t charac- 
ter to sanction the view which I have felt myself con- 
strained to take in regard to this very intertsiirig subject. 
Such has been the established doctrine, from an early 
date, in two of the oldest and most respectable States of 
the Confederacy; South Carolina and Pennsylvania, and 
such too is the current of decisions in Tennessee jind Mis- 
sissippi. Indeed, it is asserted by Chancellor Kent 
(vide 2 Kent's Com. 165, note a) that tliis may now 
be considered as the sound and prevalent American doc- 
trine, and contra-distinguished from that of the English 



ADJOURNED T. AT TMILAHASSEE. 1855, 417 



Maiben, et al. ts. Bobe.— ^Dissenting Opinion. 



Courts; and in this assertion he is sustained by Ihe very 
,ble editors of White & Tndor's leading cases in equity. 
^ide Vol. 1 p. 405. This doctrine was first nutl ovitatively 
innounced to be tlie law in South Carolina, in the case of 
Cwing vs. Smith, (3 Dess. Eq. R. 417) and it has been 
trictly followed ever since, in that State. Chancellor 
larper in allusion to that case {vide Reid V3 liamar 1 
Jtrobh. Eq. R. 37) says: "If any thing can be considered 
ts settled, it is the settled law of this state, thnt when pro- 
yerty is given or settled to the separate use of a niarried wo- 
nan, she has no power to charge, encumber or . I impose of 
t, unless in so far as power to do so has been conferred on 
ler by the instrument creating her estate, wlpoh power 
nust be strictly pursued, in contradistinction to many Eng- 
ish cases, in which it has been held that she is a feme sole 
^th respect to her separate property, and may charge and 
iispose of it as she pleases, unless in so far as the is ex- 
pressly restricted by the instrument. This has Wen the 
settled law since the decision in Ewing vs. Smith, followed 
by a great number of cases decided in conformity to it, for 
a period of more than thirty years, and without any deci- 
sion impugning or conflicting with it.*' 

In the case of Lyne's Executor vs. Crouse ct al (1 Barr 
R. 114) decided by the Supreme Court of Pennsylvania, 
the court remarked as follows: "In Lancaster vs. Dolan, 
1 Rawle, it is laid down as the rule, that a mnrried wo- 
man has no power but what is expressly given. In the 
case of Thomas vs. Folwell 2 Wharton, this nile i& recog- 
nized as the settled law in Pennsylvania: "That a married 
MToman is to be deemed to possess no power in respect to 
ler separate estate, but what is positively given or re- 

28 



418 SUPBEME COURT. 



Malben, et al. vs. Bobe. — Dissenting Opinion. 

served for her by the instrument creating su«.-h estate. 
Several other decisions of a later date recognise this doc- 
trine. So, that whatever may be the law in otlier States, 
or in England, we must take the rule here indicated with 
so much conformity, as the law of this State; besides, this 
rule has the merit of substantial justice to support 

This doctrine has been very elaborately discuss«»d in the 
Supreme Court of the State of Tennessee and with the 
same result. In the case of Morgan vs. Elam, (1 Yerger 
R., 434,) Wliyte, J., remarked in delivering hi? opinion: "I 
must confess that after the best examination that my very 
slender abilities permit, if it were necessary by the facts of 
the present case, to express an opinion decisively on this 
much controverted subject, I at present would «ay, that 
upon the principles upon w»liich the doctrine is professed 
to be founded, and even upon the principles assigned in the 
cases, favoring the enlarged powers of the fetne covert, as 
the ground of such determination, according to my under- 
standing of them, but above all, from the very moving 
cause and design of a settlement upon a feme covert, her 
restricted powers as laid down in the settlement itself, 
ought, according to the plain intent therein and thereby ex- 
pressed, to give the rule, and measure its extent; rejecting 
the subtleties of wiredrawn though able disquisition, and 
the entanglement of disputation, enquiry and investiga- 
tion." 

Green J., in his opinion delivered in the same case, re- 
marks: "I regard this question as being unsettlcl in this 
country, and this court is under no obligation from a con- 
current course of legal adjudication, to sacrifice principle to 



ADJOURNED T. AT TALLAHASSEE, 1855. 419 

Malbeii» et al. ys. Bobe. — Dissenting Opinion. 

precedentL.'^ In allusion to the argument used by Judge 
Piatt, in his opinion in the case of Jacques vs. the Metho- 
dist EpiscopaJ Church, (17 John R., 548,) to the effect 
that it is for the interest of society that the common law 
rule, that the husband becomes owner of all the wife's per- 
sonal estate should prevail, and tliat tlierefore, it is best 
that such rule of construction should be adopted, as will 
enable the husband by the consent of his wife to possess 
himself of her estate, His Honor denounce<l it in the strong- 
est and most indignant language. "This argument," (says 
he,) "is as defective in morals, as it is in sound legal prin- 
ciple. It defeats the prudent foresight of the settler, by 
enabling the husband and the wife to make a disposition of 
the estate, which the deed was specially intended to prevent ; 
and at the same time it holds out an inducement of the 
strongest character for the husband to use undue means to 
obtain for liimself his wife's estate." In commenting up- 
on the various influences which may be brought to bear 
npon the wife, he exhibits the dangerous character of the 
English doctrine, in language as beautiful and chaste as 
it is just and true. "Surely, he remarks, a just regard for 
the morals of societv and an honest fulfillment of the in- 
tention of the grantor, alike demand tliat the powers of a 
married woman over her separate estate, shall not extend 
beyond the plain meaning of the deed creating the estate." 
The i-esult of his investigations in regard to this subject, is 
couched in the following language: "As by the common 
law rule, the existence of the wife is suspended during 
coverture, and she is rendered incapable of making any 
contract, it would seem to follow that when separate rights 
and distinct powers are conferred on her by a deed of mar- 



420 SUPREME COtlRT. 

M«lb0n» et Al. tb. Bobe. — Disseotlng Optnlml. 

liage settlement, that such deed ghould be so eonstrned as 
to give her none of the powers of a feme gole, other than 
those expressly conferred by it." Catron, C. J., also concor- 
red with Whyte and Green, remaking, "what the English 
doctrine is on the subject, it is difficult to ascertain. The 
decisions are so confused and repugnant, tliat Lord Eldon'e 
complaint in Sperling vs. Rochfort, is most true, that upon 
all the cases taken together, it is utterly impossible to know 
the result." 

The doctrine as thus announced, was emphatically ap- 
proved in the subsequent case of Litton vs. Baldwin^ (8 
Humph. R., 209.) 

But it is asserted by the C. J. in the opinion delivered in 
this case, that the case of Morgan vs. Elam and Litton 
vs. Baldwin, have been overruled by the subsequent case 
of Powell vs. Powell, (9 Humph R. 477,) and that the 
English doctrine now prevails in the State of Tennessee. 
This, in my opinion, is mere assumption. It is only neces- 
sary to refer to the case of Powell vs. Powell to perceive 
tliat the question now under discussion did not ariae, even 
incidentally; and the loose remarks of Turley, J. in appro- 
bation of the English doctrine, must be considered in the 
light of mere diHa, and by no means entitled to the im- 
port^noe sought to be given to them. He does not refer, 
or even allude to either of thcFe caws, but ba«fi his re- 
marks exclusively upon the doctrine as announced in Pea- 
cock vs. Monk and Hulme vs. Tenant. The fact is, that 
His Honor seems to have been either ignorant of, or had 
forgotten the fact, that the point had ever been decided by 
the Supreme Court of this State. His remarks were evi- 
dently the result of inadverienre. It would indeed be a 



ADJOUBNED T. AT TALLAHASSEE, 1865. iftt 
MHMii, et «i. rt. Bobe. — t>tMeii(iiig optam. 

^■^^-^—i ^i^-^— ^^»^— »i— I I ■ i*-^^^— I ■ 

case imbeard of, that so important a doctrine shotdd be 
deemed to have been overruled, when the cases establish- 
ing it were not even alluded to. The only questions arising 
in the case of Powell vs. Powell, and the only ones which the 
court pretended to decide were, whether a direct convey- 
ance from husband to wife, made upon a valuable consid- 
eration, would be sustained in equity, and whether the 
relinquishment by the wife of her right of dower in real 
estate, amounted to such a valuable consideration. Both 
of these questions were decided in the af firni.iti ve, and 
this is the entire sum and substance of that cas3. I haz- 
ard nothing in asserting that the doctrine contained in the 
case of Morgan vs. Elam, has been the settled law of the 
State of Tennessee from the date of that case to the pres- 
ent time. 

The same doctrine was held in the Supreme Court of 
the State of Mississippi in the case of Doty et al. vs. 
Mitchell, (9 S. and M. 435,) and referred to and affirmed in 
the subsequent case of Montgomery vs. the Agricultural 
Bank (10 S. and M. 566.) 

Whether any of the other States of the Confederacy 
have adopted this view of the law, I have been unable to 
ascertain, not having had sufficient access to the reports of 
their decisions to be able to determine. 

I do not feel that I should be justified in dismissing this 
subject without a more special reference to the very able 
and lucid opinion of Chancellor Kent, delivered in the case 
of the M. E. Church vs. Jacques. It is true thai this case 
was overruled on appeal to the Court of ErT'orf? of New 
York; and while it can be of no authority in thnf State, 
yet it will not fail to commend itself to our most respectful 



422 SUPREME COURT. 



Maiben, et. al. vs. Bobe. — Dissenting Opinion. 

consideration, as well from the high character of its author, 
as from the critical analysis, the broad and expansive 
views, and the logical argument with which t?e opinion 
itself abounds. As a contribution to legal science, it may 
well rank amongst its proudest trophies. The opinions of 
such a man are surely entitled to the utmost c(jnsideration, 
and I may therefore be pardoned for citing, sojnewhat at 
length, his remarks with respect to the result of his investi- 
gations into this very interesting question: "T apprehend," 
says he, "we may conclude (though I certainly do it with 
unfeigned diffidence, considering how great talents and 
learning, by a succession of distinguished men, have been 
exhausted upon the subject,) that the English decisions 
are so floating and contradictory as to leave us the liberty 
of adopting the true principle of these settlements. In 
stead of holding that the wife is a feme sole of all intents 
and purposes as to her separate property, she ought only 
to be deemed a feme sole suh modo, or to the extent of the 
power clearly given by the settlement. Instead of main- 
taining that she has an absolute power of disposition unless 
specially restrained by the instrument, the converse of the 
proposition would be more correct, that she has no power 
but what is specially given, and to be exercised only in 
the mode prescribed, if any such there be. Ilor incapacity 
is general, and the exception is to be taken strictly and to 
be shown in every case, because it is against the general 
policy and immemorial doctrine of law. These very set- 
tlements are intended to protect her weaknes^^ against her 
husband's power, and her maintenance against his dissipa- 
tion. It is a protection which the court allows her to 



ADJOUKNED T. AT TALLAHASSEE, 1855. 423 

Malben, et. al. vs. Bobe. — Dissenting Opinion. 

assume, and her friends to give, and it ought not to be ren- 
dered illusory/^ 

Applying the doctrine to be extracted from the foregoing 
views to this case, and I am at a loss to concoive upon 
what principle the decree of the court below can be sus- 
tained. It is true that in most of the cases referred to in 
support of my position, the particular question involved 
was as to the power of the wife, in seeking to dispose of 
her estate, to adopt any other mode than the one specially 
designated in the deed of settlement. In thi^ case, how- 
ever, the deed prescribes no particular mode, nor does it 
in terms give any power of sale. It simply conveys the 
property to the wife, and to the heirs of her body, coupled 
with the stipulation that it is "not to be subject to the con- 
trol, or debts, or contracts of her husband." The court, in 
their argument, admit that the deed creates a separate es- 
tate for the wife, but assume that it is not witliin the prin- 
ciple of the American cases which I have referred to, and 
in support of that assumption, cite a casual and vague re- 
mark of Chancellor Kent upon this subject. I am willing 
to submit the interpretation of that remark to an> candid 
mind, and if it does not demonstrate pretty conclusively 
the inclination of the Chancellor to apply the doctrine to a 
case even of this kind, I will freely yield tho Jirgument. 
Upon the principle assumed in all of the American cases 
which I have cited, I am constrained to hold, that where 
the deed of settlement contains no power of disposal, the 
jus disponendi cannot be exercised by the wife, at least so 
as to take effect during her life, and that her interest in 
the property is restricted to the use merely. The case from 
1 Barr is one in which there was no particular mode of 



424 SUPBEME COURT- 

■ ■ ■ ■■» ■ ■ ' ■■■■II ^^— ^^ 

Maib«p,.et. al. vs. Bobe. — Dissenting Opinion. 

!■■■»■ IIIIIMIM I I MM ~ 

disposition prescribed^ and is in all respects similar to the 
case before us. It is worthy of note that none of the Amer- 
ican cases which profess to adhere to the English doctrine 
upon this subject, have had the boldness to carry it out to 
its legitimate results, when called upon to give it a practi- 
cal application. However wrong in principle the English 
courts may have been, it must be admitted that they have 
preserved the virtue of consistency. Holding as tbey do to 
the enlarged and unrestricted powers and capacities of the 
wife, they permit her not only to alienate but also to charge 
her separate estate, to any extent that she mey desire. 
This is the current doctrine of those courts. 

The American Courts, however, are placed in tliis awk- 
ward dilemma. While they profess to look upon the wife, 
in respect to her separate estate, as discovert, and invested 
with all the rights and capacities of a feme sole, for the 
purpose of alienating her property, they yet shrink from 
permitting her to charge it, by her general engagements. — 
In other words, they accord to her absolutely the right to 
alienate — part with and destroy the entire estate, but she 
may not be permitted to do an act, which by possibility 
might deprive her of a portion of it. A doctrine which in- 
volves an inconsistency so glaring, cannot command my 
respect, and therefore will not receive my sanction. 

In closing my observations upon the branch of thi3 case, 
I may be permitted to remark with reference to the prece- 
dents cited and relied upon by the majority of tie court, 
that while age lends to truth a beauty and dignity, no ac- 
cumulation of years can ever sanctify error. Influenced by 
this principle, the enlightened jurists of South Caroliiuu 
Pennsylvania, Tennessee and Mississippi, suppprted by <the 



ADJOUENEDT; at TAmiAHASSEE, 1865, 485 

Mklb^B, eft at vs. Bobie. — DiMentlng Oplnioni 

approval of the gi^at American Chancellor; have boldly 
repudiated the English doctrine^ and I am content to be 
ranked as an humble follower of such worthy lea- 
ders. 

In my observations upon the special point presented by 
this case, it will be perceived that I have left untouched 
many of the incidental questions which may arise out of 
this very delicate subject, such as the right to chai-ge the 
separate estate of the wife for necessaries furnished for her 
use, or for expenses incurred for the benefit of the estate 
itself, and how and under what circumstances such char- 
ges will be allowed to be made. Also the power of the 
Court of Equity to alter or change the nature of tlie prop- 
erty, upon the application of the parties interested therein, 
and many others which might be readily suggested. In- 
deed, the question as to the charging of the separate es- 
tate, for necessaries and outlays, has already bi.»en adjudica- 
ted by this Court in the case of "Administrator of Smith 
vs. Poythress,'^ (2 Florida R., 92) and the right is placed 
upon grounds which I fully approve of, and which are not 
at all in conflict with the general position which I have as- 
sumed in this case. 

There is no conflict between the majority of the court 
and myself, as to whether this deed created a separate es- 
tate for the wife. It is admitted tliat it did, and it might 
therefore be deemed out of place, were I to indulge in 
any lengthened observations upon this point. I shall con- 
tent myself by briefly remarking that there is a great di- 
versity of opinion in the reported cases, as to what partic- 
ular words will create a separate estate for tliC wife, but 
they all seem to concur in the adoption of this rule, that 



426 SUPREME COUKT. 



Maiben, et al. vs. Bobe. — Dissenting Opinion. 

where by the terms of the deed or settlement, the iuiention 
to exclude the marital rights of the husband, is ckarly ex- 
pressed or can be reasonably implied in such a eas.'^, a trust 
for the wife will be declared. No particular form of words 
is essential; the intention to exclude the legal rights of the 
husband, is all that is required to be shown. Clancy's 
Hus. and Wife, 262; 2 Bright's Hus. and Wife, 211; 2 
Story's Eq. Jur., § 1381. 

It was further insisted by the majority of the couii:, that 
as the settlement upon the wife was executed in the State 
of Alabama, (the then residence of the husband and wife,) 
where, it is assumed, the English doctrine prevails as the 
law of the land, the doctrine of ex loci contractub would 
operate, and consequently the wife enjoyed the right to 
deal with the property as a feme sole, notwithstanding her 
subsequent removal into this State. There are two objec- 
tions to this argument. In the first place I am not satisfied 
that the court is correct as to the law of Alabama. It is 
stated in the American notes on "Wliite and Tudor^s Lead- 
ing cases in Equity," (Vol. 1, p. 411,) that in the State of 
Alabama, some of tlie earlier cases inclined tt'ward the 
English doctrine, and reference is specially made to Forest, 
et al. vs. Rol)inson, Executor, 4 Porter, 44, and to Saddler 
and Wife vs. Houston and Gillespie. Ibid, 208. I Iiave care- 
ful Iv examined the two cases referred to and find that the 
broad question as made in this case, did not arise in either 
of them. In both of those cases, the application was on 
the part of a creditor to charge the separate estate, for the 
payment of a debt of the tcife. What is said in those cases 
therefore, with respect to the general doctrine, must be, 
viewed as mere dicta. I have also examined all o^ the Al- 



ADJOURNED T. AT TALLAHASSEE, 1855. 427 



Maiben, et. al. vs. Bobe. — Dissenting Opinion. 

abama cases^ from the first that was ever decided in the 
State, down to 6 Alabama Eeports, and have found not one 
in which the point was expressly ruled. The ease from 
17 Alabama, is clearly not in point. In that case the deed 
of settlement provided that the wife should have "the com- 
plete control of the property, as though the marriage had 
never taken place." A stipulation evidently in favor of the 
right of alienation. But even admitting the prevalence of 
the English doctrine in that State, yet the argunieot is whol- 
ly inapplicable to the case before us. It is not the Ala- 
bama contract between Tate, the settler, and Mrs. Shomo, 
the beneficiary, that we are now called upon to adjudicate. 
The contract that we have to deal with, is the Florida 
contract, made between the beneficiary ol the settlement 
and Bobe, the purchaser of the slaves. It would certainly 
be extending the doctrine of ex loci contractus, to a most 
unreasonable length, to apply it to the circumstance? of this 
case, as is sought to be done by the majority of tho court. 
The argument, though at the first blush, soinen'bat spe- 
cious, will upon examination, be found to be wholly untena- 
ble. 

From the view which I have taken of the law of this 
case, it might seem unnecessary that I should ^-efcr to the 
testimony contained in the record, but inasmucii as the 
court has assumed to base its judgment, in part upon the 
evidence, I may be permitted very briefly to refer to it. 
From the cursory examination which I have given to it, I 
am far from being fully satisfied, that there is that conclu- 
siveness in it, which ought always to be required, when- 
ever it is attempted to establish the fact of dealing against 
a married woman. The evidence in this case very clearly 



428 SFPBEME COURT. 



Maiben, et. al. \». Bobe.— ^Dissenting Opinion. 

shows thftt^ in the negotiation of the sale of th(i slaves, the 
wjie had no participaney. She was never consulted by 
the purchaser, either as to her desire to sell, or in regard 
to the price to be paid, but the whole evidence conclusive- 
ly shows that he dealt with the husband, as though he 
were the absolute owner of the property. I would not be 
understood as desiring to lay down any definite rule upon 
the subject, as each case must be made to depend upon ite 
attendant circumstances, but I will say that where a feme 
covert is specially empowered to contract, a Court of Equi* 
ty ought always to look with a jealous eye upon her deal- 
ings, with a view to protect her from the operation of . im- 
proper influences. And especially ought this to be so, 
whenever, as in this case, the party purchasing has full 
knowledge of the extent of the wife's interest in the pro- 
perty. 

If I have exceeded the limits usually assigned to a difi- 
sentiug opinion, my apology may be found first, in the in- 
trinsic importance of the question involved, and f^condly, 
in the fact that the chief point in this case, has never be- 
fore been brought under judicial investigation in thia 
State. 

I am clearly of the opinion that the decree of the Circuit 
Court ought to liave been reversed and the bill ordered to 
be dismissed. 

Upon a full review of the whole case, my mind 
has arrived at the following conclusions, as applicable 
thereto : 

1st. The appointment of a trustee, is not indispensable 
to sustain a trust for the separate use of the wife, but 
where in a deed of settlement, the appointment haa been 



ADJOURNED T. AT TALLAHASSEE, 1855. 429 

Maiben, et al. vs. Bobe. — Dissenting Opinion. 

omitted, the husband will be converted into a trubtee pro 
hac vice, 

2nd. A married woman has no power to sell or dispose 
of her estate which has been settled upon her for her sepa- 
rate use, but what is specially given to her, by Hie very 
terms of the instfument, under which she claims. 

3rd. Where the deed of settlement contains no power of 
disposal, the jus desponendi cannot be exerciseti by her, at 
least so as to take effect in her life-time, her interest 
in the property being restricted to the use merely. 

4th. Where by the terms of the deed or setiloment, the 
intention to exclude the marital rights of the husband, is 
clearly expressed, or can be reasonably implied, in such a 
case, a trust for the wife will be declared. Xo particular 
form of words is essential, the intention to exclude the legal 
rights of the husband is all that is required to be 
shown. 

5th. In cases where the feme covert is specially empow- 
ered to contract, a Court of Equity will always look with 
a jealous eye upon her dealings, with the view to protect 
her from the operation of improper influences. 



430 STJPEEME COUBT. 

Sanderson vs. Jonas, et. al. — Statement of Case. 

■ ^*^— ^ ' ■^■■■1 ■■■ ■■■I ^^^^^^^^M^^»^^^— * 

JoHX P. Sanderson, Appellant, vs. Elizabeth S.L. Jones. 
Trustee, ac, Mary M. E. Harrison et al.. Appellee. 

1. Where a marriage settlement Is made by husband and wife in trutt to the 
use and behoof of husband and wife during their natural live*, it la by 
no moans clear that a separate estate Is created tSt the wife. 

2. The husband Is entitled during his life to the Income of property settled 
upon himself and wife Jolntly.as a compensation for his liability to maintain 
her ; he Is entitled to the whole of the profits of the trust estate when sop- 
porting the expenses of the household. 

3. The right of alienation is Incident to the ownership of property, and a re- 
striction supposes incapacity, and is inapplicable to the case of a man. 

4. Trusts are alienable, and a husband may sell and dispose of his life interest 
In such property. 

5. A sale of personal property by a husband, under a marriage settlement as 
aforesaid, held good as to a daughter to the extent of the interest of the 
father, especially where there is no allegation that the husband has not prop- 
erty to maintain the wife, and does not maintain her. 

G. The decree of the court In favor of the husband of the daughter against the 
father and grantor in the settlement, settled as aforesald,conclusive as to his 
life Interest, right of possession and power of alienation. 

7. If the remalndcr-men.the children provided for after the termination of the 
llfo estate, have a fear that the property is In danger of being diverted and 
squandered, and they have such interests against the purchaser from the 
father, their remedy Is by bill quia timet. 

Appeal from a decree of the Circuit Court for Duval 
county. 

The bill in this case was filed by Elizabeth S. L. Jones, 
as trustee, &c., under the marriage settlement hereinafter 
set forth, and Mary M. E. Harrison, wife of T^obert Harri- 
son, Senior, by her next friend, Charles P. Cooper, who 



ADJOURNED T. AT TALLAHASSEE, 1855, 431 



Sanderson vs. Jones, et. al. — Statement of Case. 



claims as cestui que trust under said settlement, ard Robert 
Harrison, Junior, and others, children of said Ronert Har- 
rison and Mary M. E. Harrison, who claim as remainder- 
men under said settlement, complainants against Robert 
Harrison, Sr., and John P. Sanderson. 

In the year 1813, in anticipation of a marriage between 
said Robert Harrison, Senior, and said Mary M. E. Harri- 
son, then Mary M. E. Cooper, a deed of marriage settle- 
ment was executed by said Harrison and said Mary and 
the trustees therein named, of which the fo- lowing is a 
copy: 
Georgia : — 

This indenture, tripartite, made the ninth day of June, 
in the year of our Lord one thousand eight liundred and 
thirteen, and of American independence the ^hirty-eighth, 
between Robert Harrison, Esq., of the first. ?»faiy Magda- 
lene Cooper, (spinster) of the county of Mcintosh, the 
daughter of Col. John Cooper, of said county and State, of 
the second part, and Samuel Harrison, Jr., James Nephew, 
of the county of Mclntosli, and William Anderson end Jo- 
seph Jones, of the county of Liberty, p]squires, of the third 
part. Whereas, by God's permission, a marriage is intend- 
ed to be had and solemnized by and between the said Robert 
Harrison and Mary Magdalene Cooper. Now, ti.is inden- 
ture witnesseth that in consideration of the said intended 
naarriage and for securing and providing a maintenance 
and support for the said Mary Magdalene Cooper in case 
of casualties; also, in consideration of the sum of one dol- 
lar to him, the said Robert Harrison, in hand, well and 
truly paid at and before the sealing and delivery ol these 
presents, the receipt whereof is hereby acknowledged. 



432 SFEBBME COUBTI. 



Sftsderson vs. JMkca, et, al. — Statemtnt ot'C^aej 

Hath, and by these presents doth bargain^ seJl, conw, 
assign, transfer and set over unto the said Samuf>l Harri- 
son, James Nephew, William Anderson and Josepii Jonet, 
and the survivor of them and to their heirs, execmtors and 
administrators of such survivor, all those certain sixteen 
negro slaves named as follows: Esau, Lydia and her child 
Mary, Tom, Alexander, Abraham, Drummond, Jac«^b, Boat^ 
swain, Stephen and Prince, Patty and her two children 
James and Sarah, Henry and Flood, with the issue and^ in- 
crease of the females. 

To have and to hold all and every the said neg^:o slaves 
as named, with the issue and increase of the females unto 
them, the said Samuel Harrison, James Nephew, William 
Anderson and Joseph Jones, and the survivors of them, 
their heirs, executors or administrators: Whe/ess to and 
for the uses, intents and purposes hereinafter mentioned, 
expressed and declared of, for or touching or concerning 
the same or any part thereof, and to and for no other use, 
intent or purpose whatsoever; that is to say, whoreas, for 
the use and }>enefit and behoof of the said Hobcrt Harri- 
son, his heirs and assigns until the said intended inarriage 
shall take effect and be solemnized, and from and immedi- 
ately after the said solemnization of the intended marriage, 
to the use and behoof of the said Robert Ilariison and 
Mary Magdalene Cooper, liis intended wife for and during 
their natural lives, without any manner of waste or im- 
peachment of waste to be had, done, made oi- committed, 
and after the determination of that estate, to the said Sam- 
uel Harrison, James Nepliew, William Anderson and Jo- 
seph Jones, and the survivors and survivor of then) iD trust 
to and for the following uses, that is to say, to a'ud . for the 



ADJOURNED' T; AT TMHiAHASSEE, 1865. 433 

Stedersos' YB.' Jones, et al. — Statement of OAsew 

use and benefit and behoof of the child or children of them, 
the said' Robert Harrison and Mary Magdalene Cooper, 
his intended wife, shares and share alike to them, their heirs 
and assigns, forever; and after the determination of that 
estate, to the said Samuel Harrison, James Nephew, Wil- 
liam Anderson and Joseph Jones, and the survivors and 
the survivor of them in trust, that is to say, should there 
be no issue living by and between the said Eobert Harri- 
son and the said Mary Magdalene Cooper, his intended wife, 
at the decease of either of them, said Robert Harrison or . the 
said Mary Magdalene Cooper, his intended wife, that then 
and in such case the said estate so made over, transferred, 
and assigned in trust aforesaid, shall go to the longest 
liver, and be to the sole use and be the right and propert}' 
of the survivor, to his or her use, benefit and behoof for- 
ever, anything to the contrary notwithstanding; and where- 
as, the said Mary Magdalene Cooper is and will be well 
and sufficiently entitled of, in and to a certain estate to be 
hereinafter ascertained ; now by these presents it is agreed 
upon and fully understood and hereby covenanted by and 
between the parties to these presents, that when such es- 
tate can and mav be ascertained, that a schedule of the 
same shall be hereinafter annexed, attested by two or 
more credible witnesses, which said estate, real or person- 
al, shall be subject to all and every the covenants, condi- 
tions, premises, trusts and limitations, as hereinbefore 
expressed and contained or that may hereafter be further 
expressed, covenanted, limited and declared, and that the 
said schedule so to be annexed shall be taken and consid- 
ered as part and parcel of this deed of settlement, any- 
thing to the contrary notwithstanding; and by these presents 
29 



434 SUPREME COURT. 

Sanderson vs. Jones, et al. — Statement of Case. 

it is agreed upon, fully understood and covenanted by and 
between the said parties to these presents, tliat the said 
bargained, sold, conveyed, assigned and set over estate or 
estates, with every the rights thereto appertaining or be- 
longing, both as real or personal or otherwise in manner 
and form as aforesaid, that the same, nor shall any part 
or parcel thereof, at any time or times hereafter, be subject 
or liable to the payment of any debt, judgment, execution, 
or account, or demand otherwise, now due or owing by 
the said Robert Harrison for, or by reason of any matter 
or thing whatsoever, or that may hereafter become due 
owing or be contracted, anything to the contrary notwith- 
standing; and it is hereby provided, covenanted and agreed 
by and between all the parties to these presents, that it 
shall and may be lawful to and for the said Robert Harri- 
son and Mary Magdalene Cooper, his intended wife, with 
the approbation and assent of the said trustees or the survi- 
vors or survivor of them, at any time or times hereafter, 
by any writing or writings under tlieir respective hands, 
and attested bv two or more credible witnesses to revoke 
and make void, alter or change all and every of, or any 
of the uses, ti*usts or estates hereinbefore limited and de- 
clared of and concerning or touching the premises or any 
part or parcel thereof, anything herein contained to the 
contrary notwithstanding; and lastly, the said parties and 
each and every of them do hereby covenant, grant and 
agree to and with each other that the present deed of set- 
tlement, and every article, matter and thing therein con- 
tained, shall be carried into effect according to the true 
intent and meaning of the same, and according to the most 
natural and obvious construction of the words, and agree- 



ADJOURNED T. AT TALLAHASSEE, 1855. 435 



Sanderson ys. Jones, et. al. — Statement of Case. 

able to what shall appear to have been the sense and 
meaning of the parties at the time of executing the same, 
anything to the contrary notwithstanding. 

"In witness whereof the said parties to these presents have 
hereunto set their hands and seals, the day and year first 
above written, 1813." 

ROBERT HARRISON, [Seal] 
MARY M. COOPER, [Seal.] 
JAMES NEPHEW, [Seal.] 
WM. ANDERSON. [Seal.] 
JOSEPH JONES, [Seal.] 

"* Signed, sealed and delivered in presence of 

John Gionitlant, 

James Pelot, 

Recorded 2d July, 1822. 

JOHN P. BALLARD, Clerk." 

The marriage anticipated was shortly after solemnized 
and the parties subsequently removed to Florida whilst the 
latter was a province of Spain. On the fourth day of Jan- 
uary 1844 the said Robert Harrison senior executed a deed 
of trust for the benefit of Mary E. Sanderson, a daughter 
of the said Robert Harrison senior and Mary M. E. Har- 
rison his wife, who had intermarried with John P. Sander- 
son, of which the following is a copy : 

"This indenture made and entered into this fourth day of 
January in the year of our Lord one thousand eight hun- 
dred and forty-four, by and between Robert Harrison of 
Nassau county and Territory of Florida of the first part, 
and Harrison Starrett of the County and Territory afore- 
said of the second part, Witnesseth that whereas the said 
party of the first part in order to guard his daughter Mary 



436 SUPREME COUET. 



Sanderson vs. Jones, et al. — Statement of Caseu 

E. Sanderson as much as may be against the casualties 
and misfortunes' of life, and provide for her a suitable and 
separate maintenance and support, and which will not be 
subject to the fate of her husband^s misfortunes or enter- 
prises in business, hath proposed for that purpose to convey 
the property hereinafter described, to a trustee to and for 
the separate use of his daughter Mary E. Sanderson, and 
the said Harrison Starrett party of the second part having 
consented to act as trustee, and the said Mary E. Sanderson 
having also consented to the same: Now therefore to 
carry into effect the said intention and to make the said 
conveyance Effectual in Law." 

"This indenture witnesseth that the said party of the first 
part in consideration of the sum of ten dollars good and 
lawful money to him in hand paid by the said party of the 
second part, at and before the sealing, and delivery of 
these presents, the receipt whereof is hereby acknowledged 
hath granted, given, bargained, sold, delivered and con- 
firmed unto the said party of the second part, his executors, 
administrators or assigns, all his right title and interest of, 
to or in the negro slaves following to wit: 

1. Mitchell, male, aged 35, 4 Edgar male aged 2 



2. Daniel, 


u 


i( 


21, 5 Roger 


3. Richard, 


u 


<( 


20, 6 Will 


7. Sarah female. 


iC 


31. 


8. Nancy " 




« 


18. 


9. Betsey " 




u 


17, 


10. Fanny " 




u 


2. 


11. Harriet " 




C6 


35. 



5 



"To have and to hold the said negro slaves all and sin- 
gular, together with the future increase thereof hereby, 



ADJOURNED T. AT TALLAHASSEE, 1855. 437 



' SftBdenon vs. Jones, et. al. — Statement of Case. 

* 

given, granted, bargained, sold, delivered and confirmed 
unto the said Harrison Starrett, party of the second 
part his executors administrators and assigns, by as full 
and ample title as the same is owned by the said party of 
the first part, subject nevertheless to the said trusts, limita- 
tions, provisions and restrictions hereinafter contained, 
that is to say. In trust nevertheless, and these presents 
are upon the express condition that the above described 
property is to be owned and held by the said party of the 
second part, to and for the only proper use, benefit and 
behoof of the said Mary E. Sanderson daughter of the said 
party of the first part, and the heirs of her body. And 
the said Harrison Starrett shall have and hold the said 
above described property, for the uses and trusts aforesaid, 
and for none other whatsoever, and upon the further con- 
dition that the said negro slaves above given, granted, 
bargained, sold and conveyed, shall be and remain in the 
poseession of the said Mary E. Sanderson, and her heirs 
aforesaid, free and secure from all debts and claims what- 
soever, now subsisting or which may hereafter subsist 
against the said party of the first part. And the said party 
of the second part, by these presents for himself his execu- 
tors, administrators, and assigns acknowledges and accepts, 
ratifies and confirms the aforesaid uses and trusts subject 
to all the conditions, provisions, limitations, and restrictions 
hereinafter expressed, and it is further expressly conditioned 
and agreed by the parties hereunto, that the said Harrison 
Starrett his executors, administrators and assigns shall 
and will at any time or times hereafter sell and convey the 
same, and at the proper expenses of the said Mary E. San- 
derson, or her said heirs, make execute and deliver title or 



438 SUPREME COURT. 



Sanderson vs. Jones, et. al. — Statement of Case. 

titles to the said property mentioned, or any part or parcel 
of the same, whereon and in the manner and form, and 
such person or persons as the said Harrison Starrett trustee 
or his executors, administrators or assigns shall be requested 
or directed to do, by writing under the hands and seals of 
the said party of the first part and Mary E. Sanderson his 
daughter or her aforesaid heirs, and the said Harrison Star- 
rett trustee, his executors, administrators, or assigns, shall 
upon request in manner and form aforesaid, again reinvest 
the money arising from the sale of any of the property 
aforesaid, subject nevertheless in every respect to all the pro- 
visions, uses, trusts, and conditions as those by him sold and 
conveyed, and the said Robert Harrison, party of the first 
part for himself, his heirs, executors, administrators or as- 
signs, will warrant and defend forever the said given 
granted, sold and conveyed negro slaves with the future 
increase thereof unto the said Harrison Starrett trustee, his 
executors, administrators, or assigns for the uses and pur- 
poses aforesaid against all persons whatsoever. 

"Signed scaled and delivered the day and year first 
al)Ovc written." 

Tn presence of \ TM)BEKT HARRISON, [seal.] 

E. Hakuisox, ( HARRISOX STARRETT. [seal.] 

RoBT. M. Pease, 

RoBT. Harrison., 

Subsecjuently to the execution of this deed of 1844, Mary E. 
Sanderson, the cestui que trust, therein died without leaving 
any children, and John P. Sanderson, her husband, became 
administrator of her estate. As such administrator, John 
P. Sanderson filed a bill against Robert Harrison, Sen., 
and H. Starrett, trustee, under the deed of 1844, for the 



ADJOUBNED T. AT TALLAHASSEE, 1855. 439 

Sanderson vs. Jones, et. al. — Statement of Case. 

possession of the slaves therein conveyed. Tlie bill hav- 
ing been taken for confessed for want of ansv/er, it was af- 
terwards decreed tliat said Robert Harrison, Sen., had no 
right, title op interest in or to the estate of said Mary E. 
Sanderson, deceased, and tlie possession of the said slaves, 
was directed to be delivered to the said Jolm P. Sander- 
son. 

The bill in this case was filed after the decree aforesaid, 
and it alleges that none of the parties complainant herein, 
were made parties to the bill filed by Sanderson, as afore- 
said; that they had no day in court, although serious- 
ly prejudiced by said decree, and are consequently not 
bound by the same. Mary M. E. Harrison claims that un- 
der the deed of marriage settlement of 1813, she has an in- 
terest separate and distinct from her husband, in the pro- 
perty decreed to Sanderson under the deed of trust of 1844, 
of which she could not be divested by the act of her hus- 
band, and asserts that the existence cf the deed of 1844, 
was not known to her until after the removal of the negroes 
therein attempted to be conveyed, from the plantation in 
Nassau county, where Robert Harrison Sen., and his fam- 
ily resided. 

The bill further charges that of the negroes attempted 
to be conveyed by the deed of trust of 1844, two were of 
those conveyed by the marriage settlement of 1813; six 
were derived to her as an heir at law of her father, and 
included in the trust of 1813, as part of the estate to which 
she is therein declared to be "well and sufficiently entitled 
to,'' and nine were purchased or are descended from these 
purchased, subsequently to the deed of 1813, with the pro- 
ceeds and income of the property tlierein conveyed. 



440 SUPREME COimT; 



Sanderson yb: Jones, et. al. — Statement of Caae. 

Robert Harrison, Junior, and others, children of the* said 
Robert Harrison, Senior, and Mary M. E. Harrison, abo 
complainants to the bill, allege that they are entitled to an 
interest in remainder in said property, to tfeke effect after 
the death of their parents, and charge that if the negroes 
are yielded up to Sanderson, under the decree rendered in 
the case against Roberi; Harrison and Starrett, their rights 
and interests will be jeoparded, if not wholly lost, and ask 
the interv^ention of the court to protect their rights in the 
premises. 

Elizabeth S. L. Jones, is the executrix of Joseph Jones, 
the last survivor of the trustees named in the marriage 
settlement of 1813, and as such claims to be trustee un- 
der the said marriage settlement. 

John P. Sanderson demurred to the bill of complainant, 
and sets forth the following as causes of demurrer, viz : 

'' That the complainant's said bill (in case the allegations 
thereto were true, which this defendant doth in no wise 
admit,) contains not any manner of equity whereupon he 
can ground any decree or give the complainants any relief 
or assistance as against him this defendant. 

'^ And for further and other causes of demurrer to the 
said complainant's bill of complaint, this defendant, John P. 
Sanderson, saith that it appears by the marriage settlement 
referred to by complainant's bill, exhibited A, and which is 
by the said complainants referred to and made a part of 
said bill of complaint, that the heirs, executors and admin- 
istrators of the said surviving trustee, Joseph Jones are 
necessary parties to said bill, inasmuch as it is therein 
stated that the said Robert Harrison did bargain, sell, con- 
vey, assign, transfer and set over the property mentioned 



ADJOURNED T. AT TAliLAHASSEE, 1866. 441 

Sanderson y8. Jones, et. al. — Statemont of Case. 

^ ■■■■■ I , ■ -l^ . ■ I ■ ■ » ■■!■ I ■■■■! ■■ 1^ ■ I I I II ■ ■■ ■ i— ^i— ■ ■ 

in the marriage settlement, (referred to in said bill as ex- 
hibit A.) to Samuel Harrison, James Nephew, William An- 
derson and Joseph Jones, and the survivor of them, and to 
the heirs, executors and administrators of each survivor, 
and that the said complainants have not made the said 
heirs of the said survivor, Joseph Jones, trustee, a party 
to this bill. . 

"And for further and other causes of demurrer to the said 
complainant's bill of complaint, this defendant, John P. 
Sanderson, saith that it appears by the said bill of com- 
plaint, that Elizabeth S. L. Jones became and is trustee in 
the place and instead of the original trustees named in the 
marriage settlement referred to and named in said bill of 
Mary M. E. Harrison, wife of Robert Harrison, Senior, 
and it also appears in and by said bill that the said Eliza- 
beth S. L. Jones, trustee of Mary M. E. Harrison, is joined 
as a complainant with Chas. P. Cooper as next friend of 
the said Mary M. E. Harrison, and that the said Mary M. 
E. Harrison sues not only by the said trustee but by her 
next friend the said Chas. P. Cooper. 

"And for further and other causes of demurrer this defen- 
dant, John P. Sanderson, saith that it appears by the said 
bill the same is exhibited by the said complainants against 
tliis defendant and one Robert Harrison, Senior, as defen- 
dants thereto, for several distinct matters and causes, in 
many whereof, as appears by tlie said bill, this defendant 
is in no way interested : 

And for further and other causes of demurrer to the said 
bill of complaint, this defendant saith that it appears by 
the said bill that the same is exhibited against this defen- 



442 SUPREME COUET. 



Sanderson vs. Jones, et al. — Opinion of Court. 

dant by the said Mary M. E. Harrison, by her trustee 
and next friend and by Robert Harrison, Junior, in his own 
right and as next friend of Evelyn A. Harrison and Mar- 
ion S. Harrison, as complainants thereto, for several distinct 
matters and causes, in many whereof, as appears by the 
said bill, this defendant is in no way interested, as and by 
reason of such distinct matters the said bill is drawn out 
to a considerable length, and this defendant is compelled 
to take a copy of the whole thereof, and by joining distinct 
matters together which do not depend on each other, the 
proceedings in .the proress of the said suit will be intri- 
cate and prolix, and thus this defendant put to unnecessary 
charges and expenses in matters which in no way relate 
to or concern him. 

"Wherefore and for divers and other causes of demurrer 
this defendant demands the judgment of this honorable 
court.'' 

The demurrer being overruled, Sanderson appealed. 

G, W, Call, Jr., for Appellant. 

Philip Fraser and C. P. Cooper for appellees. 

BALTZELL, C. J., delivered a opinion of the court 

This case depends upon the power of a husband, under 
a marriage settlement, to convey an interest in certain 
slaves, part of the property settled. Robert Harrison, Sr., 
previous to his intermarriage with his present wife, then 
Miss Mary M. Cooper, ipi connection with his intended 
wife, conveyed to trustees a large number of slaves, his 
own property, and also other property of hers "in trust to 
the use and behoof of himself and his wife for and during 
their natural lives, and after the determination of that es- 
tate in trust for the use, benefit and behoof of the child or 



ADJOURNED T. AT TALLAHASSEE, 1855. 443 

Sanderson vs. Jones, et al. — Opinion of Court 

children of them, the said Harrison and wife, share and 
share alike to them, their heirs and assigns forever." This 
was dated 9th June, 1813. 

After the intermarriage of his daughter Mary with Jolin 
Sanderson, he conveyed on the 4th of January, 1844, eleven 
negroes to a trustee, for the only proper use, benefit and 
behoof of said daughter. 

Mrs. Sanderson having died, her husband filed his bill 
asserting title to the property under the conveyance afore- 
said, and by virtue of his marital rights, against Kobert 
Harrison, Sr., and the trustee of his wife, and after hearing 
and argument of counsel, a decree was rendered by the 
Circuit Court of Duval county "that Robert Harrison, Sr., 
is not heir or distributee of the said Mary Sanderson, and 
has no right, title or interest in and to the estate of the 
said Mary Sanderson in remainder, reversion or otherwise 
and that the complainant Sanderson is entitled to the pos- 
session of said slaves," and an order was passed for their 
deliverv to him bv said Harrison. 

The present bill is filed by Mrs. Harrison, wife of Robert 
Harrison, through the executor of the surviving trustee, 
and by her other children, claiming that the conveyance to 
Mrs. Sanderson was invalid and carried no interest to her 
nor to her husband, Sanderson. 

This, of course, involves an inquiry into the marriage 
setlement between Harrison and his wife, and the nature 
and extent of the interest of the parties to it. It has been 
assumed that a separate estate is created by it for Mrs. 
Harrison, which we think by no means clear. The prop- 
erty is not settled to her sole or separate use; the words 
are, "to the use, benefit and behoof of himself and wife." 



444 SUPREME COUKT. 

Sanderson vb. J<meB, et al. — OpUrfon of Cattrt 

TJndonbtedly, such wofSs, applied to the wife, will not 
create a separate estate. Can the addition of the hashmd 
and the connection of his name make a difference ? 

The books are not silent as to thie subject. In an dab- 
orate opinion delivered by C. J. Safford, of Alabama, the 
Supreme Court of that State say, "the property (slaTes) is 
declared to be for the joint use and support of husband 
and wife and subject to their joint possession. Was any 
ease cited in argument where, by construction, 80 much 
violence was done to the language of the deed as to main- 
tain that a clause expressly creating an estate for the jaini 
use and support of two was intended to create a separate 
property for the sole use of onef Clancy, (p. 269) after a 
very learned investigation of the whole subject and a re- 
view of the cases, says: "All these cases clearly prove 
that there must be a manifest intention evinced by the 
language of the donor that the wife shall have the exelvr 
sive property in the gift, without which Courts of Equity 
will not suffer the legal rights of the husband to be super- 
seded." They then say, "they come to the conclusion that 
this gift cannot enure to the separate use of the wife and 
child or cither, and that the marital rights of the husband 
have not been excluded." Haskins vs. Coalter, 2 Porter, 
473; see also Wardell vs. Chastain, 17 Con. Eng. Ch. 225; 
Ibid, 9 Simon 525. 

A reference is given in a note to Hill's work on Trusts, 
p. 420, n. by Wh. to Bender vs. Reynolds, 12 Ala., 441 and 
Geyer vs. Br. Bank, 21 Ala., 414, but we have not been 
able to procure them. 4 Tred. Eq. 241. 

It may be proper to remark that more stringent expres- 
sions would seem to be required by the latter authorities to 



ADJOURNED T. AT TALLAHASSEE, 1866. 445 

Sandenon vn. Jonea, et aL — Opinion of Conrt 

• - , 

create a separate estate, than once were considered suffi- 
cient. Hill on Trusts by Wh., 611. 

Even if the wife have a separate estate the inquiry 
arises, as to the interest of the husband, Bobert Harrison 
in the property conveyed, and the broad ground has been 
assumed that he had none that he could convey. It is very 
clear that he has an interest if she had one, and if he has 
none she is in the same condition. The authorities as to 
the relative rights of the two parties will be found to be as 
follows: "Where property belonging to the husband and 
of which he is the purchaser, by setlement is vested in 
trustees in trust, to pay the income to the husband and 
wife jointly during their joint lives, the husband alone will 
be entitled to receive the whole income.'' Hill on Trusts, 
427; Duncan vs. Campbell, 12 Simons 616. 

"A husband in equity as well as at law is entitled to the 
receipt of the income of his wife's property as a compensa- 
tion for his liabilitv to maintain her." Hill on trusts 410 n. 
3 Simons 370 ; 1 Roper Hus. and Wife, 273. 

''Consequently he will be entitled to the uncontrolled 
beneficial enjoyment of her life interest unless he deserts 
her." Hill 410. 

In Jones vs. Mayrant the Court of Appeals of South 
Carolina, say " it was decided in Barrett vs. Barrett, that 
the husband supporting the expenses of the household 
was entitled to the whole of the profits of the trust estate 
settled jointly on the husband and his wife. Under such a 
settlement the creditors of the wife would not be allowed 
to deprive the wife of her maintenance." 4 Dees. 602. 
In the case of Napier vs. Wightman the same court say 
*^this setlement provides that the defendant Wm. J. 



446 SUPEEME COURT. 

Sanderson vs. Jones, et. al. — Opinion of Court. 

and his wife shall have the whole of this estate (slaves, &c.) 
during their joint lives without assigning any part to her 
separate use, and if it he true, and that will not l)e contro- 
verted that all the chattel interests of the wife, belong to * 
the liusband, he is entitled to the whole income of this es- 
tate so long as they both live, and if arrested on a 
C(f, Sa. from a court of law would be required to assign." 
1 Spears Eq. 369. 

The terms of the deed were to trustees in trust for the 
joint use of husband and wife, during their joint lives, then 
to the use of survivor during life &c. The same court says 
farther in the same case : " I shall not stop here to enquire 
whether under the statutes of uses the defendant Wight- 
man has not a vested interest in the whole of the real es- 
tate during life. It is very clear that under the provision 
in the settlement, he is e7ititled to the income of the whole 
estate, real and personal, for the joint lives of himself and 
wife, and during his life if he survives, with power of dis- 
position as to one half absolutely. Ibid, p. 370. 

Whilst then we have seen that Harrison had an inter- 
est in tlio trust estate, tlie question yet arises as to his pow- 
er to convev, which also has been earnestly and seriously 
denied and questioned. In tJie case of Shomo vs. Bobe de- 
cided at the present term, we had occasion to express our 
views on the subject of alienation in general, and we desire 
to refer to them in connection with this case. 

On this subject before referring to authorities more 
directly in point, it may be well to refer to the general law 
as well as to the reasons for its existence. "A convevance 
to B. in trust or for the use of C, or where only the equita- 
ble title passes as in case of a conveyance to B. to the use 



ADJOUBNED T. AT TALLAHASSEE, 1855. 447 

Sanderson vs. Jones, et al. — Opinion of Court. 

of C. in tniBt for D. The trust in this last case is execu- 
ted in D. though he lias not the legal estate." 4 Kent 
305. 

Our own Legislature in the law passed to secure the 
rights of married women gives the right of disposal to the 
man and wife. We will add that in speaking of 
the power of alienation, Blackstone says: "we must 
consider rather the incapacity than capacity of the 
several parties, for all persons in possession are prima 
facie capable of conveying and purchasing, unless the law 
has laid them under peculiar disabilities," &c. and among 
these he enumerates persons attained of treason, idiots, 
&c. &c. 2 Black. Com. 290. 

Whilst such is the general rule, we shall find no diver- 
sity as to the particular subject of inquiry. "A perpetu- 
itv will no more be tolerated when it is covered with a 
trust, than when it displays itself undisguised in a settle- 
ment of the legal estate." 1 Lewis on Trust, 138. 

" It is absolutely against the constant course of Chan- 
cery to decree a perpetuity, or give any relief in that case. 
1 Chan. Reports, 144; 5 Jac. Law Die, 143. 

Blackstone in his commentaries, speaking of the chan- 
ges made by courts of equity in the doctrine of uses, says: 
" They have raised a new system of national jurisprudence 
by which trusts are made to answer in general, all the 
beneficial ends of uses, without their inconvenience and 
frauds. The trust will descend, may be alienable, is lia- 
ble to debt«, to executions on judgments, &c." 2 Black. 
Coms., 337. 

"The prima facie rules of trusts, is that the intention of the 
settler shall be carried into effect, but the intention cannot 



448 SUPBEME COURT. 



SondcraoD vs. Jones, et al. — Opinion of Court. 

be pursued when it contravenes the public policy of the 
law/' " So trusts cannot be created with a proviso that 
the interest of the cestui que trust shall not be aliened, or 
shall not be subject to the claims of creditors. If it can 
only be ascertained that the cestui que trust, was intend- 
ed to take a vested interest, the mode in which, or the 
time when the cestui que trust was to reap the benefit, is 
perfectly immeterial, the entire interest may either be dis- 
posed of by the act of the cestui que trust, or may become 
vested in his assignees by operation of law." Lewis on 
Trusts, 137-8; 6 Simon, 524; 1 R. and W., 395; 1 Simon, 
ee ; 18 Vesey, 429. 

In one of these cases, the Lord Chancellor says, "there 
is no doubt, generally speaking, that if property is given to 
a man for his life, the donor cannot take away the incident 
to a life estate. Equity making a feme the owner of it, and 
enabling her as a married woman to alien, might limit her 
power over it, but the case of a disposition to a man, who 
if he has tlie property has the power of aliening, is quite 
different," 6 Simon, 434. 

"A trust is assignable. An equitable interest may be 
assigned, tliough it be a mere possibility, and either with 
or without the intervention of the trustee, and the assignee 
of the cestui que trust may call upon the trustee to convey 
to him, and on his refusal may file a bill to compel a con- 
veyance without making the assignor a party." licwin on 
Trusts, 499; Philips vs. Bridges, 3 Vesey, 127; Goodear vs. 
Ellison, 3 Russ. 583. 

In Lady Arundel vs. Phipps, which was a settlement to 
the use of Lord and Lady Arundel for their lives and the 
life of the surivor, Lady Arundel became equitable owner 



ADJOUBNED T. AT TALLAHASSEE, 1855. 449 

Sanderson vs. Jones, et. al. — Opinion of Court. 

of goods and chattels, and she became so under a contract 
of purchase which she insisted she was entitled to make 
with her husband himself, and her purchase was sustained 
agiinrt the crcditcrs of the husband. 10 Vesey, 140-7-8. 

In Ford, trustee, vs. Caldwell, the deed conveyed to the 
joint use of husband and wife for life, not subject to their 
debts, and after the death of either, to the use of the survi- 
vor for life, and after the death of the survivor to the use of 
the children of the marriage. Speaking of this state of facts, 
the Supreme Court of South Carolina, Judge O'Neill pro- 
nouncing the opinion of the court, says : " I hold, the trust 
was executed in the husband, at least for his life. For, ac- 
cording to the deed, he was entitled to the posession of 
the slaves ; having this, he had both the legal and equitable 
estate for his life. For the trustee had nothing to do with 
it during this time, he had delivered the slave to one who 
was under no legal disabilities; this was equivalent to a 
conveyance to him for the time he was to possess it. For 
the condition annexed to the trust, not to be subject to the 
debts or contracts of the husband and wife, is void. The 
husband having both the legal and equitable estate could 
transfer it, which he did, to Chur." The general property 
was in Ford, trustee, but he had parted with the right to 
possess it to the cestui que trusts. Swift and wife, for life. 
At law, the wife's being and rights are merged in the hus- 
band, and hence his possession for the joint use of himself 
and wife for life, made the property for that time his entire 
qualified legal estate. This was a suit at law instituted by 
trustee against the purchaser. 3 Hill, 429. 

In Love vs. Hodges, which was to a trustee for hus- 
band and wife, the same court quote the same case as 



450 SUPEEME COURT. 

I 

Sanderson vs. Jones, et al. — Opinion of Court. 

follows : " In personal estate the legal estate remains in 
the trustee until he executes the trust by delivering the 
possession to one capable of holding in himself a legal es- 
tate in the property to the extent of the interest intended 
to be conferred by the deed. In this case the trustee had 
nothing to do with the property during the life of the hus- 
band. He had delivered the slave to one who was under 
no legal disability. This was equivalent to a conveyance 
to him for the time he was to possess it." 1 Spears, 596. 

An idea prevails that though the income and profits may 
be assigned, yet the body, the corpus of the estate, may 
not be. If this be the case, we have not perceived it in 
the general rule stated nor in the particular cases cited. 

There is another aspect of the case worthy of consider- 
ation. Suppose a decree made in favor of Mrs. Harrison, 
as contended for, and the property restored, who would 
take the possession, who be entitled to the income during 
the life of Harrison ? The answer is not a difficult one, 
the husband, Harrison himself, and no other person, so that 
the suit may be regarded, and properly cannot be regarded 
in any other light, than as one instituted by him and for 
his benefit against his own assignee. 

Were these authorities less clear and satisfactory than 
they seem to us to be, we yet think the decree in favor of 
Sanderson against Harrison conclusive as far as his pos- 
session of the property, his interest in it and his power of 
alienation are concerned. It was the decision of a court 
of competent jurisdiction as to these issues on the subject 
itself, and whetlier erroneous or not it constitutes the law 
of the case. We shall not undertake to say that this de- 
cision is conclusive on Mrs. Harrison in .every possible 



ADJOURNED T. AT TALLAHASSEE, 1855. 451 

Sanderson vs. Jones, et. al. — Opinion of Court. 

• 

aspect of the case. It is sufficient that the facts presented 
by the record do not remove such conclusion. As far as 
tlie facts of this case are concerned, we have possession 
by tlic l.usband of the trust property for near forty years 
to the present time — tliirty years prior to the transfer to 
Mrs. Sanderson, with receipt by him of the income, profits, 
&c., without interference by tlie trustees, alienation by the 
father and husband so possessed to his daughter, possession 
by the latter and the riglit of her husband confirmed and 
established bv decree of the court. 

As far as tlie law is concerned, we find Robert Harrison, 
the husband, rightly entitled to the possession of the prop- 
erty, to the income and profits arising from it, — that he had 
a right to sell to the extent of his interest, and his assignee 
to hold it. 

We have not returned to the fact that the assignment to 
Mrs. Sanderson does not conflict with the main design of 
the deed of trust, but is merelv in advance of it. The 
children of the marriage are expressly provided for in the 
settlement. Nor is the case altered by the fact, that by 
the dispensation of Providence the husband, rather than 
the wife, is before us claiming the benefit of the last set- 
tlement. He has been decided to be entitled to her rights 
and interests, and is entitled to the same favorable consid- 
eration that she would be if contending for the property 
herself. 

It remains to dispose of the case as far as the children 
of Mrs. Harrison are concerned, who claim the remaining 
interest after the termination of the life estate. The 
question of their interest can only be before us for one 
purpose, and that is for the protection of the property, so 



452 SUPBEME COURT. 

Sanderson ts. Jones, et al. — Dissenting Opinion. 

• 

that they may assert their interest when it comes into ex- 
istence. This they may be entitled to obtain from the 
court, on a proper showing by a bill quia timet. If the 
property is in danger of being diverted and squandered, 
and they have the interest contended for as against San- 
derson, they may obtain relief from the court. 1 Story 
Eq., 5827. Osborne vs. VanHom, 2 Fla. 361. 

We have not considered whether, if Robert Harrison, by 
any casualty should become unable to support his wife, 
she might not have a right to call upon Sanderson to con- 
tribute to the extent of his interest. Such case has not 
been presented by the proof nor the pleadings, nor have 
we thought proper to determine the question of her right 
in the event of his death and her surviving. These ques- 
tions will be appropriately decided when properly pre- 
sented. 

The decree of the Circuit Court overruling the demurrer 
will be reversed and set aside, and the case remanded with 
directions to dismiss the bill of complaint and dissolve the 
injunction without prejudice to other rights and interests 
than those now determined. 

DuPONT, J. Delivered the following 

DISSENTING OPINION. 

The demurrer in this case raised numerous interesting 
questions, both with respect to the form and substance of 
the bill, all of which were very elaborately and ably 
argued by the counsel engaged on either side. In the 
opinion delivered by the Chief Justice as the opinion of the 
court, there is no reference to the points made by coimsel 
in regard to the form of the bill, but the views of the 
court are confined exclusively to the substance. In em- 



ADJOURNED T. AT TALLAHASSEE, 1865. 453 

Sandenon ts. Jones, et al. — DissentiDg Opinion. 

bodying my dissent, which reaches as well to the judgment 
pronounced, as to the reasoning upon which that judgment 
is founded, I shall restrict myself entirely to the positions 
assumed in the opinion^ and pass by the points made by 
counsel, without reference thereto any further than may 
be necessary to elucidate or give consistency to my views. 
I have endeavored to analyze the opinion and to extract 
from it the distinct propositions, upon which the argument 
seems to be based and these several propositions. I shall 
now proceed to notice in the order in which they occur. 

First. It is assumed in the opinion, that the words of the 
deed of settlement, executed in anticipation of her inter- 
marriage with the defendant Robert Harrison, did not 
create a separate estate for Mrs. Harrison, and the fol- 
lowing words quoted from the deed of settlement are refer- 
ed to in support of that position, viz: "to the use, benefit 
and behoof of himself and wife." 

I readily admit that such words do not ordinarily, 
according to the authorities, create a separate estate for 
the wife, they not implying by themselves, an intention to 
exclude the marital rights of the husband. The doctrine 
on this subject depends, for the most part, upon implica- 
tion and construction. The rule is, that where by the 
terms of the deed, or settlement, the intention to exclude the 
marital rights of the husband, is already expressed, or can 
be reasonably implied, in such case a trust for the wife 
will be declared. No particular form of words is essential; 
the intention to exclude the marital rights of the 
husband is all that is required to be shown. Clancy 
on Hus. and Wife 262, 2 Brighfs Hus. and Wife, 211, 2 
Story's Eq. Ju. 51381. 



454 SUPREME COURT. 



Sanderson vs. Jones, et. al. — Dissenting Opinion. 



Now supposing that there were no other words in this 
deed defining tlie objects of the settlement, and the inten- 
tion of the grantor, than those quoted by the court, is no 
implication to be deduced from the fact that the hmband 
himself was the settler or grantor? What object other 
than tlie exclusion of his marital rights could have induced 
him to execute the deed ? If the property, notwithstanding 
the solemn execution of this marriage settlement, was still 
to be subject to the marital or common law rights of the 
husband, tlien the deed was wholly nugatory; nay, it be- 
came a solemn mockery, a ridiculous farce, a heartless 
fraud, perpetrated at the very base of the hymenial altar, 
and in the immediate presence of tlie great I AM ! ! 

The case of Tyrrel vs. Hope (2 Atk. R. 558) is directly in 
point and fully sustains me in this view. Lord Hard- 
wicke held that a promise in writing from the intended 
husband to the intended wife, that "she should receive and 
enjoy the issues and profits of one moiety of the estate then 
in the possession of her mother, after the decease of her 
mother," gave to the wife an estate to her separate use. 
Such asFu redly would not have been the effect and opera- 
tion of those words, had the settlement been made bv a 
third party; but being made by the intended husband, his 
Lordship said that the stipulation could bear no other con- 
struction, although the words ^'separate use" were not to 
be found in it, for as he very justly remarked, to what end 
should she receive the rents and profits, if they became 
tlie property of the husband the next moment ? Upon the 
same principle it is, that gifts and presents from the hus- 
band to the wife, though made after marriage, will be 
supported in equity against himself and his representatives; 



ADJOURNED T. AT TALLAHASSEE, 1855. 455 



Sanderson xn. Jones, et al. — Dissenting Opinion. 



and such gifts will be considered as the wife's separate 
property, (Vide Atherly on Marriage Settlements 231, citing 
Lucas vs. Lucas 1 Atk. E. 270.) Now it is clear that all 
gift's or present's to the wife of personal property, made in 
a third party or stranger, where there is no express stipula- 
tion that it shall be to her separate use, becomes immedi- 
ately the property of the husband, jure mariti. But the 
gift being made hy the husband, the conclusion of law is, 
that it was his intention that it should enure to her sepa- 
rate use. Vide Steel vs. Steel 1 Tnd. Eq. R., 452, cited in 
Hill on Trustees 420, (margin) where it is held "that a con- 
veyance by a husband in trust for his wife, will also be 
necessarily for her separate use; otherwise the disposition 
would be futile." 

But there are other words to be found in this deed (not notic- 
ed or referred to in the opinion of the court,) which conclusive- 
ly settles the interpretation to be given to the deed of set- 
tlement. It is expressly provided that "the property con- 
veyed is not to be liable to the payment of any debt, judg- 
ment, execution, account demand or otherwise'' of the hus- 
band, and this stipulation is coupled with a proviso "that 
the husband and wife, with the approbation and assent of 
the trustees, may at any time, by writing or writings un- 
der their respective hands, and attested by two or more 
credible witnesses, revoke, and make void, alter and 
change, all and every of, or any of the trusts or estates 
hereinbefore limited &c." Now if these two stipulations, 
do not each of them clearly indicate the intention to ex- 
clude the marital or common law rights of the husband, 
(and that is all that is required, in order to create a sepa- 



466 SUPREME COUET. 



Sanderson vs. Jones, et al. — Dissenting Opinion. 

rate estate for the wife) then I confess that I am unable to 
appreciate the import of language. 

The position of the court, however, seems to be baaed 
upon this view, that because the settlement is to the joint 
use of husband and wife, therefore no separate estate could 
be created in the property. In the language of the author- 
ity cited from 2 Porter, "the wife must have the exclusive 
property in tlie gift, without which Courts of Equity will 
not suffer the legal rights of the husband to be superced- 
ed.^' If by the phrase "exclusive property ,'' it is intended 
to assert that the wife may not enjoy a '^separate estate" 
jointly with the husband, then it is very manifest that the 
error of the position originates in the confounding of the 
two terms "separate estate" and "estate in severalty." 
These several terms have each a precise technical mean- 
ing, and the existence of the latter is by no means depen- 
dant upon the former. By the term "separate estate" I 
understand to be meant, such an estate as may be enjoyed 
by the wife, exempted from the marital or common law 
rights of the Imsband, and that such enjoyment by the wife 
may be either in severalty or joint-tenancy. Indeed, the 
books of reports are full of such cases. The authority of 
2 Porter, cited to this point in the opinion delivered by the 
court, I have examined and find it to be a case in which 
the deed, under which the wife claimed, conveyed a strictly 
legal title, and consequently it can have no bearing on the 
case under consideration. A "separate estate" is exclu- 
sively the creature of equity, and when the deed conveys 
the legal title to the wife, eo instanti, the property, if it be 
personalty, becomes according to the rules of the common 
law, the property of the husband. In the case cited, the 



ADJOUENED T. AT TALLAHASSEE, 1855. 467 

Banderaon t8. Jones, et al. — Dissenting Opinion. 

property was conveyed directly to the wife by her father 
but to be held "to the only proper use and behoof of the 
husband and wife during their joint lives, and to remain in 
their joint use and possession, for the use and support of the 
said Bachel and James, (husband and wife) and none others/' 
It is very clear that the terms of the deed created a purely 
legal estate in the husband and wife, there being no words 
from which an intention to exclude the common law rights, 
of the husband could be inferred. 

The question raised in the case cited from 9 Simons was 
simply, whether the words of the deed created a separate 
estate for the wife, and is as dissimiliar in the facts as it is 
inapplicable to the law of this case. 

I have been equally unfortunate with the court, in not 
having been able to procure access to the two cases cited 
to the same point from 12 and 21 Alabama R. and also 4 
Ired. ; but I will venture the assertion, that although in 
those cases the property may have been settled to the joint 
use of the husband and wife, yet upon examination it will 
be found that there were no words in the deed expressly 
excluding the marital or common law rights of the hus- 
band, or from which such intention could be reasonably 
implied. 

I am forced then to the conclusion, with all proper def- 
erence to the opinions of my respected associates, that the 
deed of settlement executed by the defendant, Harrison, in 
contemplation of his marriage with the complainant, Mary 
B. Harrison, did create in her a separate estate, to be en- 
joyed by her jointly with her husband, free from the opera- 
tion of his marital or common law rights. 

The position is assumed by the court, secondly, that the 



458 SUPREME COURT. 

Sanderson vs. Jones, ct. al. — Dissenting Opinion. 

settlement being to the joint use of the husband and wife, he 
(Harrison) was entitled to receive the issues and profits of the 
property, and consequently had the right to dispose of the cor- 
pus of the estate. The language of the court on this point is 
as follows : "even if the wife have a separate estate, the en- 
quiry arises as to the interest of the husband Robert Har- 
rison in the property conveyed; and the broad ground has 
been taken that he had none that he could convey. It is 
very clear that he has an interest if she has one, and if he 
has none she is in the same condition/' The court then 
proceed to cite authorities to show that where the property 
has been settled to the joint use of husband and wife, he is 
entitled to receive the income of the same. 

It is a misapprehension on the part of the court to sup- 
pose that there has been any denial of the position, that 
Harrison has an assignable interest in the property. It is 
admitted that he has, but the question is as to the quality 
and extent of that interest. Without intending to admit 
the applicability of the authorities cited to this point, I 
readily accord to the husband the right to receive the issues 
and profits of an estate settled as this is; and I moreover 
yield to him the right to dispose of them (i. e. the issues and 
profits) provided such disposition do not defeat or impair 
the object and design of the settlement ; but I do contest 
his right to alienate the corpus of the estate. His interest 
in the property is only a joint use, and he may not assign 
a larger estate than he has under the deed of settlement; 
the entire corpus of the estate must remain intact, (vide 
Blake vs. Irwin, 5 Geo. R. 345 ; Cadogan vs. Kennett, C!ow- 
per's R. 432). In this latter case the court remark: "If 
Lord Montford had left his house wtih the furniture, or if 



ADJOUBNED T. AT TALLAHASSEE, 1855. 459 

Sandenon vs. Jones, et al. — Dissenting Opinion. 
c 

the rent could be apportioned, the creditors would be enti- 
tled to the rent, but they have no right to take the goods 
themselves; the possession of them belongs to the trus- 
tees." 

I have not had access to the cases cited in the opinion 
from 3 and 12 Simons, but have examined those cited from 
4 Dess., and 1 Speer, and I find that they both fully sustain 
the view that I have taken of this question. 

The case of James vs. Marant, 4 Dess. R., 591, was upon 
a bill filed by a creditor, to subject the "profits and pro- 
ceeds" of trust property, settled to the separate use of the 
wife, to the pajinent of a debt incurred for the benefit of 
the estate. There was no attempt to reach the corpus of 
the estate, the prayer of the bill asking only to subject the 
''profits and proceeds," and the decree of the court was ac- 
cording to the prayer, that the trustee do account with 
the complainant, before the commissioner for the annual 
income of the trust estate, until the debt be paid.'^ In the 
quotation from the opinion delivered in that case, and cited 
by this court, it is said "under such a settlement the cred- 
itors of the husband, would not be allowed to deprive the 
wife of her maintainance," and if not, I may ask upon 
what ground will it be permitted to a party, with full 
notice and without a valuable consideration, to take to him- 
self the corpus of the estate, out of which that maintain- 
ance is to accrue? 

The case of Napier vs. Wightman, (1 Speer Eq. R., 357,) 
also cited in the opinion of the majority, is a very strong 
authority in support of my views on this point. In that 
case, it was determined that the deed was not a marriage 
settlement, and further, that there was no separate estate 



460 SUPREME COURT. 



Sandersdn vA. Jones, et. al. — Dissentlns Opinion. 

created by it, but that the trust was for the joint use of the 
husband and wife, and not exempted from his marital rights; 
and yet, notwithstanding the existence of the legal rights of 
the husband to control and appropriate the proceeds of the 
estate, inasmuch as the deed created a trust, the court yeiy 
properly refused to go further than to subject the income of 
the estate, for the joint lives of the husband and wife, and 
one-half of the personalty, saving the life of the wife, 
to the payment of the husband's debts. No stronger case 
than this need be cited to support my position. 

A third and the main position assumed in this opinion is, 
that the trust becoming executed in the husband, by the de- 
livery of the possession, he thereby acquired the legal estate, 
and consequently the right to convey it. 

There is doubtless much refined learning upon this very 
subtle subject of executory and executed trusts, and with 
the principles of the decided cases for our only guide, it not 
unfrequently becomes somewhat difficult to determine when 
a trust has been executed, or is only executory. But how- 
ever true this may be in respect to ordinary trusts, I will 
venture the assertion, that in regard to trusts arising under 
marriage settlements, where a separate estate is created for 
the benefit of the wife, (whether that estate is to be enjoyed 
by her in severalty, or as a joint usee with her husband,) 
the doctrine that the delivery of the possession operates as 
an execution of the trust does not obtain. 

As applicable to the facts of this case, it may be further 
observed, that the refinements and complications attending 
conveyances, or devises to uses, are confined to assurances 
of real estates, and are seldom encountered where the sub- 
ject of the settlement is of personalty. (Vide Watson vs. 



ADJOUBNED T. AT TALLAHASSEE, 1865. 461 

Sanderson vs. Jones, et. al. — Dissenting Opinion. 

Pitts, cited in 1 Speer's Eq. B., 587.) It seems also that 
the intention of the settler, as it may be gathered from the 
terms of the instrument, ought to prevail. If the object 
and design of the settlement will be defeated by the ap- 
plication of the doctrine, it will not be permitted. Hill on 
Trustees, 233. 

In the case of Harton vs. Harton, 7 T. R., 652, which 
was a settlement in trust for a feme covert, to permit her 

« 

to receive the rents for her separate use, Lord Kenyon 
held that in order to effectuate the testator^s intention, the 
legal estate must be declared to reside in the trustees; 
otherwise, if the trusts were held to have been executed in 
her, the husband would be entitled to receive the profits, 
and so defeat the object of the devisor. 

As specially applicable to the point now under review, 
I refer to the case of Blake vs. Irwin, 3 Georgia R., 345, 
the facts of which are made to coincide with those of this 
case, in a most remarkable degree. That case, like this, 
arose out of a marriage settlement — the property was vest- 
ed in trustees, to be held in trust for the use of the husband 
during his life. He was to have the entire possession, and 
to exercise reasonable ownership over the property, and 
to alter and change the same, by and with the consent of 
the trustee^, provided it was for the benefit of the trust es- 
tate. If the wife survived the husband, then she was to 
have the entire use during her natural life, with the power 
of disposing of one half thereof by will, and in the event, 
of offspring between them, the whole estate to vest in the 
child or children, the trustees to have a right at any time 
with the consent of both husband and wife, to re-settle the 



462 SUPREME COURT. 



Sanderson vs. Jones, et al. — Dissenting Opinion. 

property. It will be perceived that this is not as strong t 
case in one material particular, as the case before us. 

In the case under consideration, the property was settled 
in the first place (immediately after the consummation of 
the marriage) to the joint use of Harrison and wife for life; 
in the case cited, it was so settled to the separate use of the 
husband. The corpus of the estate was levied upon under 
common law process, for the husband's debts, and after the 
most searching and elaborate argument of able counsel on 
both sides, it was held that "the legal title remained in the 
trustees, and that the equitable interest of the husband in 
the property was not liable to be seized and sold by the 
Sheriff, under an execution at law, but that the proper 
remedy for the creditors was in a Court of Equity.^' The 
position assumed by my respected associate was critically 
examined by both the counsel and court, and indeed was 
the only one upon which the plaintiff in execution relied. 
Judge Lumpkin, in a very able opinion delivered in the 
case, has set forth the true doctrine in so clear a light, that 
I need do no more than quote his language. " In behalf of 
the creditors/' says he, '*it is insisted that even if the statute 
of uses and the 10th section of the statute of frauds, did 
not apply to personalty, that still the very deed itself con- 
veys the possession to the use, and transfers the use into 
possession, thereby making Blake the complete owner of 
the property, as well in law as in equity. It is true that 
the entire use is given to him, but it is the use only and not 
the corpus. It is also true that he is entitled to the posses- 
sion, but that possession is evidently not an inherent right 
by virtue of the estate which he held, but bestowed upon 
him as an agent rather of the trustees.'' Again, he re- 



ADJOURNED T. AT TALLAHASSEE, 1855. 463 

Sanderson vs. Jones, et. al. — Dissenting Opinion. 

marks, "It is difficult to lay down a distinct rule showing 
when a trust is and when it is not executed. The cases of 
Cardwardine vs. Cardwardine, 1 Eden R. 33, and Leices- 
ter vs. Leicester, 2 Taunt. R. 109, would prove that it is not 
sufficient to prevent the estate from being executed, that 
the trustee has something to do; but it would seem that 
whenever the object of the trusts would be defeated by its 
being executed, as in cases of trusts for married women, or 
to preserve contingent remainders, or where the trustee has 
some discretion to be exercised in relation to the estate, or 
where there is some object to be effected by the estate re- 
maining in the trustee, that in all such cases the instrument 
will be construed not to convey and execute trust. And he 
cites to this point Posey vs. Cooke. 1 Hill R, 414, Laurens 
vs. Jenny et al. 1 Speers L. B. 366. Mclntyre vs. Agricul- 
tural Bank et al.; 1 Hills Ch. R. 111. 

His honor goes on further to remark, "marriage settle- 
ments have the sanction of immemorial usage and of the 
most enlightened part of the human race; and this Court 
would be recreant to its duty, to permit the rules of law 
to be strained to defeat the end to which this contract was 
intended. It is true that the use of this property is given 
to the husband for life, but then he cannot alien without 
the consent of the trustees, and for the advantage of the 
wife of a maintenance, even if l)e derived it out of this 
property. Her interests, therefore, are essentially protect- 
ed by this deed, independently of the power reserved of 
resettling the estate. To allow it then to be sold at law, 
to pay the husband's debts, would be to defeat the very 
end for which the trust was created .'' 



464 SUPEEME COURT. 

Baadenon ts. Jonei, et. ol. — Dlnentliig Oplnloa. 

With how much greater force will this reasoning applj 
(as in the case before us) to a party who claims agains; 
the trust, not as a creditor, nor as a bona fide purchaser with- 
out, notice, but as a mere volunteer with full notice of ths 
trust, and without having given any value for the title. 

This doctrine of executed trusts was again brought under 
review in the same Court, in the case of Wynn vs. Lee, 5 
Geo. R. 217, and the case of Blake vs. Irwin was referred 
to and approved. Nisbet J. in delivering the opinion of 
the Court remarks : " The defendant in the Court below in- 
sisted that Mrs. McMillan, the cestui que truest, having pos- 
session of this slave from her trustee, Lee, the deed of trust 
was executed, and that he as trustee, could not maintain 
trover for him. The Circuit Judge disaffirmed this doc- 
trine, and so do we. The legal estate was in the trustee; 
of that, he had never been divested. The trust was not 
alone for Mrs. McMillan; it was also for her children. It 
was not a trust consummated when the slave was deliver- 
ed in her possession. She would not, by a sale defeat the 
limitation over to the children. The trustee held the legal 
title for the purposes of the trust, and was entitled to the 
possession as against strangers to the deed, at law, as 
against Mrs. McMillan herself. We think the Court was 
right in sustaining the action.'' (Citing Lewin on Trusts, 
247 and 481; Willis on Trustees, 72, 73, 77, 84, 109, 482; 
Blake vs. Irwin, 3 Geo. R. 345; Hill on Trustees, 274; Good- 
title vs. Jones, 7 T. R. 47., 4 Bam & Aid. 745, and Jones 
vs. Jones, 3 Bro. C. C. 80.) 

But I need invoke no stronger authority to sustain my posi- 
tion, than the cases from South Carolina, cited to this point in 
the opinion of the majority. The views expressed by Judge 



ADJOURNED T. AT TALLAHASSEE, 1856. 465 



Sanderaon vs. Jones, et al. — Dissenting Opinion. 

O'Neall in deciding the case of Ford vs. Caldwell, do seem to 
favor the doctrine contended for by this court; but it will 
be seen by reference to his honor's opinion delivered in 
the cases of Rice vs. Burnett and Joor vs. Hodges, after- 
wards decided in the Court of Appeals of South Carolina, 
(1 Speer^s Eq. R. 602) that he took occasion to modify and 
limit those views very much, if indeed he did not recant 
them altogether. With respect to these two cases he re- 
marks: "In these cases I concur in the judgment of the 
court, by which the motion is dismissed in the first case, 
and the decree is reversed in the second, but I came to my 
decision for reasons different from those mentioned by my 
brother (Chancellor Dunkin) in the judgment just read. I 
still adhere to the doctrine, that a trust in personalty, is a 
mere bailment, and that it is executed, exactly according to 
the purpose intended by the donor, and to the extent pointed 
out in the deed, by the delivery of the possession to the 
cestui que trust/' 

After proceeding to enforce this position in an elaborate 
argument and by the citation of numerous authorities, he 
closes by remarking in reference to the cases which had 
been just decided. "So much for the principle which I 
suppose these cases are to overturn. In the cases themselves 
according to the principles which I have maintained, there 
is no difficulty. In both the trust is partially for a mar- 
ried woman, incapable of acting sui juris, something still 
remains to be done by the trustee, showing that the posses- 
sion is not absolutely in the husband. Both are antenup- 
tial settlements. In the first case, the property may be 
sold by the trustee and the cestui que trusts and the pro- 
ceeds invested in other property. This shows that the 
31 



466 SUPBEME COUBT. 

Sanderson vs. Jones, ct. al. — Dissenting Opinion. 

possession was to be permissive only, a mere tenancy at 
will, if we can properly use such terms about personality. 
In the other case, at the death of each, he is to assi^ 
transfer and set over the property to the next one entitled. 
This also qualifies the possession. But it is said that this 
conflicts with Ford vs. Caldwell, it does not so seem to 
me. There the settlement was post-nuptial^ the posses- 
sion was never changed, it was in the husband all along; 
there was nothing to be done by the trustee, for the life of 
the husband. His possession was absolute for his life and 
when he sold the slaves, I do not see how the trustee could 
recover them from his alienee. So far as he and 
the trustee were concerned, the trust was executed and 
that was all that case decided." 

It is very evident from the tenor of these remarks that hifl 
honor did not intend to be understood as sanction- 
ing the doctrine, to the extent to which it has been 
carried by the majority of the court, in this case, if indeed, 
he did not expressly repudiate such an application of it 
But however, that may be, it is quite certain tliat this 
doctrine, as thought to be announced in Ford vs. Caldwell 
was expressly overruled, in the two cases of Rice vs. Bur- 
nett (1 Speers p]q. R. 590) and Joor vs. Hodges 
(lb. 593.) 

Chancellor Dunkin in a very elaborate and well consid- 
ered opinion, delivered in the former case, reviewed the 
whole doctrine of executed trusts, and expressly repudiated 
the principles assumed in the case, of Ford vs. Caldwell, as 
the ground of the judgment rendered therein. He re- 
marks: "So in Ford Trustee, vs. Caldwell, the deed was 
a gross fraud upon creditors and void by the common law, 



ADJOURNED T. AT TALLAHASSEE, 1855. 467 

Sanderson vs. Jones, et. al. — Dissenting Opinion. 

but a majority of this court is of opinion that it cannot be 
safely rested upon the principles therein assumed. For my- 
self I think it best that the rules of the common law, and 
the practice of the country, as I suppose it to have existed 
until 1832 should prevail. Deeds of this character should 
be construed according to their plain intent and meaning. 
The legal estate should continue in the person to whom it 
is transferred, until the property is to be delivered to those 
for whom an absolute estate is provided. If those who are 
entitled to the intermediate use for life or years, should at- 
tempt to remove or destroy the property, there exists no 
good reason why he, to whom the legal estate was trans- 
ferred, and probably in reference to these very contingen- 
cies, should not have the authority promptly to interfere 
to assert his legal rights and prevent the destruction of the 
trust property. If on the other hand those entitled to' the 
equitable use for life, or any other equitable interest are 
indebted, their creditors should resort to the appropriate 
forum. If creditors were compelled to come into inquity, 
for the purpose of making the husband's interest liable, 
there are various equities by which their claims might be 
rebutted." 

It will thus be seen that the principle, as thought to be 
announced in Ford vs. Caldwell, which is chiefly relied on 
by this court, as the ground of their judgment in this case, 
if not repudiated by Judge O'Neall (and I think it is) has 
been emphatically rejected by the subsequent decisions, of 
the same court. And I may add that all of the foregoing re- 
marks, of the learned Chancellor, with respect to credi- 
tors, will apply with ten-fold force to a mere volunteer pur- 



468 SUPBEME COURT. 



Sanderson vs. Jones, et al. — Dissenting Opinion. 

chaser, as is the claimant in the present case, according to 
the admission of the demurrer. 

I have also the authority of Chancellor Harper to sup- 
port my position. It is true that when the case of Joor ys. 
Hodges came before him at chambers, he decided it in ac- 
cordance with the doctrine contended for bv this court, but 
in doing so he showed his disapprobation of the doctrine 
in a most marked and emphatic manner, and took occasion 
to declare that he made the decision under the pressure 
of the decided cases, and it was at his instance that the 
point was carried before the appellate tribunal for re- 
view. After commenting upon the several cases which 
had been previously decided by the Court of Appeals of 
South Carolina, (Ford vs. Caldwell amongst the rest) in 
which it was supposed that the doctrine had been sanc- 
tioned, he very significantly remarks: "If indeed when 
property is conveyed in trust, for the joint U5e of hus- 
band and wife for life, the use is to be executed in the hus- 
band, so as to render it liable at law to his crMitors." I do 
not perceive what purpose is answered, by having a trustee 
to a marriage settlement." He then closes his opinion 
with the following observations: "But still if the execution 
of the trust depends on the right of possession, and the actual 
possession, I must, according to the cases decided, declare 
it to be so executed in this instance, so as to render it lia- 
ble to creditors at law. It is said in P3rron vs. Mood, that 
in equity, if the purchasers had notice of the trusts, the 
rights of the wife might possibly be protected. But if the 
property be liable at law, I know of no ground on which 
equity could interfere. I am bound to follow the law. / 
am not well satisfied with my conclusion, and wish 



ADJOURNED T. AT TALLAHASSEE, 1855. 469 



Sanderson vs. Jones, ot. al. — Dissenting Opinion. 



that it may be revised by an appellate tribunal. 1 Speer's 
Ep. B. 597-8. 

I have been unable to discover the relevancy of the sev- 
eral citations from Kent, Blackstone, Lewin on Trusts, and 
others, in reference to "conditional estates" and "perpetu- 
ities," and therefore do not appreciate their force as applied 
to the facts of this case. If it were intended by these ci- 
tations to intimate that the estate created by the deed of 
settlement in this case, contains any one element of either 
a "conditional estate" or a "perpetuity," I can only observe 
that, in my opinion, it is clearly a misapprehension of the 
purport, design and legal effect of the deed. 

The next position assumed in the opinion of the court is, 
that this suit is to be regarded as instituted by Harrison 
(the husband) for his own benefit. By what process the 
court have arrived at this conclusion, I am unable to per- 
ceive. Harrison is a defendant in the bill and not a com- 
plainant. No answer has been filed that I am aware of, 
but the case comes before us simply upon general demurrer, 
and we are therefore bound to take the facts to be as they 
are stated in the bill. Besides., if it be permitted to the 
court to advert to presumptions, it seems to me that the 
legal presumption would be, that it was his interest to pro- 
tect his own conveyance," 

In order that I may not misrepresent the views of the 
court as set forth upon another distinct branch of the cause, I 
will quote the language of the opinion in reference to that 
point: "The decree," say the court, "in favor of Sander- 
son against Harrison is conclusive as far as his possession of 
the property, his interest in it, and his power of alienation 
arc concerned. It was the decision of a court of compe- 



470 SUPREME COUET. 



Banderaon vs. Jones, et al. — Dissenting Opinion. 

tent jurisdiction as to the issues on the subject itself, and 
whether erroneous or not it constitutes the law of the caae. 
We shall not undertake to say that this decision is conclu- 
sive on Mrs. Harrison in every possible aspect of the case. 
It is sufficient that the facts presented by the record do not 
remove such conclusion." 

It must be recollected that neither Mrs. Harrison or any 
other of the complainants in this case were parties to the 
suit, in which that decree was rendered; and it certainly 
will not be required of me to invoke the aid of authority 
to show that no person can ever be concluded by a decree, 
unless he were a party thereto, or a privy in estate. Such 
evidently is not the position of Mrs. Harrison or any of 
these complainants, and I am therefore utterly at a loss to 
perceive the principles of law or equity upon which the 
position of the court is based. 

But the limitation or qualification contained in the prop- 
si tion, is of itself fatal to the principle assumed. If the 
decree be conclusive against Mrs. Harrison as a complaian- 
ant in this suit, so as to deprive her of the corpus of her 
estate ; to what greater extent, I would respectfully inquire, 
can it ever be made to affect her interest in this property? 
The qualification then, to my mind, is wholly nugatory for 
any practical purpose — it is "making the promise to the 
ear and breaking it to the hope." 

Another position taken in the opinion of the majority is, 
that the conveyance of the property by Harrison to his 
daughter, Mrs. Sanderson, did not conflict with the main 
design of the marriage settlement, inasmuch as the chil- 
dren of the marriage were expressly provided for by the 
deed; and that such assignment was merely an anticipa- 



ADJOURNED T. AT TALLAHASSEE, 1855. 471 



Sanderson vs. Jones, et al. — Dissenting Opinion. 

tion of that design. The argument is more specious than 
Bound — it will not bear the test of examination. The very 
act of anticipation is in direct conflict with the primary 
and controlling design of the settlement, viz: the preser- 
vation of a life estate to the wife and mother, in all the 
property embraced in the deed of settlement. This act of 
anticipation, if operative, effectually destroyed her life es- 
tate pro tantOy and was a manifest infraction of the proviso 
contained in the deed, which stipulates that any alteration 
of the trust should be made only by the joint act of the 
husband and wife, and with the assent of the trustees. 
But again, what evidence is there in the record tending to 
show the proportion which this property bears to the 
whole estate; and consequently how the other remainder- 
men will be affected by the abstraction of this portion of 
the property, when the time limited for a final division of 
the estate shall have arrived. 

There are two questions in regard to Mrs. Harrison's pos- 
sible interest in the property in controversy, which the 
court, in the opinion delivered, expressly reserve as open 
questions, and desire to be understood as not concluded by 
their decision, viz; First, "whether, if Robert Harrison by 
any casualty, should become unable to support his wife, she 
might not have a right to call upon Sanderson to contribute 
to the extent of his interest." And secondly, '^er right (in 
the property) in the event of his (Harrison's) death, and 
she surviving him?" 

The very expression of a doubt upon either of these 
points is an entire surrender of the whole argument in re- 
gard to the position assumed in the opinion, viz : that the trust 
in this property had become executed in Harrison by the de- 



473 SUPREME COURT. 



Sanderson ts. Jones, et. al. — Dissenting Opinion. 

livery of the possession to him. The argument on that 
point, as I understand it/ was this: that the trust contained 
in the deed of settlement for the joint use of Harrison and 
wife, became executed in Harrison by the act of possession 
— that the trust becoming executed, invested him with the 
legal title to the property; this being added to the equitable 
title which he before possessed, gave him the entire inter- 
est in the property, with all the incidents of absolute own- 
ership; and being thus invested with an absolute estate, he 
had a perfect right to alienate the property, as he did. 

This was the argument as I understand it, and it is the 
only argument upon which the position assumed by the 
court, with respect to the trust having been executed in 
Harrison, can be sustained. If I have misapprehended the 
views of the court upon this subject of executed trusts, then 
the whole argument falls to the ground and the position 
with it. 

Now if it be true that Harrison thus acquired an absolute 
title to the property, with the consequent right of aliena- 
tion, what question can arise as to the extent of Sander- 
son's interest in the property conveyed? If Harrison 
acquired an absolute estate by the execution of the trust, 
Sanderson also acquired an absolute estate by the execu- 
tion of the conveyance to Starratt. The doubts expressed 
by the court would lead legimately to the inference, that 
they \dew Sanderson as standing in the relation of a trustee 
to this property, and as holding it coupled with the trusts 
of the original marriage settlement. Such a view of the 
matter, I again repeat, is a virtual surrender of the position 
assumed by the court, based upon the dectrine of "execu- 
ted trusts." But be that as it may, the doubts themselves 



ADJOURNED T. AT TALLAHASSEE, 1855. 473 



Sanderson vs. Jones, et. al. — Dissenting Opinion. 

« 

are eminently suggestive. It may transpire in the order of 
Providence, that Robert Harrison may, ^Hby some casualty, 
become unable to support his wife," and in the order of a 
like Providence it may occur that Sanderson, before the 
happening of such an event may have gone "to the bourne 
whence no traveller returns," and his estate been distribu- 
ted so as to be beyond the beneficient arm of the Chancel- 
lor. What, under such circumstances, would be the 
situation of Mrs. Harrison? WTiat her remedy? The 
answer embodied in the intimation of the court is, that she 
may pursue the property in whomsoever hands it might 
be foimd. But it may be beyond the reach of pursuit, and 
the effort wholy unavailing. Thus it will be seen that 
she whose comfortable support and maintenance was the 
special and primary design of a solemn deed of marriage 
settlement, made too at the interesting moment when, in 
the confidence of imsophisticated maidenhood, she was 
about to assume the responsible relation of wife, is to be 
referred, for the security of her covenanted rights, to the 
"casualties" of human life, and that too not by consulting 
the plain meaning of the written instrument, and the evi- 
dent intention of the settlers, bat by the rigid application 
of a doctrine of the law, whicii I hazard nothing in say- 
ing, has not the remotest application to the facts and cir- 
cumstances of the case. 

I now pass to that portion of the opinion which treats 
of the rights and interests of the remainder men. It is ad- 
mitted by the court that if they have the interest in the 
property for which they contend, they are entitled to file a 
bill quia timet, for its protection. The bill, nevertheless, 
was dismissed without considering their interests. Whether 



474 SUPREME COURT. 

Sanderaon vs. Jones, et. al. — Dissenting Opinion. 

or not this was the correct practice, or whether the bill 
should liave been retained on their behalf, and to the ex- 
tent of that interest, is left somewhat in doubt by the 
authorities. It is doubtless the general rule, that where it 
appears on the face of the bill, that some of the plaintiffs 
have no interest in the suit, if the misjoinder be taken ad- 
vantage of by demurrer, it will have the eflPect to dismiss 
the bill; but there are cases in which it is held that where 
the misjoinder consists not in the want of interest in some 
of the complainants, but only in their having been made 
plaintiffs instead of defendants, in such case the bill will 
be retained, and a decree made to the extent of the inter- 
est involved. 

If, however, the dismissal of the bill, so far as the remain- 
dermen are concerned, proceeded upon the assumption, that 
there was not sufficient in it to constitute it a bill ^uta 
timet, or upon the objection taken at the argument of the 
case, viz: that it was a compound bill of review, and quia 
timet, I am of opinion that either position is unmaintain- 
able. 

Without intending to indulge in a critical disquisition 
upon the necessary qualities of a bill quia tim,et, I ap- 
prehend that it will be found upon examination, that this 
bill contains all the allegations, charges and prayers, es- 
sential to constitute it a bill of that character. The objec- 
tion that it is a compound bill will not hold good. In the 
case of \\niiting vs. the Bank of the United States, (13 Pe- 
ters S. C. R., 6,) the Supreme Court of the United States 
say: "The present bill seeks to revive the suit, by intro- 
ducing the heirs of Wliiting before the court, and so far it 
has the character of a bill of Revisor. It seeks also to 



ADJOURNED T. AT TALLAHASSEE, 1865. 475 

Sanderson vs. Jones, et. al. — Dissenting Opinion. 

state a new fact, viz: the death of Whiting before the sale, 
and so far it is supplementary. It is therefore a compound 
bill of Review, of Supplement and of Revivor, and it is en- 
tirely maintainable as such, if it presents facts, which go 
to the merits of the original decree of foreclosure and 
sale." 

Having thus disposed of the several positions contained 
in the opinion delivered on the part of the majority, I will 
now proceed very briefly to state my views in regard to 
the merits of the case. 

By reference to the deed of settlement it will be seen, 
that it conveyed property, consisting principally of slaves, 
to trustees; the legal estate to be held by them upon di- 
vers trusts: first, for the use, benefit and behoof of the 
husband, until the solemnization of the intended marriage 
and after consummation of that event, to the use and behoof 
of the husband and wife, during the period of their natural 
lives, ("without any manner of waste, or impeachment of 
waste,") and with remainder over to the issue of the mar- 
riage. 

Secondly. In case there should be no issue of the mar- 
riage, then the estate to go absolutely to the survivor. There 
is also in the deed, a special stipulation, "that the property 
conveyed, is not to be liable for the payment of any debt, 
judgment, execution, account, demand or otherwise of the 
husband," and that stipulation is coupled with a proviso, 
that the husband and wife, "with the approbation and 
assent of the trustees, may at any time, by writing or wri- 
tings, under their respective hands, and attested by two 
or more creditable witnesses, revoke and make void, alter 



476 • SUPREME COURT. 

panderaon ts. Jones, et al. — Dissenting Opinion. 

and change all and every of, or any of the trusts, or estatei^ 
hereinbefore limited. 

It is also proper to remark, that there are three distinct 
classes of property mentioned in the bill, to which the com- 
plainants set up title. 

1st. The particular slaves named or referred to in the 
deed of settlement. 

2nd. The natural issue and increase of those particular 
slaves ; and 

3d. Such slaves as are therein alleged to have been pur- 
chased by the husband out of the profits and proceeds of the 
trust estate, together with the natural issue and increase of 
the same. 

With respect to the first class, it will be readily perceiv- 
ed from the general views which I have hereinbefore ex- 
pressed in regard to the main position assumed by the 
Court, as the ground of their judgment, that I do not rec- 
ognize any right in Harrison, the husband, to alienate any 
portion of the corpus of the estate. In arriving at this con- 
clusion, however, I am not at all influenced by that argu- 
ment of the counsel for the complainants, wherein he in- 
voked the analogy of the law relating to the real estate 
held in joint tenancy by husband and wife. In such case, 
the estate is even more than an ordinary joint-tenancy — 
it is an estate held by entireties, and the husband may not 
alienate even a moiety, or any portion thereof, without the 
concurrence of the wife. 2 Black. Com., 182. 

There may exist a joint tenancy in things personal 
and when so held, the estate is subject to all the rules gov- 
erning real property. (2 Black. Com. 399.) But this must 
be taken to be so, only as between strangers, for a joint 



ADJOUBNED T. AT TAIJLAHASSEE, 1855. 477 



Sanderson tb. Jones, et al. — Dissenting Opinion. 



tenancy in the legal estate, cannot exist between the hus- 
band and wife, and for this very simple reason, based upon 
a canon of the common law, that the husband jure mariti is 
entitled to all the personal estate of the wife, to which she 
has the legal title, and which may have come to his possession 
in his life time; and if he is entitled to that which comes 
to her in her individual right, a fortiori he is entitled to 
that which is conveyed to them jointly. It is laid down in 
Boll's Abridgment, 343, that "when the husband is jointly 
possessed of a leasehold interest, or other personal thing, 
he may dispose of it in his life time, without the consent or 
concurrence of his wife. 

And again, at page 349, that "if goods are given to 
the husband and wife, the wife shall not have them 
by survivorship, but the executor of the husband." Vide 
3. Bac. Abr., (Bird Wilson's Ed.,) 647. 

It will thus be perceived, that no argument can be based 
upon any analogy supposed to exist between the two kinds 
of property. I desire to place the rights of the wife upon 
safer and higher grounds, viz: that of an express trust, — 
Under the provisions of the settlement, the husband was 
entitled only to the joint use, with his wife, in the property 
conveyed, and that too to be enjoyed only during the term 
of his natural life. The legal estate was not in either of 
them, — it resided in the trustee. 

With respect to the second class of property specified in 
the bill, viz: the natural issue and increase of the females 
slaves, I can perceive no sound principle of law, upon which 
they can be made to take a direction diflPerent from that 
given to the first class. If we resort to adjudications upon 
this subject, it will be found that in the Southern States of 



478 SUPREME COURT. 

Sanderaon vs. Jones, et. al. — Dissenting Opinion. 

the confederacy, where negro slavery is a cherished domes- 
tic institution, there exists an unbroken current of decis- 
ions, which lias settled the principle that partus sequiier 
ventrem. It is the doctrine of humanity. 

But I have a surer guide to ray conclusion, in the inten- 
tion of the parties who executed that settlement. The ob- 
ject and design evidently was, while careful to secure to 
the wife a comfortable maintainance for herself and fami- 
ly during the term of her natural life, to make a compe- 
tent and substantial provision for the issue of the marriage. 
If I am correct in this interpretation of the intention of the 
parties to the deed, then it is very evident that the object 
contemplated, could be secured only by causing the issue 
of the female slaves to follow the condition of the moth- 
ers. 

If, as was insisted in argument, the trusts are to be re- 
stricted exclusively to the slaves mentioned in the deed, it 
is very evident that in view of the casualties of human 
life, and the certain and irresistable encroachments of age, 
the provision for maintenance and support would stand 
upon a very narrow and unstable basis, and the 
exception of the issue of the marriage as remain- 
der-men, would be doomed to certain disappointment. 

But we need not resort to implication, in order to ascer- 
tain the intention of the parties — the deed itself speaks a 
language which is not to be mitunderstood. In the convey- 
ance to the trustees, it expressly and in terms conveys 
"the issue and increase of the females." I presume that 
this particular language of the deed escaped the observa- 
tion of the very vigilent and astute counsel who argued 
the case for the appellant, or he would not have sought, as 



ADJOURNED T. AT TALLAHASSEE, 1855. 479 



Sanderson vs. Jones, et. al. — Dissenting Opinion. 



he did, to distinguish between the two classes of pro- 
perty. 

With respect to the third class, viz: that portion of the 
slaves including their natural increase, which is represen- 
ted in the bill, as having been purchased by Harrison, with 
the "profits and proceeds'' of the trust estate, I have felt 
greater difficulty in arriving at a satisfactory conclusion. 
It is undoubtedly correct as a general principle, that where 
trust money or the proceeds of a trust estate, is invested in 
the purchase of property, or in any other manner, the par- 
ticular investment, of the property so purchased, will be 
deemed in equity to enure to the benefit of the original 
trust. This however is but the enunciation of a general 
principle, and like all general principles, when it does not 
contravene the policy of the law, must yield to the clearly 
ascertained intention of the parties, whether that inten- 
tion be manifested by the express stipulations of the deed, 
or can be reasonably implied from the object and design of 
the settlement. To mv mind, whether we resort to the one 
course or the other as an index to the intention of the 
parties, it is very apparent that it was never the design of 
the settlement, to restrict or limit the power and control 
of the husband, with "respect to the proceeds and profits" 
of the trust property, any further than might be necessary 
to effect the primary object of the trust, viz: to secure to 
the wife a comfortable and adequate support and main- 
tenance for herself and family, during the term of her natu- 
ral life. So long as the corpus of the estate was kept in- 
tact, I think that the husband had a right to appropriate 
and dispose of the surplus of the proceeds and profits, as 
he might deem best, and according to his own will and 



480 SUPREME COURT. 



Sanderson vs. Jones, et al. — Dissenting Opinion. 



pleasure. And I am strengthened in this conclusion^ from 
the fact that there is no provision in the deed looking to 
any accumulation of the estate, other than that intimated 
in the stipulation, with respect to the "issue and increase 
of the female slaves." 

There is moreover to be found in the deed of settlement 
a very particular and unusual clause, which would seem to 
favor the view which I have taken of this branch of the 
case. I allude to the clause which expressly stipulates 
that the joint use of the estate is to be enjoyed by the hus- 
band and wife, during the term of their natural lives, "with- 
out any manner of waste or impeachment of waste, to be held, 
done, made or commit ted." This stipulation, in the connec- 
tion in which it is found, is manifestly inapplicable, and if 
subjected to a rigid construction, would become wholly 
nugatory. But being inserted in the deed, it was evidently 
intended to convey some meaning, and it is our duty, look- 
ing to the intention of the parties, to give it such an inter- 
pretation as may render it most consistent with the con- 
text. 

*' Waste and impeachment of waste'' are technical terms, 
and are found onlv in conveyances of real estate, — thev are 
entirely inapplicable to personalty, "Waste or vartum." "It 
(pays Rlackstonc) is a spoil or destruction of houses, gar- 
dens, trees or other corporeal heriditaments, to the disheri- 
son of him that has the remainder or revision in fee-sim- 
ple or fee-tail." (2 Black. Com. 281.) 

Impeachment of waste signifies a restraint from commit- 
ting waste upon lands or tenements, or a demand or com- 
pensation for waste done by a tenant, who has but a 
particular estate in the lands granted, and therefore no 



ADJOURNED T. AT TALLAHASSEE, 1855. 481 

Sanderson vs. Jones, et al. — Dissenting Opinion. 

right to commit waste. All tenants for life or any less es- 
tate are liable to l)e impeached for waste, unless they hold 
without impeachment of waste; in the latter case they may 
eoirmit waste without being questioned, or any demand 
for compensation for the waste done." 2 Coke, 82. 1 Bouv. 
L. D. 484. 

Proceeding to give an interpretation to this clause of the 
deed, so as to save it from being rendered wholly nugatory, 
and to make it consistent with the context, I am clearly 
of opinion that it is susceptible of but one meaning, viz; 
that the tenants of the particular estate should be permit- 
ted to enjoy the joint use of the same, "without account," 
either as between themselves or as between them and the 
remainder-men. If I am correct in this construction, then 
it results as a necessary consequence, that Harrison, the 
husband and one of the tenants of the particular estate, 
had the right to appropriate to himself such portion of the 
^^proceeds and profits" of the trust property as might re- 
main after providing out of it an adequate support for the 
wife and family. If he appropriated this surplus to the 
purchase of property for himself, as I think he might well 
have done, then he had an unquestionable right to alienate 
it, and the conveyance to Starratt, in trust for his daugh- 
ter, the late Mrs. Sanderson, o^ght to be sustained to that 
extent as good and valid. 

If the demurrer had been restricted to this portion of the 
bill, I should have concurred with the majority of the Court 
in sustaining it; but being general to the entire bill, I am 
constrained from the views which I entertain in regard to 
the whole case, to dissent from the judgment of the court 
upon the well recognized principle of equity practice, that 



482 SUPEEME COUET. 



Daggett vs. Willey. — Statement of Caae. 

"a demurrer bad in part is bad in whole, and must be 
overruled." 

I should have been gratified to have had the opportunity 
to give my views in regard to the very many interesting 
questions, so ably argued by counsel on either side, but the 
length of this opinion admonishes me of the propriety of 
now bringing it to a close. 

If I have exceeded the limits usually assigned to a dis- 
senting opinion, T claim an apology in the paramount im- 
portance of the question involved, and in the firm convic- 
tion (with all deference for the views of my respected 
associates) that the doctrines announced in the opinion of 
the Court are not only unsustained by authority, but are in 
direct conflict with the best interests of society, and take 
away the only shield which an affectionate and provident 
' parent is allowed to interpose for the protection of his con- 
fiding and often unfortunate daughter, and her innocent 
and helpless progeny. 



Doe on the Demise of Makia Daggett, Appellant, vs. 

Chas. Willey, Appellee. 

1. In a case of contested boundary, course and distance yield to natural ob- 
jects, and distance to be extended or shortened to conform to them. 



ADJOURNED T. AT TALLAHASSEE, 1855. 483 

Daggett vs. Wllley. — Statement of Case. 

2. Where parties having an interest In a common boundary, as owners of 
grants adjoining, agree to a dividing line, and especially where a town is 
laid ont by Commisslonerg predicated on such agreement, and the property 
is held thereunder for a great number of years, this is conclusive as against 
them and those holding under them, and parol testimony is good and ad- 
missible to prove such agreement. 

3. It is not proper for the court to charge the Jury that circumstantial evi- 
dence tending to show a probability that a survey covered the land In dis- 
pute, is sufficient to found their verdict 

4. Reputation and hearsay, of themselves, are not evidence ; yet, in connec- 
tion with other evidence, they may be entitled to respect in cases of boun- 
dary after great length of time, and when it may be impossible to prove 
the ezLstence of the primitive land marks. 

5. The court cannot assume the conclusiveness of the testimony of any wit- 
ness, and it Is error so to charge. 

6. The court will not regard an assignment of error not connected with or 
necessary to the merits of the case. 

7. Whilst the ruling of the court may be erroneous in some respects, the 
court will not reverse the Judgment if the verdict is sustained by the evi- 
dence. 

Appeal from the Circuit Court for Duval county. 

This is an action of ejectment for the recovery of a lot 
of ground in the city of Jacksonville, known on the map 
of said citv as lot No. 5. 

The plaintiff offered in evidence io sustain the issue on 
lier part, a deed executed hy L D. Hart, in December, 
1836, to William J. Mills, in Lrust for Maria Doggett, the 
lessor of the plaintiff, who was then a feme covert, but 
now a widow and feme sole, conveyed a "certain tract of 
land situated in Jacksonville, Duval county, Florida, and 
bounded as follows: on the south by St. Johns river, on 



SUPREME COTTHT. 



the north aaA nst by Hogan's Creek, and on the west bj 
iModi granted to the heire of Pumal Taylor, and now 
owned by I. D. Hart, which described ae above, wa§ for- 
mally granted by the SpaniBh Government to Juan Maes- 
tre. and by Hart purchased from John Bellamy, &c., incln- 
■iiny lifty acres," Ae, 

Tbe p'aintiff also offered in evidence the petition of 
John Master* to the Governor of Florida, dated 18th No- 
vwmfcwr. ISlij. representing tlie straightened circumstances 
of the petitioner, and praWng for a "grant of one ]iundred 
«cre« of Tsi.'aQt hammock land on the north side of the St. 
Johns river, opptwite the battery of St. Nicholas and 
S.'i:adi?d by Mr. Daniel Hogan's plantation in the neigh- 
Vrhivd I'f a creek." Attached to which petition is a 
cwr«« of the Governor dated 2d December, 1816, directing 
'.■HZ there be ''granted to the petitioner the one hundred 
acres of laud at the place mentioned, without injury to 
»3v :h:rvl E>arty, and a certified copy thereof as evidence 
S- :ssue*! to liini frvmi the Secretary's office." To which is 
iA- at'tyn'.U'd a note, as follows: "By a decree rendered 
a; '."■0 iustanie of the petitioner of the 2d of last month, 
v'orv »v:v jrnitited to him fifty acres of land at the south 
'Vi-;i of St. Johns Bar, disitant about one mile from Quesa- 
^'jfct BattiTv, which grant has been made to him in conse- 
— ot^>.v of !u* having proved that up to the present time he 
">*■. "vvatvvl but fifty acres out of the one hundred granted 

fH- ■oUmiiiT alsi' offered the survey and plat made in 
^•,itiKV lo the devrw aforesaid, which survey is as fol- 

■■ I. 1V» G(vrge Clark. Lieut, of Militia of St. Angus- 




ADJOURNED T. AT TALLAHASSEE, 1855. 486 

Daggett Tt. Willey. — Statement of Caae. 

tine of Florida and Surveyor General appointed by the 
Crovemment of the said place and pro\'inee, do certify that 
1 have measured and bounded for Don Juan Maesters fifty 
acres of land on the north side of St. Johns River^ at a 
place called Cowford, or ferry of the Kingfs road, being a 
part of one hundred acres granted to him by the Govern- 
ment on the 13th of December, one thousand eight hundred 
and sixteen, which survey agrees with the following plan 
and its original which is recorded in the book of surveys 
of land under my charge. Fernandina, 21st of February 
1817." 

On the plat of this grant, outside of the west boundary, 
are the words "Maria Taylor's land;" on the north is Ho- 
gan's creek, and on the south the St. Johns Eiver. The 
first line runs from the confluence of Hogan's Creek and 
St. Johns Biver, west, thirty chains, to the second line, 
which begins on the St. Johns River and runs north thirty- 
three and a half chains to a pine. 

Plaintiff also read in evidence the grant and survey of a 
tract of two hundred acres of land granted by the Span- 
ish Government, on the 13th day of September, 1816, to 
Maria Taylor, commencing on the north side of St. Johns 
River, at the mouth of McCoy's Creek, running thence 
north 40 chains to a pine, thence east fifty chains to a pine, 
thence south 40 chains to an oak on the St. Johns river. 
On the plat of the survey of the Maria Taylor grant, out- 
side of the east boundary, are the words "Juan Maesters' 
Land." 

Plaintiff then offered Thomas Suarez as a witness, who 
testified that he is acquainted with the Maria Taylor and 
John Masters' grants. Hogan's Crek adjoins the town to 



486 SUPREME COUBT. 

Da^rgett vs. Wllley. — Statement of Case. 

the east and M'Coy's Creek is the first Creek above and 
to the west. Was one of the chain carries when the sur- 
veys were made. The surveys were made by a Mr. Miller 
— not farther back than 1817 — wlio it was said acted as 
deputy under George 1. F. Clark. We started on the Tay- 
lor grant, commencing at the mouth of McCoy's Creek at 
a **gum tree;" has seen the tree since, but it is not now 
standing. There is an old Spanish line there now, but 
when we run it there was none. We run a line from the 
Creek out; thinks the first line was north. The next line went 
down towards Hogan's Creek, and the third line ran back 
to the river. We marked a corner, thinks it was an oak in 
the liammock — there were no pines there. The trees stood 
as close to the river in the hammock as we could get — ^has 
seen the oak since, but it has been a great many years 
ago. Can't state now where the south-east comer of the 
Taylor grant was, as the town now covers it, but it was 
above where the Master^s line came. These two lines did 
not come together. The corner of the Taylor tract was 
some distance above Market-street. The Taylor grant 
was run out first. On the same dav we conmienced at the 
mouth of Hogan's Creek and ran the Masters grant. We 
chained along the bluff up the river, can't say now many 
chains we run, but \then he got his complement he made 
a corner. Tt was not up to the Maria Taylor grant. There 
was no other line marked on the ground. In running the 
west line of the Taylor grant we made surveyors marks on 
the trees — a blaze and two chops. Has traced this line 
lately and found Spanish marks. There is another line, 
one made by the United States, a little this side; thinks 
this is the line on which there are some old marks. Thev 



ADJOURNED T. AT TALLAHASSEE, 1855. 487 

"^ — - - II B, 

Daggett vs. Wllley. — Statement of Case. 

are not far apart, about fifty yards. Witness has seen 
trees blazed on the first line going out. Knows the prem- 
ises, on the comer of Market and Bay streets, in dispute — 
does not think they are within the lines of the Taylor 
grant as surveyed by us — thinks they lie east of the Tay- 
lor grant. Witness does not know of his own knowledge 
that Miller had any authority from Clark, the Spanish Sur- 
veyor-General, nor was he present when Clark surveyed 
these grants . There are now three or four gum stumps 
at the mouth of McCoy's Creek. 

John M. Irwin, another witness for plaintiff, testifies that 
he is a surveyor, that he has recently run the Taylor grant. 
That he commenced at a gum stump, and run according to 
the first line of the plat, north forty chains on an old line, 
and made a corner, thence east fifty chains and made a 
comer in a marsh, thence south to the river and found 
plain marks on the west line — an old well marked line — found 
none on the north line. He commenced at a stump — no one 
pointed it out — he foimd it. They commenced at a stump 
northwest of the well defined line, two chains twenty-three 
links pointed out to them. After running with the com- 
pass and searching for an old line they abandoned that. 
There were some indications of a new line, but no old one. 
In running the well defined line they crossed two cypress 
ponds. The last pond very close to the termination of the 
forty chains. From a comer at the end of the forty chains 
they ran fifty chains to the east, thence south to the river, 
and came out on the river at the east boundary of Ocean 
street. Witness was on the groimd at the starting point 
with Mr. Suarez, and while he was taking observations, 
Suarez said "that must be the stump." There was no 



488 SUPREME COURT. 



Daggett vs. Willey. — Statement of Caae. 



other old Spanish line in thai vicinity, that witness could 
find. There was no marks on the noi'th line. 

The mouth of McCoy Creek le east of the stump, from 
which he started to run these lines. He did not measare 
the distance, but supposes it to be two hundred feet or a 
little better. The first stump from which he started is 
nearer the mouth of the creek than the other. The marb 
on the west line are upwards of thirty years old. 

A. Williams, another witness for plaintiff testified that 
he is a surveyor, and has been accustomed to survey grants. 
Spanish lines, well identified, are very rare. He ascer- 
tains the time a blaze has been made by the appearance 
of the wood grown over it. He has recently surveyed the 
Taylor Grant — he followed the lines as surveyed by Mr. 
Irwin. The first line runs upon an old line, well defined 
on the west line of the claim — they are very old marks. 
The west line runs due north, which is very unusual for 
Spanish lines . The old line started from a gum. It ex- 
tends north seventy-two chains being, witness supposes, 
the west boundary of Hogan's grant. He started from a 
gum stump, pointed out to him, not exceeding five chains 
from the St. Johns river — part of the blazes were grown 
over — should think them over twenty-five years old. He 
found no trees on the north line, and found no northeast 
corner tree — found no marks on the line running south. The 
majority of the marks on the west of the Taylor grant 
were a blaze and two chops. 

Oliver Wood, anotlier witness for plaintiff, testified that 
he is a practical surveyor, that he has run the lines of the 
Taylor grant. Commenced at a gum stump north side of 
McCoy's Creek. Thomas Suarez showed him the stump. 




ADJOURNED T. AT TALLAHASSEE, 1855. 489 

Daggett T8. Wllley. — Statement of Caae. 

About a year ago he ran the west line north forty chains. 
He found trees marked. They were old marks^ but there 
were some new ones. At about fortv-two chains there 
was a stake marked with a cress. At the side of the road 
near by was a small pine — neither could have been very 
old. He ran the next line east fifty chains — found no corner 
there. He ran the east line parallel with the first — it ter- 
minated about a half chain from the east line of Captain 
Ledwith^s water lot. Has surveyed some of the lots in 
town. The distance from Market-street to Ocean-street is 
about seven hundred feet. 

Francis J. Pons, another witness for plaintiff, testified 
that he was one of Mr. Irwin's chainmen — ^that they ran 
the first line north forty chains, the second one east fifty 
chains and the third one south about forty-eight chains. 
The lines were measured correctly. 

Thomas Henderson testified that he is acquainted with 
the locality at the mouth of McCoy Creek. The point 
bevond and above the mouth of the creek has made out 
further than it did fifteen years ago. 

George C. Acosta, another witness for plaintiff, testified 
that the point at the mouth of McCo/s Creek has filled out 
one hundred feet within the last five years. 

The plaintiff then read in evidence a deed from John 
Masters to John Brady, dated x^lst day of June, 1820, con- 
veying to said Brady the land granted to the former by 
the Spanish Government; also a deed from John Brady to 
John Bellamy, dated 27th January, 1823, for the same 
land; also a deed from John Bellamy to I. D. Hart, dated 
4th day of May, 1836, for the same land. 

The defendant to sustain the issue on his part read in 



490 SUPEEME COURT. 

Daggett Y8. Willey. — Statement of Case. 

^ ■ ■ I ■ I I ■ ■ —■■■■ » 1 I ■ ■ I — I ■■ .M^^^^^ — ^— ^^^^l^^^^^M^^ ^l^^M^ 

evidence a deed from I. D. Hart to Hammond Libby, dated 
2oth of July, 1855, conveying the west half of lot No. 5; 
also a deed from Hammond Libby to the defendant, dated 
2l8t May, 1836, conveying the same half of lot No. 5. 

The defendant also read in evidence the record of a deed 
from 1. D. Hart to the defendant for the other, or the east 
half of lot No. 5. 

Defendant then offered in evidence a deed from Lewis 
T. Hogans and Maria his wife (who signs as Mary Ho- 
gans) formerly Maria Taylor, and others the heirs of Pumal 
Taylor, to I. D. Hart dated 28 May, 1831, for part of the 
tract of land granted by the Spanish Government to the 
widow and heirs of Purnal Taylor. The introduction of 
this deed was objected to by plaintiff's counsel on the 
ground that Mary Taylor was not Maria Taylor, and that 
said deed was not acknowledged by the said Maria or Man 
Taylor according to law; whereupon Thomas Suarez was 
called bv defendant who testified that he subscribed said 
deed as a witness thereto, that Maria Taylor was his sis- 
ter and could not write — does not know who signed it for 
her. Witness was called to sign the deed and his sister 
acknowledged the deed. The deed was then admitted by 
the court to be read to the jury on the question of boundary. 
To which plaintiff excepted. Defendant also offered in evi- 
dence another deed from said Hogans, and Maria his wife, 
formerly Maria Taylor, and the heirs of Pumal Taylor to 
I. D. liart dated ISth of April, 1836, for other jmrt of 
the land granted by the Spanish Government to the widow 
and heirs of Purnal Taylor. To the introduction of which, 
plaintiff objected on the ground that it was not ac- 
knowledged by said Maria Hogans separately and apart 



ADJOURNED T. AT TALLAHASSEE, 1855. 491 

Daggett vs. Willey. — Statement of Case. 

from her husband. This objection being overruled said 
deed was admitted to be read on the question of boundary, 
to which plaintiff excepted. 

Defendant also offered in evidence a deed from said Ho- 
gans and wife to I. D. Hart dated July 10th 1831, convey- 
ing another part of the tract of land, so as aforesaid grant- 
ed by the Spanish Government. The introduction of 
whicli was objected to on the ground of irrelevancy, but 
the court overruled the objection and admitted the said 
deed to be read on the question of boundary. To whicli 
plaintiff excepted. 

F. J. Boss a witness for defendant testified that he was 
one of the Commissioners for laying out the town of Jack- 
sonville about the year 1824. John Bellamy and Benj. 
Chairs were the other Commissioners. John Brady who 
claimed to own one part of the town site, and Hart who 
claimed the other part, were both present. Brady purchased 
from John Masters and Hart from Hogans. So they 
stated at the time. Market street was assented to and 
agreed upon by both Brady and Hart as tlie boundary line 
between the lands owned by Hart on the west, and Brady 
on the east. A tree was standing on the bank of the river 
at the foot of market street which was claimed by Hogans 
from whom Hart bought, to be a comer tree as marking 
the point where the survey between the two tracts com- 
menced. The tree had marks upon it but witness cannot 
swear that it actually was the original comer tree. Brady 
at first deemed it to be such original tree and there was 
some considerable dispute between them (Hart and Brady,) 
on the day the town was laid out, but it was at last agreed 
between them that the tree above mentioned should be ta- 



492 SUPBEME COURT. 



Daggett V8. Wllley. — Statement of Case. 

ken as the starting point and the commissioners should 
lay off that street as the dividing line between them. 
Before the Commissioners would proceed to lay off the 
town, the question was asked by the witness of both Hart 
and Brady if they had agreed to the street marked as 
market street, but which witness thinks was not at that time 
called market street, as the boundary line, and they distinctly 
stated they were so agreed. He states further that he pur- 
chased lots one and four in square two, west of Market 
street, on the same day the town was laid off, which he sold 
back to Hart. He may have also purchased lot No. five 
also west of Market street and bounded on the east there- 
by. He also purchased a lot from Brady. At the time the 
town was laid off. Hart was living in the house on or very 
near to what is marked on the plat as lot No. five, in 
square two. That in about a year Brady sold his interest 
to John Bellamy, who was one of the Commissioners for 
laying off the town, and that neither Bellamy nor Brady 
ever made any claim to any thing west of Market street, 
but on the contrary acquiesced in Market street as the 
boundary line. Witness never heard of there being any 
other line claimed until about a year ago or perhaps a little 
longer. 

James McCormick, another witness for defendant, testifi- 
ed that he was present when the town of Jacksonville was 
laid out or a part of it. This was in 1822, he thinks. The com- 
missioners were Major Chaires, Fancis J. Eoss, John Bel- 
lamy, Stephens J. Eubanks, and perhaps others. Thinks 
John W. Koberts acted as clerk of the commissioners. — 
Thinks they had a surveyor — he was D. S. H. Miller. — 
Mr. Brady claimed on one side of Market street, and CoL 



ADJOURNED T. AT TALLAHASSEE, 1855. 493 

Daggett vs. Willey. — Statement of Case. 

Hart on the other. They were both present. They com- 
menced at the foot of Market-street. Hart and Brady 
each agreed to give one-half of the street. Miller said that 
was the corner. At the time the town was laid off, Col. 
Hart lived near what is now Mr. Frazer's office. Mr. 
Brady was living in the middle part of what is now Mr. 
Doggett's house, on the east side of Market street. 

Plaintiff's counsel objected to the admission of the testi- 
mony of Mr. McCormick on the grounds, first: that it was 
irrelevant to the question at issue, and calculated to mis- 
lead the jury; second: that it was an attempt to prove 
title to real estate by parol testimony; and third, it was 
an effort to vary by parol testimony the boundary of the 
grant from the description given in the deed. These ob- 
jections being overruled, the plaintiff excepted. 

Defendant offered in evidence sundry deeds executed by 
I. D. Hart to divers persons, bearing date previous to the 
date of the deed from Hart to Mills in trust for Mrs. Dog- 
gett, covering lots embraced within the disputed boundary. 
The introduction of which was objected to by plaintiff for 
irrelevancy, which being overruled, the plaintiff excepted. 

Plaintiff, by way of rebutting testimony, then offered in 
evidence a bond dated 23d December, 1840, from I. D. 
Hart to H. Ashlock, for titles to a piece of land on the 
western border of the Taylor grant, showing his ownership 
and occupancy of the same. To the introduction of which 
defendant objected, and the objection being sustained, plain- 
tiff excepted. 

The court instructed the jury as follows : 

"The present action of ejectment is brought for the re- 
covery of a certain piece of land, known and distinguished 



SUPREME con 



HmtRett vB. wilier.- 



kim as the starting point 
]ay till tlmt street a« tlio 
l!i'[«irc tlic C'diiimisfliinie!-:' 
linvii, the question was ii-'.. 
aud Brady if tliey hnd 
market street, but whit-h . 
called market street, as ■ 
Btnteil tiiey were so n;.' 
cliastMl lots one and ' 
street, on the same ' 
back to Hart. W- 
uUo west of Mar! 
by. He also |iii' 
town was laid ■ 
near to wlmi 
«juar(.> two, 
to John M-' 
layiiijr "IT ' 
ewr riLii'l'- 
Imi •■■■• ■ 



.11 Iv 



tho 



I 




■ wn a n'giilar dc-\ 
- ::: trust for Ikt. aii.l 
■ .:e* witiiin the bniiii- 
-:tE for hrr. 

-.-.ia the limits ciiibrat'ed 

. '.■^rfeot title, and entitle 

.-iiEdant has fhowii some 

■ .■■.nclusion of the oiurt 

, r;:i2'iiug either in the df- 

n-rr person, .\ plnintilT in 

: 4:7»^n!rth of Ilia own title. 

r :- fondant's. It is all iin- 

"-? carried away liy t!ip 

■- :r the parties, but take 

:i: and upon it, rc-iider a 

- i. ■■,-.: t>) voii is, whi.-iinr 

-'. "n the hinindarios uf ihi> 

• v.". .1. Mills, in tru^t (-t 

> -J. .ertain tract of bind 

■ ■■"-.:.■. Territory uf Florida. 

: -..;:'.■. i-'v St. Johns i-ivi-r, 

r'* Orxvk, and on the west 

;■ r-.-.rr.ai Taylor and now 

f:;.;l; i^seribed as above was 

iz.si' ■.--:^vrr.ment to .Tohn Mas- 

^it:r: :i -^ohn Bellamy, inelud- 

VntsUrr Aforesaid, and all of 



» T. AT TALLAHASSEE, 1855. 495 



,^. Wilh'j-.— statement of Case. 



i IIP lie or Icjis, except such parts as was sold 

• rls (•! the same as were legally deeded away 

\'< tiic tenor of a deed made by Jolin Brady to 

•I . li«'i!:iiii\, and according to the tenor of a deed made 
»t\ .'oim 1). to me for the above bargained premises, &c., in 
lull (cnlirmation of said deeds.'^ 

"The ])laintiir sliows the grant to said Masters and a sur- 
vey thereof and tlie grant to Maria Taylor and a plat, 
wliich she claims to be a survey thereof, for the purpose of 
defining thereby the boundaries of said grants, claiming 
that the same establislied that the "Masters grant,'' bounded 
on the Taylor Grant, "and that the premises in dispute are 
embraced within the calls of the survey of the Masters 
grant." The return of a survey made into the Surveyor- 
General's office or any other office or place to which it 
should be returned, and a lapse of twenty-one years after- 
wards, without any attempt being made during that inte- 
rim to contravene or take exception to it, is conclusive 
evidence that it was regularly made. 

"If from the evidence vou find these survevs were return- 
ed by said George I. F. Clark into the Surveyor-General's 
office or archives of the Spanish (jovernment in Florida, 
where they are found, and twenty-one years have elapsed 
without any attempt, during that time, to contravene or 
take exception to them, the law presumes they were regu- 
larly made. 

"After so great a length of time has run around since the 
survey of these grants, circumstantial evidence tending to 
show the probability that the survey of either grant cover- 
ed the land in dispute, is sufficient. 

Although some portion of the evidence respecting tl'.e 



u 



496 STJPKEME COtJBT. 



Dagxett rn. Wllley. — Statement ot'Ctwt. 

t 

> ■ ■ I • i . I 

boundaries of these two grants is mere reputation or hear- 
say, yet such evidence taken in connection with other evi- 
dence, is entitled to respect in cases of boundary, where the 
lapse of time is so great as to render it difficult if not im- 
possible to prove the boundaries by the existence of the 
primitive landmarks or other evidence than that of hear- 
say. 

"The highest regard is had to natural boundaries, and to 
lines actually run, and corners actually marked at the time 
of the survey or grant, and if the lines and comers of an 
adjoining tract are called for, the lines will be extended to 
them if they are sufficiently established, without regard to 
the quantity included, whether the same be more or less 
than the quantity expressed. The defendant has shown a 
regular deed from Isaiah D. Hart to him of said east half 
of said lot No. 5, dated subsequent to the deed under which 
the plaintiff claims, which he claims is not included in the 
said deed under which said plaintiff claims. In other 
words, that the same was not conveyed by said Hart to 
said Mills, in trust for said plaintiff. 

"This as we have before stated, presents the great ques- 
tion, whether the land in dispute was included in the 
boundaries of the said conveyance from said Hart to said 
Mills, in trust for said plaintiff. Parol declarations and 
confessions of persons who, at tlie time, are owners or 
claimants in posession of land, as to the true boundary line 
between them, and assented to by them, are admissible 
evidence in suits between those who claim under them, or 
either of them, under subsequent title. Therefore, if you 
find from the evidence that said Brady and said Hart, while 
they or either of them were owners or claimants in pos- 



ADJOURNED T. AT TALLAHASSEE, 1855. 497 

Daggett Tt. Willey. — Statement of Case. 

« I • • I ■ .1 I . ■ 

session of the lands in dispute, made parol declarations and 
Confessions as to the true boundary line, then such declara- 
tions and confessions are admissible as evidence in this 
caude against such owner or claimant in possession, and 
entitled to be considered by you as conclusive. 

"If, however, you find from the evidence that said decla- 
rations and confessions were obtained by fraud or conceal- 
ment, and they were not made with a true and full knowl- 
edge of the facts, then they are not entitled to such 
credit. 

"You are the sole judges of the facts, and it is not only 
your right but your duty to find according to your views 
of the proofs. 

"This action is to recover possession of the premises in 
dispute, and not to recover damages, but form requires you 
should find some nominal sum. Therefore, if you find for 
the plaintiff, you will say the defendant is guilty in manner 
and form as the plaintiff against him has complained, and 
you do assess the plaintiff damages by occasion thereof. 

"If you find for the defendant, then you will say, the de- 
fendant is not guilty of the trespass and ejectment in the 
declaration alleged.^' 

To all which charging plaintiffs counsel, then and there 
excepted, and assign the same as cause of error. 

The plaintiff^s counsel then asked the court to give the 
following charges to the jury, to-wit: 

*That if the admissions and confessions of the parties 
were made with ignorance of their rights under the law, 
then such admissions or confessions will not be binding 
upon the party making them or upon persons claiming 

33 



498 SUPEEME COURT. 



Daggett vs. Willey. — Statement of Case. 

under him or them. Which was given accordingly. 

The defendant's counsel then asked the court to charge 
the jury as follows : 

"1. That the plaintiff's claim in this case depends on the 
plat of survey of the lands made by Clark, the Surveyor- 
General — so far ias the boundary is concerned. 

" II. That the survey of Miller, made in 1817, as testi- 
fied by Suarez and the lines marked by him, are not coa- 
clusive or binding upon either the plaintiff or defen- 
dant." 

"III. That the royal title to Maria Taylor of September 
18th, 1816, vested in her an absolute title to two hundred 
acres of land fronting on the river and between M'Cojs' 
Creek and the point opposite St. Nicholas, even before the 
survey made by Clark in 1817." 

IV. That the deed of Hart to Mills in trust for Mrs. Dog- 
gett, of the Masters grant, referring as it does to the deeds 
from Masters to Brady, and from Brady to Bellamy, and 
Bellamy to Hart, conveys only the lands, which were con- 
veyed by these successive deeds and that therefore any- 
thing which would defeat the title of Brady, (such as thirty 
years acquiescence in a line,) is a good defence in an ac- 
tion by Mrs. Doggett. 

V. That when a deed is made of a tract of land, which 
is described by its name and not by natural land marks, 
it is competent for a jury to enquire what lands were in- 
tended by the name used, and that if they are satisfied from 
the evidence, that both the grantor and grantee understood 
a particular tract, the grantee takes that tract and no more. 

VI. That when the boundary line between two conti- 
guous estate has become doubtful, and the owner of one 



J 



ADJOUBNBD T. AT TALLAHASSEE, 1855. 499 

Daggvtt Ti. Willej. — Statement of Case. 

of said estates afterwards acquires the title to the other, 
but resells the same by name and without defining 
the true boundary, both granter and grantee are estopped 
to enquire what was the original boundary, but must abide 
by the line claimed by the grantor prior to his acquisition 
and during the time he held both titles. 

VII. That a disputed question of boundary, is forever, 
put at rest by the vesting of both estates in the same per- 
son, and that all persons claiming under him, are absolute- 
ly estopped from asserting the boundaries to be other 
than he had uniformly declared it to be. 

VIII. That the owner of two contiguous estates, has an 
absolute right to alter and change the dividing line be- 
tween them, and if he afterwards sells either of them by 
name and not by mets and bounds, his grantee (if cogni- 
zant of the alteration,) takes the estate with the new 
boundary, and is not remitted to the old. 

"IX. That when two estates are vested in the same 
owner and he sells one of them by name and not by metes 
and bounds it is not competent for his grantee to assert a 
claim to other lands than those generally known at the 
date of the conveyance by the name used therein, nor can 
he recover in ejectment by simply proving that before his 
immediate grantee acquired title, the lands in controversy 
were embraced in the estate by the name used in the con- 
veyance to him. 

"X. That although the quantity of land yields to course, 
distance and natural objects, yet the quantity may and 
ought to be considered as a description by the jury when 
the exact boundaries are difficult to ascertain." 

Which instructions so asked by defendant were granted 




500 SUPREME COURT. 

Daggett Ts. Wllley — Opinion of Court. 

by the court, and to all which plaintiff excepted. 

The jury having rendered a verdict for defendant , plain- 
tiff appealed. 

Felix Livingston and Philip Fraser for Appellant. 

Geo, W, Call, Jr,, for Appellee. 

BALTZELL, C. J., delivered the opinion of the court 

This is an action of ejectment instituted by plaintiff, Mrs. 
Doggett, to recover a lot of ground lying in the city of 
Jacksonville. The case was tried by a jury who found a 
verdict for defendant under instructions given by the Cir- 
cuit Court. These being excepted to at the trial, together 
with the ruling of the court in the exclusion und admission 
of testimony also excepted to, constitute the questions for 
the determination of this court. They have been argued 
with ability on both sides, showing a degree of preparation 
and industry in the management of the case not often sur- 
passed. 

We have given to it a very careful consideration, due 
alike to its importance not only in the individual case, 
which does not involve property of very large amount, but 
in numerous other cases depending upon its determination; 
and we now proceed to announce the result of our delib- 
erations. At the instance of defendant the court admitted 
deeds from Lewis Ilogan and wife (who was Maria Tay- 
lor, the grantee in a concession by the Spanish Govern- 
ment, more particularly alluded to hereafter,) and the heirs 
of Purnal Taylor to Isaiah D. Hart, which was objected to 
by plaintiff on the ground that Mrs. Hogans was not ex- 
amined, and did not acknowledge the deeds apart from her 
husband. That they were insufficient to convey her right 
is admitted. The question arises, may not the deeds be 



ADJOURNED T. AT TALLAHASSEE, 1855. 501 

Da«:gett V8. Wllley — Opinion of Court. 

available as evidence in the case notwithstanding this ob- 
jection, and we think they may. They are obviously good 
for the interest of the husband during his life time and for 
that of the heirs after death. The former was tenant 
by the courtesy and to that extent his interest was convey- 
ed. This at all events gave color of right to defendant 
claiming under Hart, and is sufficient for the purpose of 
this action. 

The fourth error assigned is to the receipt of certified 
copies of the proceedings of the Board of Land Commis- 
sioners in St. Augustine. If there were any such before 
the court on the trial of the case, they are not to be found 
in the copy of the record before us. The fifth and sixth 
errors relate to the admission of the deposition of Francis 
J. Ross and the evidence of John McCormick, and constitute 
the leading points in the case. To determine them proper- 
ly it is necessary to have a clear conception of the state 
of the case as presented by the evidence at this stage of 
it. 

The plaintiff adduced in evidence a deed from Isaiah D. 
Hart to Mills in trust for himself, dated December 18th 
1836, she being at the time a feme covert, though now a 
widow and a feme sole, conveying a tract of land know^n 
as the Masters grant. This latter was founded upon an 
application to the Governor of Florida, dated 18th Novem- 
ber, 1816, representing the straightened circumstances of 
the petitioner, and praying for a grant of one hundred acres 
of land of vacant hammock on the north side of St. Johns 
river, opposite the battery of St. Nicholas, and bounded 
by Mr. Daniel Hogan's plantation in the neighborhood of a 
creek. 



502 SUPREME COUBT. 



Da^ett vs. Willey — Opinion of Court. 

A note attached to the order of the Governor acceding 
to the petition, is to this effect: "By a decree rendered at 
the instance of the petitioner of the 2d of last month, there 
was granted to him fifty acres of land at the south point 
of St. Johns bar, distant about one mile from Quesad^js 
battery, which grant has been made to him in consequence 
of his having proved that up to the present time he had 
located but fifty acres of the hundred granted him." 

The survey made in obedience to the decree is in these 
terms : 

" I, Don George Clark, lieut. of the militia of St. Augus- 
tine, of Florida, and Surveyor-General, appointed by the 
Government of the said place and province, do certify that 
I have measured and bounded for Don Juan Masters fifty 
acres of land on the north side of the St. Johns river, at a 
place called Cowford, or Ferry of the King's road, being a 
part of one hundred acres granted to him by the Govern- 
ment on the 13th December, 1816, which survey agrees 
with the following plan and its original, which is recorded 
in the book of surveys of land under my charge." Fer- 
nandina, 21st February, 1817. Signed George I. F. Clark. 
[The plat of survey describes the first line as running from 
the confluence of Hogan's creek and St. Johns river west 
thirty chains to the second line, which beginning on the 
St. Johns river at an oak, runs north 33 1-3 chains to a 
pine. Outside of the second line or west boundary of this 
grant are the words "Maria Taylor's land."] 

Plaintiff claims that her western line connected with 
a grant made to another party, by virtue of a clause 
in the deed made to her by Hart, in these words: "All 
the right and interest of said Hart to a tract of land 



ADJOURNED T. AT TALLAHASSEE, 1855. 503 



Daggett vs. Wllley — Opinion of Court. 

bounded on the south by St. Johns river, on the north 
and east by Hogan's creek, and on the west by the 
lands granted to the heirs of Purnal Taylor, which de- 
scribed as above was formerly granted by the Spanish 
Government to Juan Maestre, and by Hart purchased 
by John Bellamy, &c., including fifty acres, &c." — 
The plaintiff adduced and read in evidence to the jury 
a grant to Maria Taylor, the widow of Purnal Tay- 
lor for 200 acres "commencing on the north side of St. 
Johns river, at the mouth of McCoy's creek, running thence 
40 chains north to a pine, thence 50 chains east to a pine, 
thence 40 chains south to an oak on the St. Johns river." 

She then introduced evidence of surveyors and others to 
show that the beginning of this latter tract on its western 
side was at a stump near McCo}''s creek, and that blazes 
and chops were found on a line running north from it. No 
comer was found here, and the line was made to termi- 
nate agreeably to the distance ; the remainder of the line was 
run agreeably to course and distance, no corner nor blazes 
or chops having been found on the last and eastern line. — 
Surveyed in this manner, this grant on its eastern side next 
to the Masters grant, terminated some two or three squares 
or blocks west of the lot in contest which lies on and di- 
rectly west of Market street. 

The position of the plaintiff obviously then is that the 
eastern line of the Taylor grant terminates at a point west 
of Market street, thereby throwing the lot in contest within 
the Maestre grant owned by her, and this she hopes to do 
by establishing a line as we have described, claimed as the 
true line by its chops and blazes on the west, and the re- 
mainder according to course and distance. Under such a 



504 SUPREME COUBT. 



DasKett Ts. WiUey — Opinion of Court. 

state of the case it is very clear that defendant had the 
right to adduce evidence showing that this line did not 
commence or terminate as contended for, that on the con- 
trary the actual survey terminated at a comer as its boun- 
dary and embraced Market street and of course the lot 
in question. 

This he proposes to do by the deposition of Francis J. 
Eoss and the testimony of John McCormick. Boss proves 
"that he was a commissioner for laying out the town of 
Jacksonville about the year 1824, that Brady claiming a 
part of the town site, and Hart another part, were present — 
that there was a tree standing on the bank of the river ai 
the foot of Market street, which was claimed by Hogans 
from whom Hart had bought, to be a comer tree — the tree 
had marks upon it, but witness cannot swear that it actual- 
ly was the corner tree. Brady first deemed it to be such 
original tree and there was considerable dispute between 
them.'' 

McCormick says, "he was present when the town of Jack- 
sonville was laid out or a part of it, this was in 1822 — he 
thinks the Commissioners were Major Chaires, Francis J. 
Eoss, John Bellamy, Stephen J. Eubanks and perhaps 
others — thinks Jolm W. Eoberts acted as clerk of the 
commissioners — tliinks they had a surveyor, he was D. S. H. 
Miller — ^he said the corner was at the foot of Market 
street." 

Here then we have on the eastern line a tree with marks 
upon it claimed by Hogan the former ovmer of the Maria 
Taylor grant to be a comer tree, insisted upon by the then 
owner Hart and in a degree admitted by Btady the owner 
of the Maestre grant — a tree existing in 1823 or 1824, when 



ADJOURNED T. AT TALLAHASSEE, 1855. 506 

Da«:gett vs. Willey — Opinion of Court. 

the town was laid out by the commissioners, only five or 
seven years after the survey. In addition to this we have 
the fact that D. S. H. Miller a surveyor in the employ of the 
commissioners said "that was the comer'' — the same person 
(if we are not mistaken though the proof is not entirely 
distinct) who made the original survey and whose declara- 
tion under the circumstances would be entitled to 
weight. 

Now, that this is material it is sufficient to state that the 
establishment of a corner tree at Market street fixes the 
eastern line of the Maria Taylor grant so as to embrace 
the lot in contest within its limits, and excludes it from the 
Maestre grant. Taking it that plaintiff has succeeded in 
fixing the western line of the same grant by a corner tree 
and blazes and chops, this testimony if believed by the jury 
may be regarded as settling the eastern line at the foot of 
Market street and upon grounds supported by undeniable 
principles long since established in cases of disputed boun- 
dary. 

"It is a general principle that the course and distance 
must yield to natural objects called for in the patent. All 
lands are supposed to be actually surveyed, and the inten- 
tion of the grant is to convey the land according to that 
actual survey ; consequently if marked trees and marked 
corners be found conformably to the calls of the patent, or 
mountains, or any other natural objects, distances must be 
lengthened or shortened and courses carried so as to con- 
form to those objects. The reason of the rule is, that it is 
the intention of the grant to convey the land actually sur- 
veyed, and mistakes in course or distance are more proba- 



506 SUPEEME COURT. 



Daggett V8. WlUey — Opinion of Court. 

ble and frequent than in marked trees, mountains, riveirB, or 
the natural objects capable of being clearly distinguished 
and accurately described." Mclver's Lessee vs. Walker, 
9 Cranch, 173. 3 Cond. S. C. R., 338. 6 Wh. 58. 2 Hil- 
lard. Real Prop., 254. 

Nor is this all that Ross and McCormick prove. Rofls 
says : " There was considerable dispute between them, 
(Hart and Brady) but it was at last agreed between them 
that the tree above mentioned should be taken as the start- 
ing point, and the Commissioners should lay off that street 
(Market-street) as the dividing line between them. Before 
the Commissioners would proceed to lay oflE the town the 
question was asked by the witnesses of both Hart and Brady, 
if they agreed to the street marked as Market-street, but 
which witness thinks was not at that time called Market- 
street as the boundary line, and they distinctly stated they 
were so agreed — that they laid oft the town and the streets 
and squares as marked by the Commissioners — ^lie bought 
lots one and four in square two on the same day the town 
was laid off, (also directly west of Market-street) and sold 
them back to Hart. At this time Hart was living at a 
house on or very near to what is marked on the plat as lot 
No. 5 in square two, also directly west of Market-street. 
He further says that in about a year Brady sold his inter- 
est to John Bellamy — that neither Brady nor Bellamy made 
any claim to anything west of Market-street, but on the 
contrary acquiesced in it as the boundary line, and witness 
never heard of there being any other line claimed until 
about a year or two ago, or perhaps a little longer, and 
witness bought lots of Brady at same time." 

McCormick says: "Mr. Brady claimed on one side of 



ADJOURNED T. AT TALLAHASSEE, 1856. 507 

- - I I ----- ■ - — •— - I ~- 

Da«:gett vs. WlUey — Opinion of Court, 

» » ■■ ■ ■ I « ■ ■ ■■■■ ■ I ■ ■ I ■ ■ ■ a^ I ^ ■■ ^^1^^ 

Market-street and Col, Hart the other — tbey were both 
present — they commenced at the foot of Market-street. — 
Hart and Brady each agreed to give one-half of the street. 
At the time the town was laid off Col. Hart lived near 
what is now Mr. Frazer's office — Brady in the middle part 
of what is now Mr. Doggett's house on the east side of 
Market-street. 

We have then a dispute between the o^^Tiers as early as 
1822 or 1824 — an agreement to lay out a town on their 
Joint lands (and the town is laid out with one block on the 
lands of Brady east of Market-street and two of the west 
on the lands of Hart) — an agreement between them that 
Market-street shall be the boundary, and each should give 
half the land for the street; in addition to this, possession 
by Hart as early as 1822 or 1824 and sales and purchases 
of lots under this agreement, acquiescence in by the owners 
of the Masters grant, and by everybody to the time of the 
institution of the present suit, a period of upwards of thir- 
ty years. 

That this admission — agreement as to the comer tree 
and boundary — connected witli the action of the parties and 
others in laying off a town, and buying and selling lots, in- 
dependent of the acquiescence for thirty years, with the 
adverse possession of Hogans and Hart and those claiming 
under them for nearly forty years, were proper evidence 
for the jury, we cannot hesitate for a moment in de- 
claring. 

" There are other declarations which are admitted as 
original evidence, being distinguished from hearsay by 
their connection with the principal fact under investiga- 
tion. The affairs of men consist of a complication of cir- 



508 SUPREME COURT. 



Daggett Y8. Willey — Opinion of Court. 

cumstances so intimately interwoven, as to be hardly sep- 
arate from each other. Each owes its truth to some 
preceding circumstance, and each has its inseparable at- 
tributes and its kindred facts, materially affecting its 
character, and essential to be known in order to a right 
understanding of its nature. These surrounding circum- 
stances, termed the res gestae, may always be shown to 
the jury along with the principal facts, &c.„ 1 Greenleaf, 
5 lOS-n. 

^^There has been a difference of opinion in regard to the 
declarations of persons in possession of land, but it is now 
well settled that those in disparagement of the title of the 
declarant are admissible as original evidence, &c. But 
no reason is perceived why every declaration accompanying 
the act of possession, whether in disparagement of the de- 
clarant or otherwise, if made in good faith, should not be 
received as part of the res gestae." Ibid 121. 

"The declarations of Smith (who had been in posses- 
sion of the premises and from whom defendant derived 
title) while in possession, as to his title, were admissible for 
defendant; they would have been good against him, and 
are competent against all who claim under him.'* 4 John 
229 ; 1 Ibid 343. 

"It is not to be controverted that parties whose rights to 
real property may be perfected, and the boundaries of 
which may be susceptible of certain and precise ascertain- 
ment, may by their acts conclude themselves by establish- 
ing other and different boundaries." 4 John. 140; 2 Caine, 
146; 10 Jolm, 377. 

"Acquiej?cence in an erroneous location for eighteen years 
is conclusive upon a party making or acquiescing in such 



ADJOURNED T. AT TALLAHASSEE, 1856. 609 

Daggett ▼■. WiUey — Opinion of Court 
' — - 

location." 19 Pick. 445 ; 6 Wen., 467 ; Hilliard Real Prop- 
erty, 229. ^ 

^'Admissions which have been acted upon by others are 
conclusive against the party making them, in all cases be- 
tween him and the person whose conduct he has thus in- 
fluenced." 1 Greenleaf, 8207. 

*'The admissions of one person are also evidences against 
another, in respect of privity between them; the term priv- 
ity means natural or successive relationship to the same 
right of property, &c." Ibid, 189. 

"In other cases where the party by his admissions has 
qualified his own right, and another claims to succeed him, 
he succeeds only to the right as thus qualified when his 
title commenced, &c." Ibid. 

"On the same principle other contemporaneous declara- 
tions of occupancy have been admitted as evidence of the 
nature and extent of their title against those claiming in 
privity of estate." Ibid, 5189. 

'*Long continued occupation under a grant may control 
courses and distances where no monuments are referred 
to or when those referred to are gone." 2 Hillard R. P., 
347 ; 9 Pick., 520 ; 5 Green., 489. 

The admission of this testimony is by no means, we 
think, obnoxious to the objection of proving title to real 
estate by parol, or varying the boundary of the Maestre's 
grant from the description given in the deed of trust to 
Mills. It conduces to establish the eastern line of the 
Taylor grant differently to where the plaintiff would locate 
it. Supposing the eastern line unsettled and the boundary 
in dispute, it settles that it was competent for the parties 
to terminate the contest and adjust and settle it. 



510 SUPREME COURT. 



Daggett vs. Willey — Opinion of Court. 

For the reason just stated, we do not think the court 
erred in admitting in evidence to the jury the deeds enu- 
merated in the hill of exceptions from Isaiah D. Hart to 
various persons, hearing date previous to the trust deed 
from Hart to Mills. These were a fair consequence of the 
agreement with Brady establishing the eastern boundair 
line. They seem to have been recorded, and may properly 
be regarded as part of the res gestae. 

We do not perceive the force of the application for the 
permission to read the bond of Ashlock to the jury; there 
is nothing on the face of it, as we understand it, to show 
" acts of ownership by Hart over the extreme west end of 
the Maria Taylor grant as claimed by him." The boun- 
dary to the south by M'Coy's creek is the only expression 
in the bond showing any connection with the grant alluded 
to. It was therefore we think properly excluded. 

Nor do we think there was just exception to the charge 
as to the surveys returned by (Jeo. I. F. Clark. Thev had 
been read in evidence to the jury by plaintiff herself, with- 
out objection of defendant, so tliat their authenticity was 
not a subject of question, but would seem to have been 
admitted by both sides. There was no attempt to im- 
peach tlieir verity, and no instruction was needed in their 
support. 

We do not think the instruction that "after so great a 
length of time circumstantial evidence tending to show the 
probability that the surveys of either grant covered the 
land in dispute is sufficient,'' can be maintained, and very 
probably goes beyond what the learned Judge himself 
would think appropriate, on reflection. 

There is no error in the ruling that although some por- 



ADJOUBNED T. AT TALLAHASSEE, 1855. 611 

Dacgett TS. Willey — Opinion of Court 

ion of the evidence respecting the boundaries of these 
grants is mere reputation or hearsay, yet such evidence, 
aken in connection with other evidence, is entitled to re- 
pect in cases of boundary when the lapse of time is so 
p^eat as to render it diflBcult, if not impossible, to prove the 
K)undary by the existence of the primitive land marks or 
►ther evidence than that of hearsay. 

Whilst the ruling as to the effect of the parol declara- 
ions and confessions of Brady and Hart are not stated so 
:learly and fully, and in connection with other acts as to 
he boundary line, as we might approve, yet it will be seen 
rom what we have already stated, that the instruction ex- 
presses substantially the sentiments and opinions of this 
ourt as to this testimony. We do not understand the 
ourt in the instruction as to plaintiff's claim depending 
m the plat or survey of the lands made by Clark, as re- 
ecting the plat and lines run and marked ; if considered in 
his latter point of view it would be evidently erroneous. 
?he court had alreadv instructed as to natural boundaries 
nd lines already run, as well as to the effect of the ad- 
tiissions of the parties, &c. 

Nor do we think there was error in the charge that the 
urvey of Miller, of 1817, as testified by Suarez, and the 
ines marked by him, are not conclusive or binding upon 
ither plaintiff or defendant. To assume the conclusive- 
less of this testimony would be to take from the jury the 
iecision of the credibility and siifficiency of the testimony 
►f Suarez. 

Whether the royal title to the Maria Taylor grant vested 
m absolute title before the survey, was a rjuestion not con- 
lected with the merits and as far as we perceive, of no 



612 SUPREME COURT. 



DtLggett vs. Wllley — Opinion of Court. 

- — - — "^ ■ 

practical value in the case. The grant was admitted to 
be good with the survey, both parties claiming under it, 
and no question raised by either as to its validity. Where 
then the propriety of raising the abstract question, that at 
some point of time and before the survey, it was void for 
uncertainty. 

The 16th, 17th and 18th errors object to the ruling of 
the court as to tlie effect of the deed of Hart to Mills for 
plaintiff; contending that plaintiff was entitled by that 
deed to connect her western boundary with the east- 
ern line of the Taylor tract, that this description is 
by metes and bounds, and that Hart, and all persons 
claiming under him are estopped from setting up any other 
claim than the one recited in the deed. 

It will be seen at once that the establishment of the 
eastern line of the Maria Taylor tract at Market-street 
relieves the case from all objection predicated upon this 
view. 

But again, we are of opinion, after due reflection, that this 
deed must be considered in connection with and in refer- 
ence to the facts and circumstances preceding it; we allude 
to those deposed to by Ross and McOormick which we 
give weight to, as tlie verdict has been in favor of defen- 
dant, and to the acquiescence of the parties to the time of the 
sale to Mrs. Doggett. This will give to the Maestre tract 
some thirt\; acres beyond the amount of fifty acres granted 
by the Spanish Government, preserve the rights of parties 
existing now for near forty years undisturbed, and without 
violating any principle of law or equity. Were this not a 
satisfactory conclusion to- our minds, we should most prob- 
ably be constrained to hold that the call in the deed to unite 



ADJOURNED T. AT TALLAHASSEE, 1855. 613 

DajTgett VB. Willey — Opinion of Court. 

the two tracts was a mis-description inconsistent with the 
leading and main and principal object of the deed, which was 
to convey the Maestie grant derived from the Spanish Gov- 
ernment and from him to Brady, Bellamy and Hart to plain- 
tiff. And there is much reason and foundation for such 
opinion. It is very obvious that these two grants d? not 
unite by any call in common; they were not surveyed so 
as to unite, and their very appearance on the plat 
repudiates such connection. The call* for course and dis- 
tance of the Maestre grant gives the full compliment of 
fifty acres. To unite it with the Taylor grant to the full 
extent contended for, would probably give eighty acres. 
Nor is it pretended that there are natural calls to enlarge 
it, either that the oak on the river or the pine on Hogan's 
creek, the western line, were or ever were claimed by anybody 
to be the comer tree of or on the eastern line of the Tay- 
lor tract. True, we perceive on the plat of the surveys, 
outside of the boundaries, the words, "Juan Maestre lands" 
on the Taylor plat, "Dona Maria Taylor's lands" on the 
Maestre plat. It would be strange indeed that these should 
be construed as extending the boundary of either, but sup- 
pose they do, is the extension to be on the part of the 
Maestre grant and not on the other? Had Hart in his 
deed conveyed the lands in the Maestre grant, and any 
other intermediate land between that and the Maria Tay- 
lor grant as surveyed by course and distance, there would 
be greater room for the position. Admitting that there 
was doubt even upon the Ross and McCormick testimony, 
as to the corner tree and eastern line of the Taylor grant, 
it was competent for the owners to adjust it and to settle 
and fix the lines, and to treat with persons in buying and 

34 



514 SUPREME COURT. 



Daggett V8. Wllley — Opinion of Court. 



selling in reference to such line as established, especially 
in a case of such notoriety as the present. 

In the construction of a grant the court will take into 
view the attendant circumstances, the situation of the par- 
ties, the state of the country and the thing granted. 2 
Hilliard Real Prop. 328 ; 3 Mass., 352 ; 4 Ibid., 205 ; 10 Ibid., 
459. 

We then do not think these objections tenable, though 
not altogether concurring in the propriety of the instruc- 
tions themselves. We do not agree to the instruction that 
in a case of a sale by the owner of one of two contiguous 
estates, without defining tlie true boundary, the grantee is 
estopped to enquire into the original boundary, but must 
abide by the line claimed by the grantor prior to liis acqui- 
sition. 

Nor do we assent to the instruction that a disputed ques- 
tion of boundary is forever put at rest by the vesting of 
both estates in the same person, and that all persons claim- 
ing under him are absolutely estopped from asserting the 
boundary to be other than he had uniformly declared it to 
be. This would be giving to declarations of a party a 
sanction and variety far bevond what has ever been claimed 
for them, and would substitute parol, fluctuating testimony 
of oral declarations, in place of writing. 

Nor do we assent to the ruling that if the owner of two 
contiguous estates alter the dividing line between them, 
and afterwards sell either of them by name, his grantee, 
is cognizant of the alteration, takes the estate with the new 
boundary. Nor to the next, in which the effect of selling 
by name is also stated. We regard them as inapplicable 



ADJOURNED T. AT TALLAHASSEE, 1855. 515 

Daggett T8. Willey — Opioloo of Court. 

to the cai?e, not justified by the testimony and calculated 
to mislead. 

If the instruction ihat alUiough quantity yields to course 
and distjince, and yet quantity may and ought to l)e consid- 
ered as a description when the exact boundaries are difficult 
to ascertain, l>o merely that this may be considered by th6 
jury amongst other things, we may not think erroneous, but 
it should be so qualified. 

Whilst then several of the instructions given to the jury have 
been found erroneous, yet the inquiry arises as to the find- 
ing and whether the judgment should be reversed on ac- 
count of them. The rule is that there must be some possi- 
bility of injury arising out of the matter excepted to. 2 
Hill N. Y., 210; Cowen & HilFs Notes to 1 Phil. Ev., 
787-8. 

An erroneous instruction to the jury cannot be assigned 
for error, if the verdict is sustained by the evidence. 6 
Blatch., 258. 

Where a judgment effects the proper results, no matter 
by what erroneous reasoning it may have been induced, it 
will not be reversed. 11 Ala., 149. 

Although instructions to the jury are not correct, yet if 
the verdict is right, judgment will not be reversed. 6 
B. Mon., 44. 

When the jury have given a correct verdict, it will not 
be set aside for erroneous instructions of the court, when 
instructions correctly given on those points could not have 
changed the result. Hill vs. Calvin, 4 How. Miss. R. 231. 

Tested by these rules we are of opinion that the verdict 
is fully sustained by the evidence — that it is right upon the 



616 SUPREME COUET. 

Bailey tb. Clark. — Opinion of Court. 

law and facts of the case, and cannot perceive that the 
erroneous instruction given can have induced to any in- 
jury in the case. 

The judgment will therefore be affirmed with costs. 



William J. Bailey, Appellant^ vs. Albert Clabk, Ap- 
pellee. 

1. Unless the testimony In the case is brought before the Sapreme Court by a 
bill of exception, it cannot regard it. 

2. The bill of exceptions is given by the statute of Westm., 13 Ed. I., Chap. 
31. 

3. It ought to be upon some point of law arising upon the fact. 

4. It is not to draw the whole matter into examination again ; it is only for a 
single point, and the truth of It can never be doubted after it is sealed. 

5. When there is no bill of exceptions to show on what ground the court de- 
cided, it will be presumed that it decided correctly. 

6. Every fair intendment is to be made In support of the Judgment below. 

7. The office of a bill of exceptions is to give the facts on which the court de- 
cided, and it should give all the facts bearing upon the decision. 



ADJOURNED T. AT TALLAHASSEE, 1855. 517 



Bailey vs. Clark. — Opinion of Coart. 



8. On oyermling a demarrer, if the demurrant resorts to ulterior pleadings on 
the same point, the demurrer is waived. 

9. The rule that allowed a party who offered no evidence the closing argument 
has been repeated. 

10. As has also the rule which allowed a default for want of a plea, Ac., to 
be entered in vacation. 

Appeal from judgment of the Circuit Court, for Her- 
nando county. 

The facts as disclosed hy the record are fully set forth 
in the opinion of the court. 

c7. T. Magbee for appellant. 

D. Provence for appellee. 

DOUGLAS, J., delivered the opinion of the Court: 

This is an action of trespass instituted in Hernando 
county. The declaration charges the defendant with cut- 
ting certain timber from the plaintiff's lands there situate. 
The defendant put in the general issue and several special 
pleas, upon each of which an issue of fact was joined, 
and the case was submitted to a jury, who found for the 
defendant, and a judgment was entered accordingly, from 
which the plaintiff appealed to this court. The questions 
arising upon the errors assigned were argued with great 
ability at the late session of this Court, held at Tampa. — 
They were presented, however, as though all the testimony 
in the case was before the court, but it turns out on an in- 
spection of the record that the following is the only bill of 
exceptions which it contains, viz: "This cause coming on 
for trial, the plaintiff's demurrer to the amended third plea 
of the defendant was argued, and it being considered by 
the court that the defence set up in that plea was not a 



518 SUPREME COURT. 



Balle7 vs. Clark. — Opinion of Court. 

contract or sale, transfer or mortgage of real property, or 
any interest therein, it was ordered by the court that the 
said demurrer be overruled, to which ruling the plaintiff by 
his counsel excepts." 

"Upon the further hearing of the cause, when the plain- 
tiff had rested from the examination of his witnesses, de- 
fendant by his counsel declined introducing any testimony, 
and proposed to go to the jury, claiming the concluding 
argument in consequence thereof. The argument of 
counsel was then commenced for plaintiff. In reply, defen- 
dant, by his counsel, contended before the court that the 
plaintiff's replication to defendant's amended third plea, 
was a complete and binding admission by the plaintiff of 
the existence of the instrument of writing pleaded in said 
amended third plea, which relieved the defendant from the 
necessity of othenvise proving the execution of such in- 
strument. The court sustained the defendant's counsel in 
this position, to which ruling plaintiff, by his counsel, ex- 
cepts and prays that these exceptions may be signed and 
sealed by the court, and put on record in said cause; "which 
it appears was accordingly done. 

The instrument set out in the said third amended plea is 
in the words and figures following to wit: "Received of 
A. Clark one hundred dollars, being in full pajTiient for the 
cedar timber upon my land in the Annutliga Hammock, it 
being the S. E. quarter of section 20, T. 21 S. R. 19 E. and I., 
hereby give him full permission to cut the same and haul 
it off said land, and to make roads and use other necessary 
means for getting off said timber, either standing or fallen 
and to have full claim to the land until he gets it off. — 



ADJOURNED T. AT TALIAHASSEE, 1855. 519 



Bailey ts. Clark. — Opinion of Coart. 



\ 



Given under my hand and seal at Hernando county, Flor- 
ida, December let, 1852/' 

" LEWIS JENKINS, [seal."! 

In presence of 

E. CIJVRK, 

E. B. McDOWEU.. 

The plaintiff claims the land described in that instru- 
ment under a deed from the same Lewis Jenkins, alleged 
to have been made, executed and delivered on the 12th 
day of December, A. D. 1852, and the defendant justified 
the cutting of the timber under tlie said instrument. The 
replication to the said third amended plea, which was held 
to be a full admission of the existence of the said instru- 
ment of writing, so as to relieve the defendant from prov- 
ing its execution, is as follows, viz: 

"And the said plaintiff by his attorneys as to the said 
amended third plea by said defendant now here by leave 
of the court pleaded, protesting that the said supposed li- 
cense, if any such was ever given, was obtained by false 
and fraudulent representation of and by the said defendant, 
for replication nevertheless in this behalf, the said plain- 
tiff saith, that before the said time when, &c., in the said 
declaration mentioned, and on divers other days between 
that time and the time of the commencement of this suit, 
to wit: on the fiftenth day of December, A. D. 1852, at 
&c., aforesaid, the said supposed license was revoked, re- 
called and coimtermanded bv the said Lewis Jenkins and 
by his authority. And this he is ready to verify, wherefore 
he prays judgment, &c." 

To this replication there was a general rejoinder, con- 
cluding to the country. 

This court has repeatedly held that unless the testimony 



520 SUPBEME COUET. 



Bailey ts. Clark. — Opinion of Coart. 



in the case was brought before it by a bill of exceptions, 
it could not regard it; and moreover, that the bill of ei- 
ceptions should show that it contains all the evidence bear- 
ing upon the question presented, to which it relates. In 
the case of Dorman vs. Bigelow, Exr. 1 Florida Beps., 281, 
the court ruled that "a note filed in a case, but not con- 
nected with the declaration by a bill of exceptions showing 
that it had been offered in evidence in the court below, 
cannot be deemed a part of the record submitted for the 
inspection of this court; nor can it be brought before the 
court by an asignment of errors, and remarked, "for 
aught that appears, other proofs besides the note in ques- 
tion may have been presented on the trial below, and such 
as may have influenced and determined the verdict and 
judgment, and there is nothing to show that such proof, if 
so presented, was inadmissible or otherwise exceptionable 
at law. In the absence therefore of a bill of exceptions, 
showing the testimony exhibited, the presumption is that 
there was full and adequate evidence before the jury to 
warrant and support the verdict." This case was cited 
and approved in the case of Proctor vs. Hart, 5 Fla. Reps., 
469. In that case the nature and office of a bill of excep- 
tions are fulv discussed, and numerous authorities adduced 
which fully sustain the principles there enunciated, and 
which upon a full review of them, we still believe to be 
sound law. In this last case the court observed that "it 
seemed to have been taken for granted by the counsel who 
prepared the bill of exceptions and superintended the 
making up of the record for the court, that it was suffi- 
cient if the evidence used or alleged to have been used 
upon the trial, should appear in and form a part of the 



ADJOURNED T. AT TALLAHASSEE, 1856. 521 



Bailey vs. Clark. — OpiDion of Court. 

record so certified by the Clerk of the Circuit Court, with- 
out having the same incorporated into the bill of excep- 
tions." And added, "such a practice if sanctioned would 
obviously lead to great looseness and uncertainty, and 
might work irreparable injury* to parties litigant, for it 
would be to substitute the testimony of the clerk as to 
what evidence was submitted to the jury, for that of the 
Judge." A bill of exceptions is made up with care by the 
Judge under the solemn sanction of his signature and seal, 
with the aid of the attorneys of the respective parties, 
"during the term of the cotirt (at which the trial is had) 
unless by special order further time is allowed," (5 Gen- 
eral Rules, 14, 1 Fla. Reps., XVII,) and has absolute 
verity. In the case at bar, certain testimony, or rather 
short notes or minutes of testimony, was copied by the 
clerk into the record, but it does not purport to be the whole 
of the testimony, and there is nothing to give it verity; and 
moreover there is nothing to show that it was offered to 
the jury, or if offered that any objection was made to it, 
or that any motion was founded upon it, or that there was 
any ruling of the court against the appellant in regard to 
it upon any such objection or motion. 

A bill of exceptions was necessary to show these matters, 
if they existed. It was also necessary to authorize the 
court to take notice of and to act upon it. At common 
law a writ of error lay for an error in law, apparent in the 
record, or for an error of fact, where either party died be- 
fore judgment; yet it lay not for an error in law not ap- 
pearing in the record, and therefore when the plaintiff or 
demandant, tenant or defendant, alleging anything ore tenus, 
which was overruled by the judge, this could not be as- 



52a SUPREME COURT. 



Bailey vs. Clark. — Opinion of Court. 

signed for error, not appearing within the record, nor being 
an error in fact, but in law; and so the party grieved was 
without remedy. 2 Inst., 426, 2 Bac. Abr. Ed. 1848, p. 
112. And therefore it was enacted "by the statute Westm. 
2, 13 Ed., 1 Chap., 31, that when one impleaded before any 
of tlie justices alleges an exception, praying they will allow 
it, and if they will not, if he that alleges the exception 
writes the same and requires the justices will put their 
seals, the justices shall do so." Our statute, Thomp. Dig., 
p. 351, sec. 3, No. 1, provides the manner of procuring a 
bill of exceptions, but leaves its effect to the statute of 
Westm., which is one of the acts mentioned in our statute 
adopting the common and statute laws of England, with 
certain exceptions, Thomp. Dig., p. 21, sec. 1, No. 2 

A bill of exceptions ought to be upon some point of law, 
either admitting or denying evidence, or a challenge, or 
upon some matter of law a^^ising upon a fact not denied, 
in which either party is overruled by the court. It is not 
to draw the whole matter into examination again ; it is only 
for a single point, and the truth of it can never be doubted 
after the bill is sealed, for the adverse party is concluded 
from averring the contrary or supplying the omission of it. 
2 Bac. Abr. Ed. 1848, pp. 113, 114, and the numerous 
authorities there cited which show very fully in what 
cases bills of exception will lie and also those in which 
they will not lie. 

The interesting and important question so well argued 
and in regard to which there is a very great conflict of au- 
thority, viz: whether the timber alleged to have been cut 
by the defendant on the land of the plaintiff was attached 
to the freehold and was real estate, or was to be consider- 



ADJOURNED T. AT TALLAHASSEE, 1855. 523 



Bailey vg. Clark. — Opinion of Court. 



ed as detached from the land and considered mere personal 
property, was raised by the plaintiffs demurrer to the de- 
fendant's third amended plea, and had the plaintiff rested 
his case upon the decision of the court upon that demur- 
rer, it might have been here disposed of, but after that 
demurrer was overruled, the plaintiff (as we have seen) 
filed a replication to that plea, upon which issue was join- 
ed, which issue was submitted to the jury, who found for 
the defendant; and it is a well settled rule that on over- 
ruling a demurrer, if the demurrant resorts to ulterior 
pleadings on the same point, the demurrer is waived. Bur- 
dit vs. Burdit, A. K. Marsh, 143. Beer vs. Phillips, Breese 
19, 3 U. S. Dig., p. 162, No. 715. Moore vs. Ress, 1 Mor- 
ris, 401. In Morrison vs. Morrison, 3 Stewart, 444, it was 
held that, "when a defendant demurrs and pleads to the 
same matter, and issues of fact are tried, he will be pre- 
sumed to have waived his demurrer,*' and in Porter vs. 
Lane, 1 Morris, 197, and Dougherty vs. Bridgflnan, 1 Morris 
295, that on overruling a demurrer the party demurring 
waives his demurrer by pleading anew. In the case of 
Davis vs. Dickson, 2 Stewart's Reps., 370, it was holden 
that where a plea in abatement to a writ and declaration 
is overruled on demurrer, the party cannot insist on the 
same matter in arrest of judgment if he pleads over; and 
in the State vs. Bodly, 7 Blackfd. Reps., 355, that if after 
the refusal of the court to reject a plea, the plaintiff reply 
or join issue on the plea, the refusal to reject the plea can- 
not be assigned for error. The principle deducible from 
these cases is in direct accordance with the ruling of this 
court on the same question in the case of Mitchell vs. 
Chaires, Exr. 2 Florida Reps., 18-23, which on the most ma- 



524 SUPREME COURT. 



Ballcy vg. Clark. — Opinion of Court. 

ture reflection we still hold to be correct. The case of Mitch- 
ell vs. Gotten, Exr. 3 Fla. Rep. 170, has been thought (we 
understand) to conflict with the case last cited; we deem it 
proper therefore to say that if there is anj-thing in that 
case inconsistent with the principle announced in the case 
of Mitchell vs. Chaires, Exr. on this point, we suppose it 
must have occurred through mere inadvertence, and hereby 
expressly overrule it. Whether the document which was 
made the basis of the third amended plea was submitted 
to the jury as evidence or not, we are left to conjecture. 
From the argument of counsel we should suppose it was, 
but from the bill of exceptions the inference is that it was 
not, for it states that "when the plaintiff had rested from 
the examination of his witness, defendant by his counsel 
declined introducing any testimony and proposed to go to 
the jury, claiming the concluding argument in consequence 
thereof." It does not appear, however, whether he had the 
conclusion or not, and if we could infer that he had it, wc 
should be at a loss to determine from the record, whether 
it was with or without the assent of the plaintiff; if with 
it, he had no cause to complain; no question therefore is 
presented for our consideration in regard to this matter, 
and it will l)e soon enough to decide it when it shall be 
brought directly before the court for its decision. There 
is no rule prescribed by this court allowing the party in 
such a case the conclusion ; the rule that once existed al- 
lowing it, was long since abolished, as was also the rule 
authorizing defaults to he taken in vacation. We notice 
this because it appears by the record that a default was 
taken on behalf of the plaintiff against the defendant, 
which it has been insisted was set aside on insuflScient 



ADJOURNED T. AT TALLAHASSEE. 1855,. 625 

Bailey vs. Clark — Opinion of Court. 

grounds. The setting aside of a default was at common 
law a matter of discretion with the court which could not 
be assigned as error. Whetlier under our statute it is matter 
for exception is a question, which from the turn this case 
has taken we are not now called upon to decide; but if it 
were otherwise we could not do so, because the grounds 
upon which the court decided have not been brought be- 
fore us by a bill of exceptions, and we are bound therefore 
to presume that the Circuit Court acted right in opening it. 
In the case of Blaney vs. Findley et al., 2 Blackfd. Reps. 
338, the court said, "there is no bill of exceptions to show 
us on what grounds the court decided; the presumption of 
law is in favor of the decision." This case was cited and 
approved in the case of Mitchell vs. Chaires, Exr. 2 Fla. 
Reps., 22y and in concluding that case the court said, "as 
there were several distinct issues that required proof on 
the part of the plaintiff to sustain them, and a verdict was 
rendered for the defendant upon them, and there is no bill 
of exceptions to show us on what grounds it was rendered, 
we are bound to presume that the verdict was right, and 
to sustain the judgment entered upon it.*^ This case is very 
much like the one now before us, and is sustained by 
that of Horn vs. Gartman, 1 Florida Reps., 63, 91, in which 
the court held "that every fair intendment is to be made in 
support of the judgment below," and that "the office of a 
bill of exceptions is to give the facts on which the court 
decided, and that it should give all the facts bearing upon 
the decision, so that the Appellate Court may know fully 
and clearly everything which influence the decision of the 
court." In the case of the Bk. of Virginia vs. the Bk. of 
Chillicothe, 16 Ohio Reps., 172, the Supreme Court of Ohio 



526 SUPREME COURT. 



McMillan vs. Lacy. — Opinion of Coart. 

held that "an agreed statement of facts which constitutes 
the evidence in a case, cannot be regarded as a special ver- 
dict, and forms no part of the record unless made so by a 
bill of exceptions." And in that of MitchelFs Admr. vb, 
Byrd & Gunn, 2 Englishes Reps., 408, it was held that "un- 
less the bill of exception negatives the idea that other 
testimony was adduced in the court below, the appellate 
court will presume in favor of the judgment below. 

In closing our remarks in this case we may, we think, with 
propriety say that it is always unpleasant to the court to 
be prevented from deciding the merits of a cause upon any 
technical grounds, but that we feel the less reluctance in 
affirming the judgment of the Circuit Court in this case, 
because we consider the said third amended plea, if sus- 
tained by proof, a good defence to the action, so far as re- 
gards all the timber cut by the defendant before he had 
any notice, actual or constructive, of the purchase of the 
lands on which it was cut, by the appellant; but we are 
by no means satisfied that it is a good defence for any cut 
afterwards. Let the judgment be affirmed. 



George McMillan, Plaintiff in Error, vs. Archibaid 

Lacy, Defendant in Error. 

1. Trespass, quare oloMum fregit, is a local action In which the plaintiff li 



ADJOURNED T. AT TALLAHASSEE, 1855. 527 

McMillan vs. Lacy. — Opinion of Court. 

m —■ ■ — - a 

required to prove that the place is within the Jurisdiction of the Court, and 
the defendant may show by tostlmony that it is not within it. 
2. A plea that a difference exists between the States of Georgia and Florida as 
to whether the premises lie within the Jurisdictional limits of the 
State of Georgia or the State of Florida ; that the premises are 
claimed by the State of Georgia to be within her jurisdiction ; that no line has 
been run and marked defining the boundary between the States ; that A. 
having judgment and execution on recovery of a claim of land against one 
M., the sheriff by virtue thereof executed the writ by putting out the goods 
and chattels of plaintiff L and delivering possession to defendant, as agent of 
the plaintiff in execution, is not a good bar to the action. 

Writ of Error to a judgment of the Circuit Court for 
Jefferson county. 

This was an action of trespass instituted by the defen- 
dant in error against the plaintiff in error and others for 
entering the house and premises of the plaintiff, alleged 
to be in Jefferson county in this State, and expelling him 
and his family therefrom, and throwing his furniture out of 
doors, &c. 

Process was served on plaintiff in error only, who ap- 
peared and filed three pleas. 

The first was the plea of not guilty. The third that the 
premises were not in the State of Florida. The second 
was a special plea alleging in substance that a difference 
exists between the States of Georgia and Florida as to 
whether the premises lie within the jurisdictional limits of 
the State of Georgia or the State of Florida; that the 
premises are claimed by said State of Georgia to be within 
her jurisdiction ; that no line has been by authority run and 
marked defining the boundary between said States; that 
Archibald McMillan having impleaded one Charles McCoy, 



528 SUPREME COURT. 

McMillan vs. Lacy. — Opinion of Court. 

tenant in possession at the time, in the Superior Court of 
Thomas county, Georgia, of and concerning the identical 
land in the declaration mentioned, recovered a judgment 
in said court, and obtained an award of a writ of habere 
facias possesionem; that the sheriff of Thomas county, in 
executing the command of said writ, necessarily entered 
the house and put out the goods and chattels of plaintiff, 
and that said Sheriff delivered the possession thereof as 
the agent of said Archibald McMillan, &c. 

To this plea there was a demurrer, which being sustain- 
ed by the court, defendant excepted. 

The issue upon the first and third pleas were submitted 
to the jury, who returned a verdict for eight hundred dol- 
lars, upon which judgment was entered. 

From the judgment sustaining the demurrer to the sec- 
ond plea, plaintiff in error prosecuted his writ to this 
court. 

M, D. Papy for plaintiff in error. 

John Er shine for defendant in error. 

BALTZELL, C. J., delivered the opinion of the Court. 

This was an action of trespass quare clausum frigit in- 
stituted by the plaintiff Lacy against the defendant McMil- 
lan and others, for entering the close and house of plain- 
tiff situate in Jefferson county in this State, and expelling 
him and his family with force, and throwing his furniture 
out of doors. 

The process was served on one of the defendants only, 
who appeared and filed three pleas — ^the first not guilty, 
the second a special plea, and thirdly a plea that 



ADJOURNED T. AT TALLAHASSEE, 1855. 629 

HeMUIan T«. Lm7.— Opinion of Oonrt. 

the premises in the declaration mentioned are not in the 
State of Florida. The ease was submitted to the jury on 
the 1st and 3d pleas, who found for the plaintiff and assess- 
ed the damages at $800. To the special plea a demurrer was 
filed which the court sustained, and the correctness of this 
ruling is the only subject of complaint in this court. 

This plea alleges that a difference exists between the 
States of Georgia and Florida as to whether the premises 
lie within the jurisdictional limits of the State of Georgia, 
or the State of Florida; that the premises are claimed by 
said State of Georgia to be within her jurisdiction; that 
no line has been by authority run and marked defining the 
boundary between said States; that Archibald McMillan 
having judgment and execution on recovery of a claim 
of land against one Charles McCoy, the Sheriff by 
virtue thereof executed the writ by putting out the 
goods and chattels of plaintiff Lacey, and deliver- 
ed the same to defendant as agent of said McMillan. Such 
is the substance of the plea. It is very obvious that this 
entire defence is disposed of by the plea of the general is- 
sue and the third plea alleging that the premises are not 
in the State of Florida. 

" Under the plea of not guilty the plaintiff will have to 
prove the trespass, the place in which it was committed, 
BO as to make it correspond with tlie description of the 
loctis in quo in the declaration, and the damage." 1 Arch. 
N. P. 314. " The parish and county also stated in 
the declaration by way of local description must be 
proved as laid ; a variance would be fatal." Ibid. 
317. "The defendant may disprove everything which 
it IB incumbent on the plaintiff to prove, namely, the 

35 



530 SUPREME COUET. 



HcMUlaii T8. Lacy. — Opinion of Conrt. 

■^ - — —m— I, 

trespass, the matter of aggravation, &e., or that it was 
committed in the place described in the delaration." Ibii 
318. 

It is a general rule that a plea which amounts to the gen- 
eral issue is bad ; Arch. PI. & Ev. 173. 

The premises then being out of the jurisdictional limits 
of the State of Georgia, what pretext is there for the exer- 
cise of jurisdiction by her courts. In justification of such 
an act it will not do to cite authorities to the effect that a 
judgment is conclusive and that a sheriff is bound to obey 
the mandate of his court. These all apply to cases within 
the jurisdiction of the court and not to acts committed 
within a foreign sovereignty and jurisdiction. Can it be 
credited for a moment that Georgia would tolerate the ser- 
vice of process by an officer within her limits or permit the 
jurisdiction of our courts there. 

Independent of this the addition to the plea of the fact 
that the Supreme Court of Georgia and adjudicated upon 
the subject matter of contest, by no means strengthens the 
defence impaired as it is by the other statements preceding 
it, of the difference between the two States — the premises 
in contest being claimed alike by Georgia and Florida and 
no boundary line being run. For this action is strictly 
local in its character, and may not be brought out of the 
jurisdiction in which the alleged injury was committed. — 
Livingston vs. Jefferson, 1 Brokenborough. 

The allegation is not that the premises are within the ju- 
risdictional limits of Georgia, but are claimed to be. Such 
an allegation may be regarded as an admission of the right 
being with the State of Florida. Certainly no assumption 
of jurisdiction can with propriety be based on a claim 



ADJOURNED T. AT TALLAHASSEE, 1855. 531 

McMillan vs. Lacj. — Opinion of Court. 

— ^^^^^^^^'^*'^^^^'^^^^^^^^^'^^*^^'^^— ^^^^'^^^^^^^^^^■^'^^^^^^^^*^^^^~^— ^^^^^^^^^^ ■'^^■^^ ^^^^^^^■^^^ ™^^^^'^^— ^■^^■^^^^^^-^^^^^^^^^M^^— ^^i^— 

hich will not bear the assertion of right, and put in issue 
le fact of its existence. It is easily perceived that there 
m be no traverse or denial of the fact that Georgia 
[aimed this district or country, nor would the fining of 
ich a fact determine the points at issue. The verdict of 
le jury establishes the fact of the locality of the prem- 
ies. Are we on the mere suggestion of the contrary to 
include that their finding is enough, and that the reverse 
; the fact? 

But we see nothing in the judgment or executions referred 
), to conclude the rights of plaintiff Lacey. The sheriff had 

authority under the latter to turn him out of possession, 
[e is not proved to be in privity with McCoy, the def en- 
ant on the record, either as tenant, lessee or in any other 
lape. It is true there may be some confusion in the Eng- 
sh books on the subject, but the right and justice of the 
latter agree with the view taken by the American author- 
ies. "A judgment is evidence of the right of entry, as be- 
iveen parties and privies, so as to protect the lessor in 
jectment against an action of trespass." 13 John. 229. 

"An alias writ of habere facuis will be granted where a 
erson is dispossessed by a person claiming under defen- 
ant^s title, but this does not extend to a stranger." 11 
rend. 182, 4 Ala. 582. 

On the whole case we see nothing to make us question 
le correctness of the judgment of the Circuit Court. It 

1 therefore affirmed with costs. 



Mem. — At the hearing of the following eases included in 
the preceding volume of these reports, Baltzell C. J. did 
not preside, his place be supplied by one of the Circait 
Judges, viz : White vs. Walker, Simpson, Admr., vs. Barnard 
Adams & Co., St. Andrew^s Bay Land Company vs. Camp- 
bell. 



I 

J 



REPORTS 



OF 



CASES ARGUED AND ADJUDGED 



IN THE 



Supreme Court of Florida, 



AT 



TERMS HELD IN 1856. 



By MARIANO D. PAPY, Reporter. 



VOLUME VI. NO. II. 



TALLAHASSEE: 

OFFICE OF THE FLORIDIAN <& JOURNAL. 
Printed by James S. Jones. 

1 856. 



[ Kntorod according to act of ('on^^fress, in the year 185<>, hv 
>r. 1). PAPY, in the Clerk's Ottice of the District Court of the 
Ignited States, in and for the Northern District of Florida.] 



JUDGES OF THE SUPREME COURT 

DURING THE PERIOD OP THESE REPORTS. 



Hon. THOMAS BALTZELL, Chief Justice. 

Hon. bird M. PEARSON,* / . . . j .. ^, 

Hon. CHARLES H. DuPONT, ( Associate Justices. 



MARIANO D. PAPY, Attorney General. 



JUDGES OF THE CIRCmT COURTS. 

Hon. WILLIAM A. FORWARD, Judge Eastern Circuit. 
Hon. THOMAS F. KING, Judge Southern Circuit. 
Hon. J. WAYT.ES BAKER, Judge Middle Circuit. 
Hon. JESSE J. FINLEY, Judge Western Circuit. 



♦Elected in place of Hon. T. Douglas, deceased. 



■'r 

I 
I i 





;j 



I 



TABLE OF CASES REPORTED. 



Mercer vs 723 

vs. Snell 741 

►ell V8. Chaffee et al., 724 

r vs. The State, 679 

and Ponder vs. County Commissioners 610 

11 & Daughtery vs. Skipper 580 

m & Palmer, Linton vs 633 

Exr., &c., Thornton et al., vs 646 

vs. Thigpin, Adm'r 668 

r vs. Mercer 721 

on vs. Roberts 711 

r vs. Johnson 730 

^'s Ex'r. vs. Roche 746 

Person of Color, vs. The State, 591 

)n. Hooker vs 730 

Timanus & Co. vs. Wallace 690 

•p & Wilkinson vs. Snell 750 

Perrv vs 555 

vs. Denham & Palmer 583 

igal, Adm'r. vs. Van Brunt 570 

Ian & Campbell vs. Savage 748 

', Haglor vs 721 

• vs. Booby 723 

vs. Ijewis 555 

8, Harrison vs 711 

Hurle/s Ex'r. vs 746 



VI SUPEEME COURT. 

TABLE OF CASES REPORTED.. 

Savage, McMillan & Campbell vs 748 

Skipper, Crowell & Daugherty vb 580 

Snell, Brown vs 741 

Snell, Lathrop & Wilkinson vs 750 

State, Joe, a Person of Color, vs 591 

State, Cherry vs 679 

Summerlin vs. Tyler 718 

Thigpin, Adm'r., Grady vs 668 

Thornton et al. vs. Eppes, Ex'r., 546 

Tyler, Summerlin vs 718 

Van Brunt, McDougal, Adm^r., vs 570 

Wallace, Kelly, Timanus & Co. vs 690 



N /■ 



XoTE. — 'I'hc liPiid-notw in oaili {-aw were prepiireil 
tlip .luflpe who (lolivorod Hie opinion, as rt-quired liv Is 



DECISIONS 



OF THE 



Supreme Court of Florida, 



AT 



February Term, 1856, 



Held at Tallahassee 



Thomas J. Linton, Appellant, vs. Denham & Palmer 

AND Minor Walker, Appellees. 

1. Tbe principle affirmed in the case of Carter vs. Bennett, et al. 6 Flor. R. 236, 
▼iz : tbat when all tbe equities of tbe bill are denied by the answer, it is not 
of course to dissolve tbe injunction ; tbe granting and continuing of injunc- 
tions rest in the discretion of tbe court to be governed by the nature and 
circumstances of tbe case — cited and approved. 

2. When tbe facts, circumstances and law of tbe case presented in tbe bill and 
answer afford a strong presumption tbat the complainant may be entitled to 
relief upon tbe final hearing, and in tbe meantime might suffer irremediable 
injury, the injunction should be continued to that period notwithstanding tbe 
general denial of the equities of tbe bill, in the answer. 

This is an appeal from an interlocutor}- order of the Cir- 
cuit Court, for Jefferson county, dissolving the injunction 
granted in this cause* The allegations of the fact presented 
by ftie bill and answer are fully set forth in the opinion of 
the court. 

36 



534 SUPEEME COUBT. 

Linton vs. Dcnham & Palmer and Walker — Opinion of Court 

Archer <& Papy for Appellants. 

M. A. Long and W. S. Dilworth for Appellees. 

PEARSON, J., delivered the opinion of the court 

This is an appeal from the Circuit Court sitting in Chan- 
cery for Jefferson county, for granting an order dissolving 
an injunction upon the coming in of the answers, which 
had been previously allowed in this case. 

The case made by the bill is, that the defendant Minor 
Walker, on the 1st day of January, 1850, did, by his cov- 
enant under seal, amongst other things, hire, for the space 
of five years, fifteen negro slaves, therein named, to the 
complainant. In consideration whereof, the said com- 
plainant agreed to pay the said defendant Walker the sura 
of $6000, in five equal annual instalments of $1200 each, 
to become due respectively on the 1st day of January in 
the years 1851-2-3-4 and 5, for which several instalments 
the complainant executed his five several promissory notes 
to the said defendant Walker. And that, at the time of 
this transaction. Walker was and still is insolvent, and de- 
pendent mainly for the support and maintenance of him- 
self and family upon the debt thus contracted in his favor. 
That the complainant made frequent advances to the said 
defendant Walker for necessaries, &c., the amount of 
which consisting of many small items, were not endorsed 
by way of credit upon the said notes at the time they were 
made, by reason of the inconvenience of the same, and the 
confidence existing between the parties to the transaction, 
but that these advances were made with the express un- 
derstanding that they should constitute off-sets in favor of 
the complainant, upon the settlement of said promissory 
notes, with interest at the rate of eight per cent, up to the 
maturity of such of the said notes as they might be applied 



TERM AT TALLAHASSEE, 1856. 535 



Linton T8. Denham & Palmer and Walker — Opinion of Court. 

to, and that these advances, up to the filing of this bill, 
amounted to $1002.38, including the hire of the negro girl 
Ciller for the years 1852-3 and 4, who was one of the ne- 
groes mentioned and included in the original covenant of 
hiring between the said defendant Walker and complain- 
ant, and rehired by complainant to said defendant Wal- 
ker, after deducting the said defendant's open account 
against complainant, a statement of which is filed and 
marked exhibit B. This bill further alleges that the greater 
part of these advances was made in the year 1853, and 
should have been applied to the extinguishment of the bal- 
ance due upon the instalment falling due on the 1st of 
January, 1854 — that the note for the instalment due at 
that time had been settled and takiBn up by complainant 
on the Ist day of June, 1852, and a new note then given to the 
said defendant Walker for a balance of $431.85 of that in- 
stalment, payable at the period at which the said instal- 
ment would fall due — the Ist Jany., 1854. It is charged 
in the bill that this note remained in the hands of defen- 
dant Walker until it was over-due, and was then transfer- 
red by him to the defendants, Denham & Palmer, who 
were merchants, to secure a debt the said Walker owed 
them, regardless of the complainant's right to set off his 
advances to the said Walker against it. Tliat complainant 
expostulated with the defendants Denham & Palmer, for 
having taken the said note, insisting that he had already 
paid it by his advances to the said Walker, and could 
make a successful defence if the same was put in suit. 
That the defendants, Denham & Palmer, knowing these 
facts, besought complainant to allow them to keep the said 
note for the security of their debt, while he, the complain- 
ant, could set off his advances to the said Walker against 
the last of said notes which would fall due on the Ist of 



536 SUPREME COURT. 



Linton YB. Den ham St Palilier and Walker — Opinion of Court 

January, 1855, and that complainant, being on friendly 
terms with the said Denham & Palmer, consented to this 
arrangement for their security and protection, it being gen- 
erally understood that the negroes in question were under 
mortgage to the Union Bank of Florida, that sundry judg- 
ments existed against said Walker, and he knew to be in- 
solvent. That at this time, in the store of Denham & Palmer, 
a rough estimate was made by William Denham, one of the 
firm of Denham & Palmer, of the amount of complainant's 
claim upon said Walker, with interest up to the maturity 
of the complainant's only remaining note, which would 
fall due on the 1st January, 1855, which original estimate 
is filed with the bill, marked exhibit C, and alleged to be 
in the hand-writing of said William Denham, and exhibits 
the amount of 848.50 dollars, including interest, as being 
due to complainant by defendant Walker at the maturity 
of said note on the 1st January, 1855, the said note being 
negotiable and made payable to said defendant Walker or 
order. That complainant then sought to have a settlement 
with the said Walker, but failed on account of Walker's 
inattention to business; but Walker being urged, finally 
handed the said note of $1200 to complainant, and directed 
him to make out his account and credit the amount upon 
the note. Complainant took the note and carried it home, 
but reflecting that Walker ought to be present and assist 
in the settlement, complainant declined placing any cre- 
dit upon the said note until the said Walker should by 
himself, or through some competent friend, examine and 
satisfy himself of the correctness of complainant's accoimt, 
and accordingly returned the note to said Walker. The 
bill further alleges that soon after these last occurrences, 
the defendant Walker delivered the said note to the defen- 
dants, Denham & Palmer, as collateral security for an in- 



TEBM AT TALLAHASSEE, 1856. 537 

Linton VII. Denham & Palmer and Walker — Opinion of Court 

considerable store account which he owed them, and when 
questioned on the subject by complainant, showed him the 
receipt of the defendants, Denham & Palmer, for the said 
note, to l)e held as collateral security for the debt of him, 
the said Walker, declaring to complainant that the only 
object that he had in view was to appropriate the balance 
that might be due on said note after all complainant's pro- 
per credits had been given. But nevertheless the said de- 
fendants, Denham & Palmer, have sued complainant in 
said note, and combine, with the defendant Walker, in re- 
fusing to allow complainant any credit whatever upon the 
same. 

That Darius Williams, one of the firm of Denham & 
Palmer, said to complainant that the said firm would not 
have traded for said note but for the fact that they had 
heard complainant say that he might be compelled by law 
to pay the same over again, provided the said defendant 
Walker should negotiate it before due. 

To the truth of the foregoing narrative of facts, which are 
elaborately set forth in the bill, the defendants are minute- 
ly and circumstantially interrogated in twenty-three inter- 
rogatories appended thereto. 

The answer of the defendant Walker, so far as the same 
is responsive to the bill, admits the covenant of hiring and 
the delivery of the negroes therein mentioned to complain- 
ant, and the re-hiring of the girl Ciller to him, the defen- 
dant Walker, the settlement with complainant, on the 
Ist June, 1852, and the execution by complainant of the 
note of 431.85 dollars, for the balance found due on the in- 
stalment for negro hire falling due on the 1st January, 1854. 
And the answer states that all or most of the items of 
complainant's account against defendant exhibited in his 
bill were deducted from the note settled on this occasion. 



538 SUPBEME COUET. 



Linton vs. Denham & Palmer and Walker — Opinion of Court 

or from the said complainant's notes for previous instal- 
ments. That after this settlement, he, the defendant Walk- 
er, "may have" drawn some drafts for small amounts of 
money on complainant, hut denies that it was understood 
that the same should constitute credits on either of the notes 
then held by defendant upon complainant, but that the same 
should be deducted from said defendant's account against 
complainant, (which the answer says is "positively set 
forth" in complainant's exhibit B,) and from the hire of 
the negro Drew. The answer then proceeds to dispute the 
accounts between the said- defendant Walker and complain- 
ant, and asserts the said defendant's ^Hbelief" that com- 
plainant, on a fair and full settlement, would be indebted 
to him in "a large sum of money" over and above the 
said note of $1200. It further admits that the defendant 
Walker did, in the early part of the year 1853, transfer the 
note of $431.85 to the defendants Denham & Palmer, to 
whom he was indebted, and that at the maturity of said 
note, they allowed him the full amount of it to his credit. 
That on the 1st January, 1854, the defendant W^alker was 
indebted to the defendants Denham & Palmer to the 
amount of about $350, and that in the early part of that 
year lie transferred to them by delivery, the said note of 
complaint for $1200, due on the 1st of January, 1855. — 
But that soon after the delivering of said note to the said 
Denham & Palmer, thev called his attention to the fact that 
it needed endorsement to complete the transfer, and then 
he endorsed it as they desired. That the defendant Walk- 
er was at the time of tlie said transfer of said note purcha- 
sing supplies of the defendants Denham & Palmer, but that 
he does not know to what extent his account had run at 
that time, but that the whole amount of said note was 
passed to his credit by them, at its maturity on the 1st of 



TERM AT TALLAHASSEE, 1856. 639 



Linton vs. Denham & Palmer and Walker — Opinion of Court. 

January, 1855, and a small balance remaining in his favor 
was paid to his order. That at tlie time of the transfer of 
said note to the defendants Denham & Palmer, tlie defen- 
dant Walker told them he owed tlie complainant a small 
beef account wliich they must "deduct from said note,'' but 
that complainant refused to make out and receive the 
amount of said account. That the said note was transferred 
to the said Denham & Palmer ahsolutelv, with the under- 
standing that it should pay whatever amount the defendant 
Walker then owed them, and whatever amount his account 
might amount to during the year 1854, the balance, if any, 
to be paid over to said Walker in cash. 

The answer of said defendant Walker further admits that 
he did take a receipt for the said note from the defendants 
Denham & Palmer, but that he does not know where it is 
nor remember the contents of it, but that its object was to 
show the amount of the credit to which he would lie enti- 
tled in consideration of it with the said defendants Denham 
& Palmer. It states that the said defendant Walker "does 
not recollect" and denies that he ever gave the said note to 
complainant for the purpose of having any credits placed 
upon it, and that there was no understanding that com- 
plainant's advances should be deductc^d from said notes, al- 
though he admits that previous to the settlement of the 1st 
June, 1852, he had given orders for certain debts he owed, 
on complainant, (which he does not recollect), and that they 
were included in that settlement and deducted from the 
to them in the sum of $339.40 on account for the year 1852, 
and that on a further settlement up to the 1st of January, 
1854, the said Walker remained in their debt in the sum 
note for the instalment falling due on the 1st Janu- 
stitute the firm of Denliam & Palmer, answered and say, they 
admit the hiring of the negroes as set forth in the bill, but 
know nothing of any understanding between complainant 



640 SUPBEME COURT. 

Linton VB. Denham & Palmer and Walker — Opinion of Court 

and defendant Walker that the advances made by the for- 
mer should constitute credits on his notes for negro hire 
held by the latter, nor can they say whether the defendant 
Walker is or is not insolvent, though they have heard that 
outstanding judgments and executions exist against him. 
They have no means of ascertaining the correctness of com- 
plainant's account against the defendant Walker, but they 
admit that exhibit C, containing a statement of that a^ 
count, was made in their store and is in the handwriting of 
William Denham, one of the partners in their firm. Thev 
admit the transfer of the note of $431 85 to them by defen- 
dant Walker on the 28th January, 1853, and that the same 
was charged to complainant and subsequently settled by 
him without complaint or objection. That at the time of 
the transfer of said note, defendant Walker was indebted 
arv, 1854. 

The defendants, Denham, Palmer & Williams, who con- 
of $361.60. They know not for what purpose the note of 
$431.85 was given, and deny that they solicited the com- 
plainant to waive his claim to set oflF his account upon de- 
fendant Walker against the said note and reserve it to be 
credited upon the note of $1200 still in the hands of said 
Walker. This last note of $1200 due the 1st day of Janu- 
ary, 1855, these defendants say was transferred to them by 
delivery in the early part of the year 1854, but that after- 
wards discovering tliat the said note was payable to order, 
they called the attention of defendant Walker to this fact 
and lie then endorsed it. The consideration of the transfer 
of Kaid note was the defendant's store account for the year 
1H53, amounting to $364.60, and the account which he was 
ihi'M running up for the year 1854, the amount of which, at 
the time of the transfer of said note, these defendants do 




TEAm at TALIiAHASSEE, 1856. 641 



Linton vs. Denham St Palmer and Walker — Opinion of Court. 



Dot know. But it was agreed that at the maturity of the 
said note on the Ist day of January, 1855, their whole ac- 
count should be taken out, of the note, and the balance paid 
to said Walker. This balance they allege amounted to 
$55.44 and was paid to the order of said Walker. They deny 
that they had any conversation with complainant in rela- 
tion to the said note of $1200 until after its transfer to them, 
but admit that at that time the defendant Walker informed 
them that defendant had a small beef account which was 
to be paid out of the said note by them. That they informed 
the complainant of this, but that lie refused to render in the 
account or receive the amount of it, and that they settled 
with the defendant Walker, irrespective of the beef ac- 
count. They allege that they brought suit against the com- 
plainant on the said note at his own recjuest, and recovered 
judgment on the same in Jefferson Circuit Court, on the 
12th November, 1855, for the sum of $1262.42 and costs. 

After the transfer of the said note of $1200 to them, these 
defendants say they did have a conversation with the com- 
plainant, in which they oflFered to pay him any balance 
that might be found due him on settlement with the defen- 
dant Walker, provided the said Walker was willing, but 
that the said Walker refused to accede to the arrangement. 
And they admit that they did give the paid Walker a re- 
ceipt for said note, which is not in their possession, nor do 
they know where it is. They do not remember the lan- 
guage of the receipt, but its object was simply to show 
that the said Walker was entitled to a credit for the amount 
of the note. They allege that they have no recollection of 
exhibiting the said note to complainant until after it was 
due and presented for payment, nor did they ever hear that 
complainant claimed any equities against said note until 
the filing of his bill. They deny all knowledge of any ad- 



542 SUPEEME COUET. 



Linton V8. Denham & Palmer and Walker-r-Opinion of Court 

varices made by complainant to defendant Walker on the 
notes held by said Walker against him, though they have 
heard complainant say that he had paid debts for Walker, 
and they have no recollection of any conversation with 
complainant in relation to his offsets against said note, 
and deny that the said Darius Williams ever said to com- 
plainant that they would not have traded for the said note 
but for having heard the complainant say that he might be 
compelled to pay the note again, should it be traded by 
said Walker. 

All the defendants deny generally all fraud, combina- 
tion, &c. There are some other matters set up by way of 
defence in the answer, but not being in response to the 
charges and interrogatories of the bill, they are not proper 
to be considered upon the interlocutory question now pre- 
sented. It was held by this court, in the late case of 
Young and Bryan vs. McCormick, 6 Fla. Rep., 368, that 
"where a new equity is set up by the answer to avoid that 
set up by the bill, the court will not regard it upon mo- 
tion;" and in the same case the court declared its purpose, 
"on a motion for an injunction, not to commit itself to 
points or questions tliat may arise at the final hearing.'' 
thing in tliis case definitely, except the question of injunc- 
Wo are not to be considered, therefore, as determining any- 
tion. That is in fact all that is before us. It will be time 
enough to consider the merits when they shall have been 
adjudicated in the court below, and the decree of that 
court brought before us upon appeal. 

That the complainant would be entitled to relief, upon 
the case presented by his bill, is unquestionable; and up- 
on the extent to which that case is modified bv the an- 
swers of the defendants, will depend the determination of 
the question under consideration. Upon a motion to dis- 



TERM AT TALLAHASSEE, 1856. 643 



Linton YB. Denham & Palmer and Walker — Opinion of Court. 



Bolve an injunction after the coming in of the answer, the 
defendant is the actor, and the court will presume against 
him when he does not answer fully and circumstantially. 
Judge Story, in his Equity Pleading, sec. 852, says: "An 
answer must state facts and not arguments. It is suf- 
ficient that it contains a general denial of all the matters 
charged, but there must be an answer to the sifting inqui- 
ries upon the general subject." Tried by these rules, 
what is the eflPect of the answers in this case? 'The prin- 
cipal point — the insolvency of the defendant Walker — is 
wholly evaded by him in his answer, while the other de- 
fend ants say they do not know whether he is insolvent or 
not. The rule in Chancery is that whatever is well plead- 
ed and not denied, is admitted. The insolvency is there- 
fore established; and with tliis knowledge on tlie part of 
Denham & Palmer, if they were also acquainted with tlie 
course of business between complainant and Walker, and 
the fact tliat complainant liad made considerable advances 
to Walker in the way of payment for the 1200 dollar note, 
for which they traded, then equity would compel them to 
admit the set-off claimed by complainant against the note. 
It is true that they in general terms deny this knowledge, 
but their admissions render it manifest that they should 
have been better informed. Walker was their customer, 
and had settled his account with them, by their own ad- 
mission, the previous year, by passing to them the com- 
plainant's note for $431 85, upon whicli occasion Denham, 
one of the firm, made out a statement of tlie complainant's 
advances to Walker on the note wliich Walker afterwards 
assigned to tliem. And it should be observed that the in- 
terest is calculated carefully upon each item of this ac- 
count up to the maturity of that note, thus connecting this 
account and note together under the very eye of the de- 



543 SUPREME COURT. 

IJnton VR. Deubam tt Palmer and Walker — OploloD of Court. 

vances made by complainant to defendant Walker ob 
notes held by said Walker against him, though they ' 
heard complainant eay that he iiad paid debts for W? 
and they have no recoil et-t ion of any conversation 
complainant in relation to his ofT^eti against said 
and deny that the said Darius Williams ever said t' 
plainant that they would not have traded for tlie rr 
but for having heard the complainant say that he T' 
compelled to pay the note again, should it be tr 
said Walker. 

All the defendants deny generally all fraud, 
tion, &c. There are some other matters set up 
defence in the answer, but not l)eing in reep<i 
charges and interrogatories of the bill, they an- 
to be considered upon the interlocutory questii. 
sented. It was held by this court, in the 
Young and Bryan vs. McCormick, 6 Fla. Bt- 
"where a new equity is set up by the answer 
set up by the bill, the court will not regani 
tion;'" and in the same case the court deelar 
"on a motion for an injunction, not to < 
points or questions lliut may arise at the 
thing in tiiin caeo definitely, except the (pi' 
Wf are not to be couddered, therefore, as ■! 
tion. That is in fact all that is i>efoTe up. 
enough to consider the merits when they 
adjudicated In the court below, and t! 
court brought before iis upon appeal. 

That the complainant would be entit. 
the case presented by his bill, is uxiqu< 
on the extent to which that < 
swers of the defendants, 
the question under i 




TEKM AT TALLAHASSEE, 1856. 



OB rm. DcBtaun A ritmr hdiI Will 



injanction after liic cuiiiiiig in i>f the nnswcr. thp 
t is the actor, sml the ci'iirt wilt presuim' ujriii»i>t 
n he Aoe* nm nnswi-r fully and rin-umnlsintiHUy, 
ton', in his Ki|»iiy Plfintinfj, mf. S-V?, miv^: "An 
noet state fac-t^ ami not urjiiimonls. It ii: suf- 
lat it containji a p-iwral ili'niiil of M tin- niattor!' 
but there nmsi lie an an^wfr ti> tin- sifiinn imini- 
n the peniTal siiliji-tt." 'I'ru'i! liy tlio-f nili's, 
the effect of the iinswcrM in ilii:< i-aw? Tin* i>rin- 
nt— the infuilvi-iuy ..f tlio il.-fi-ii.lanl Walker— ia 
i-acIo.l hy him iii'lii-= an.w-.T. whil.. ili.- mh.-i- .!.■- 
pay ihey il'> ii"l kiimv «!i.'|1i.t li.- is iiis..hfnl nr 
e rule in CliaiU'.Ty is that «1iiiii-\it i-; well |iU-niU 
ii.it aeriicl. is ii.lriiiil.>-l. Th.- iii-.oh.>my is ihcn-- 
hlii^lie.!: niul will. t!ii^ kiioul.-.l;:.- ..n tli.- i>ari of 
& Pahii.T. if th.-y WIT,- ills.. iU'.|iKiinli-.! wilh the 
f Inisiness Ik^Iwith .-niii]ilairiant ami U'alkiT. ami 
that loiui'liiuiant hail mailv t'liisitlerahli- nilvam-CB 
T in tlif way of jiiiym.-m for the I'MO dollar iioh', 
1 they traiiicl, then i>i]uiiy wimhl eoinpel them to 
e eet-iifT eluinieil hy cuniilainiint aj^ainBt the note, 
e that lliey in k"'"*"™! terino deny this knowled^, 
r admissions remlcr it manifest that they ihonlif 
>n iK-tter inforinrd. Walker was their ciutomrr. 
nettled liis at-count with them, by their own •*- 
tlif; jirevious year, tiy pawing to thnn the »"" 
« niiti' fnr ipt."!! 8"), upon which occuioa ft"*^ 
le linn, Tiiiide ont a statement of the «b^^*' "^ 

to Walker on the note which Witttw*""*^ '"«'" 

to them. And it ahoold be obwriv' *^* " "^ 

■^^ would 

--"^ ". in itH 

'ion, that 




544 SUPEEME COURT. 



Linton vs. Denham & Palmer and Walker — Opinion of Court 

fendant Denham. Defendant Walker, too, substantially 
admits that the admission of complainant's account as off- 
sets at former settlements, had been the practice between 
him and complainant. It would seem that a man might 
be expected to have some knowledge of an important bu- 
siness matter which he acknowledges to be in his own 
hand- writing. Xor is the positive oath of the complainant, 
that the note in question was transferred as collateral secu- 
rity only by Walker to Denham & Palmer, and that he 
the complainant read their receipt for it to that effect, fully 
met by the answers. The defendants all confess that the 
note was not endorsed when first delivered to Denham 4 
Palmer. The receipt is not produced or accounted for, and 
the defendants answer with a remarkable coincidence of 
expression that they do not know where it is, nor remem- 
ber the contents, but its object only. It is admitted that 
when the note was transferred to Denham & Palmer, they 
were informed that he owed complainant a beef account, 
which must be paid out of it, which they actually offered 
to do, and further proposed to pay complainant his debt 
against Walker, provided Walker would consent. Walker 
refused and stated that complainant owed him a "large 
sum of money^' irrespective of the note, while in his own 
answer he confesses that at the time of the transfer of the 
note, he directed Denham & Palmer to pay his beef bill 
out of it. Walker being insolvent, Denham & Palmer had 
a strong motive to secure the note to protect themselves in 
their debt, and could hold the excess in trust for Walker. 
All these circumstances taken in connection go far to raise 
the presumption that Denham & Palmer should have 
known the business relations affecting the note, between 
complainant and Walker. 

In Carter vs. Bennett, et aL, Fla. Rep., p. 236, this court 
cites with approbation. Chancellor Kent in Robertson vs. 



TERM AT TALIiAHASSEE, 1856. 545 

^ I, , ^1 II - - I I, 

Linton ts. Denham & Palmer and Walker — Opinion of Court. 

Anderson, 2 John. Ch. R where lie savs, "That even where 
all the equity of the bill is denied by the answer, it is not 
of course to dissolve the injunction, as the granting and 
continuing the injunction re«ts always in the sound discre- 
tion of the court, to be governed by the nature of the case." 
In this case the complainant's equity to have his payments 
or advances set off against a debt due to an insolvent cred- 
itor, where his own debt to such a creditor must be pre- 
sumed to have been the foundation upon which he trusted 
such a creditor, is very clear. Story's Equity Jurispru- 
dence, page 890, ei sequiter. Is this equity lost by reason 
of the insolvent assigning a negotiable instrument to a third 
party who had notice of the relation in which the parties 
stood to each other? Certainly not. The hire of the ne- 
gro Ciller to defendant Walker by complainant, she being 
one of those included in the original covenant, and her hire 
being part of the consideration of the note in question — the 
taxes and physician's bills, all of which go to make up the 
complainant's claim of set-off, are connected directly with 
the negroes and the note given for their hire. The case of 
Kilcrease vs. White, 6 Fla. Kep. 45, has been cited to u« 
to show that under such circumstances the set-off would be 
allowed, even at law; and we have been referred to the case 
of Rosa vs Brotherson, 10 Wend., 85, to show that "where 
a creditor receives the transfer of a negotiable note in pay- 
ment of a precedent debt, he takes it, although transferred 
to him before maturity, subject to all equities existing be- 
tween the original parties." Now the note in question was 
transferred to pay a precedent debt to Denham & Palmer 
by their own confession, while they held the surplus to se- 
cure another debt not then contracted. But we would 
avoid entering upon the law and merits of the case, in its 
present stage, further than to express our opinion, that 



646 SUPREME COURT. 

Thornton et al. tb. Campbell's Executor — Statement of Caae. 

where the facts, circumstances and law of the case, as pre- 
sented in the bill and answer, afford a strong presumption 
that the complainant may be entitled to relief upon a final 
hearing, and in the meantime might suffer irremediable in- 
jury, the injunction should be continued to that period, 
notwithstanding the general denial of the equities of the 
bill in the answer. 

Let the order of the Circuit Court dissolving the injunc- 
tion be reversed, and the case remanded for further pro- 
ceedings. 



Benjamin G. Thornton, Jr., et al. Appellants, vs. Frax- 
cis Eppes, Executor, &c., of J. K. Campbell, deceased, 
Appellee. 

1. A second suit will not be allowed when It appears that a Judgment, whether 
by confession, upon demurrer or verdict, and still In force, has been rendered 
In a former suit, by a court of competent Jurisdiction, for the same subject 
matter, for the same purpose, and a trial was had upon the merits. The 
same rule prevails In courts of law and equity, but there are Instances form- 
ing exceptions to this general rule In which, under peculiar circumstances, 
equity will entertain a second suit for the same cause of action and the same 
purpose. 

2. It Is not a sufficient ground to entertain a bill In equity that on a trial of 

the same question In a suit at law, upon an Issue Involving the merits, the 

Jury gave a verdict for the defendant, because of an Instruction by the court 

that if they believed the evidence, the right to sue at law was not in the 

plalntifTs but another person, or that the plaintiffs should go into a court of 
equity, though that Instruction was erroneous. The only way of avoiding 

such an Instruction are by taking a non-suit before the Jury retired, or ob- 
taining a reversal of the Judgment. 

3. If a party intends to rely upon a matter as constituting a ground for relief 
in equity, It ought to be set up In the bill ; if not so set up, though It ap- 



TEBM AT TALLAHASSEE, 1856. 647 



Thornton et al. vs. CampbeH's Executor — Statement of Caae. 



pears by the evidence In the record to have been proved. It will not be con- 
sidered at the hearing. 
4. When a Court of Equity has concurrent Jurisdiction with a Court of I^w, 
of a question which has been already tried at law, the Court of Equity 
will not entertain a suit to try the same question, because of some matter 
of which the plaintiff could have availed himself had he first sued In equity. 

This is an appeal from a decree of the Circuit Court of 
Leon county. 

The complainants filed their bill claiming certain slaves 
under a deed made in 1819 by Benj. G. Thornton conyey- 
ing certain lands and negroes in trust to Wesley Adams for 
the benefit of the wife of Benj. G. Thornton and her right 
heirs, with the power of appointment by Mrs. Thornton. 
Mrs. Thornton having died without making an appoint- 
ment, complainants, who are her children, claim that they 
are entitled to the property in question under the provis- 
ions of the deed above referred to. In the year 1832 an 
execution against Benjamin G. Thornton was levied on two 
neOToes mentioned and conveyed in the deed of tnist afore- 
said, and at tlie sale they were purchased by the defendant's 
testator, in whose possession they remained until his death, 
and afterwards in the possession of defendant as executor. 

In the year 1837 an action of detinue was brought by 
complainants in Leon Superior Court against defen- 
dant as executor as aforesaid, for tlie recovery of the slaves, 
in which a verdict and judgment were rendered for defen- 
dant. It appears that on tlie trial of this action, the Judge 
instructed the jury '"that on the showing of plaintiffs it 
was not competent for them to recover — that the title ex- 
hibited by the plaintiffs to the jury was variant from that 
declared on — that the evidence exhibited, if believed by 
the jury, showed the title to be in Wesley Adams, trustee, 
who was only competent to sue in that form of action — that 
if there was any title in the heirs of Mary Thornton, it 



548 SUPREME COURT. 



Thornton et al. ts. Campbeirs Executor — Opinion of Court 

should have been asserted in the name of Wesley Adams, 
trustee, or by bill in equity/' 

The bill filed in this case alleges that as the court deci- 
ded that a court of law could not take juricdiction of the 
case, the complainants, acting upon the suggestion of the 
Judge who tried the case, that a bill in chancery would lie 
to assert their rights, filed their bill for that purpose. 

The complainants also allege that these slaves are family 
servants and therefore are of peculiar value to them beyond 
the ordinary prices attached to this species of property. 

The defendant sets up in his answer the judgment ren- 
dered in the said action at law, by way of plea, as a bar to 
this suit. 

The plea was sustained by the court below and the com- 
plainants appealed. 

Archer & Papy for Appellants. 

Long & Oalbraith for Appellees. 

His Honor THOMAS F. KING, Judge of the Southern 
Circuit, (who presided in this case in lieu of Hon. T. Baltzell, 
C. J., disqualified to sit,) delivered the opinion of the 
court. 

The complainants found their claim upon a deed made 
in 1819, by Benjamin 6. Thornton, of certain lands and 
negroes to Wesley Adams, in trust for the benefit of Mary 
Hall Thornton, wife of Benjamin G. Thornton, and her 
heirs. The deed, after directing the payment of certain 
del)ts and giving to Mrs. Thornton the power of disposing 
of the property to such uses and such persons as she might 
appoint, provides that "if she should die without making 
any such direction or appointment, then all the benefit, 
use and advantage of the said trust to revert to her right 



TERM AT TALLAHASSEE, 1856. 549 

Thornton et al. vs. Campbell's Executor — Opinion of Court. 

heirs.*^ Mrs. Thornton died without having made an ap- 
pointment, and the complainants claim that they, as her 
heirs by virtue of this provision, are entitled to the two 
negroes here sued for as part of the property conveyed in 
the deed. In 1832, an execution against Benj. G. Thorn- 
ton was levied on the two negroes, and at the sale under 
the execution they were bought by John K. Campbell, and 
have ever since been in his possession and that of the de- 
fendant, as his representative. 

In 1837, an action of detinue was brought in Leon Supe- 
rior Court, by these complainants, against the defendant, 
in the same capacity in which he is now sued, for the re- 
covery of the negroes, and at the trial of that suit at the 
fall term of 1837, a verdict and judgment were rendered 
for the defendant. Soon after that, this suit in Chancery 
was commenced for the same slaves. 

In his answer to the bill, the defendant has set up, by 
way of plea, the judgment in the action of detinue, which 
is in full force, as a bar to this suit. The Circuit Court sus- 
tained the plea, and from its decision this appeal was ta- 
ken. The first question for us to determine, then, is as to 
the sufficiency of this plea. If it be good, it is unnecessary 
to enquire further into the case. 

The rule is that a second suit shall not be allowed when 
the judgment in the first, whethej upon confession, demur- 
rer or verdict, and still in force, was given by a court of 
competent jurisdiction, and was for the same subject mat- 
ter, for the same object, and the case was tried upon the 
merits. And the same rule prevails in courts of law and 
equity. 5 Bac. Abr., Tit. Pleas and Pleading; Irwin vs. 
Knox, 10 John. 374; Louw. vs. Davis, 13 John. 227; Sni- 
der et al. vs. Croy, 2 John. 227; Behrens vs. Sicveking, 2 
My. & Cr. 602; Behrens vs. Pauli, 1 Keene, 462; Orcutt 
37 



550 SUPREME COUET. 



Thornton et al. vs. Campbell's Executor — Opinion of Court 

VS. Orms, 3 Paige, 463; 2 Dan. Ch. Pr. 758. It appears 
fnat in this suit, and in the action of detinue, the parties 
are the same and the purpose the same. 

But there are instances forming exceptions to the gene- 
ral rule, in which Courts of Equity, notwithstanding the 
subject of the suit and the purpose are the same, will, un- 
der peculiar circumstances, entertain a bill and grant re- 
lief, and we will now consider the grounds relied on by 
the complainants to exempt the suit from the force of the 
rule as to former judgments. 

It was insisted in argument by the counsel of complain- 
ants, as a ground upon which the bill should be entertain- 
ed, that the complainants were infants when the suit was 
brought at law. Whether, upon general principles, this 
would be a sufficient ground to authorize a new suit, it is 
unnecessary for us to determine here. There is no allega- 
tion in the bill that the complainants were minors when 
they sued at law, nor is there sufficient proof in the record 
of this fact. But if it. were proved, we ought not to con- 
sider it, for it is unfair to a defendant that he should be 
called upon at the hearing to answer to a matter which he 
was not informed by the bill he must prepare for. The 
coTnplainants ought to have pet up the matter of infancy in 
their bill, if thev intended to avail themselves of it. 

Another ground of equitable jurisdiction contended for, 
is the allegation of the bill that these slaves are family ser- 
vants, and for that reason are of peculiar value to the com- 
plainants. What merit there may have been in an allega- 
tion of this kind, had the first suit for the negroes been 
brought in Chancery, it is also unnecessar}' for us to de- 
termine. We do not think it a sufficient ground to author- 
ize a new suit to be brought in equity. If the jurisdiction 
of a Court of Chancery is concurrent with that of law, for 
the purpose of ascertaining the title of the slaves, which 



TERM AT TALLAHASSEE, 1856. 551 



Thornton et al. vs. Campbell's Executor— Opinion of Court. 

was the object of both suits, the complainants should have 
brought their jSrst suit in chancery, had they intended to 
rely on such ground. The fact existed at the time the ac- 
tion was brought at law, and was known to the complain- 
ants, and it would be unjust and vexatious to a party to 
cause him to defend tr^'o suits, when in one the plaintiff 
could have availed himself of every thing in his favor. If 
such a proceeding were allowed, the plea of a former judg- 
ment would be of little value, for there is hardly any case 
in which some new matter might not be alleged. See 
Saunders et al. vs. Frost, 5 Pick. 275. 

Another ground on which the complainants contend that 
this bill should be entertained, is that the merits were not 
tried in the suit at law. It appears that on the trial of the 
action of detinue, when the issue was upon the plea of not 
guilty, the plaintiffs, with other testimony, introduced the 
trust deed before mentioned, and the court charged the ju- 
ry "that on the showing of the plaintiffs, it was not compe- 
tent for them to recover — that the title exhibited by the 
plaintiffs was variant from that declared on — that the evi- 
dence exhibited, if believed by the jury, shewed the title 
to be in Wesley Adams, trustee, who was only competent 
to sue in that form of action — that if there was any title 
in the heirs of Mary Thornton, it should have been asserted 
in the name of Wesley Adams, or by bill in equity." We 
are inclined to think this instruction was erroneous, but as 
we are not called upon to say whether the action was prop- 
erly brought, we do not decide that point. We regard the 
instruction in the same light as cliarges frequently given 
by the court to the jury, when it advises them of tlie force 
and effect of a fact, if established before them. It was but 
saying to the jury, if you believe the testimony to be true, 
then the plaintiffs have failed in making out their case; 
they have not proved an important fact, a legal estate in 



652 SUPREME COURT. 



Thoraton et al. V8. Carapbell's Executor — Opinion of Court. 

themselves, but have proved one in some one else. Admit- 
ting this instruction to have been wrong, and that because 
of it, the verdict was given for tlie defendant, was the case 
tried upon its merits? We think it was. WTienever an 
issue involving the merits is submitted to the jury, it is a 
trial on the merits, and a judgment on the verdict in such 
a case is conclusive against a second suit for the same 
cause, of action, until it is reversed or set aside. Dane's 
Abridgement, vol. 6, p. 89, was cited as an authority to show 
that when the plaintiff had misconceived the form of his 
action, it should be no bar to a subsequent suit fo the 
same cause of action. It will be seen by reference to the 
authorities cited in the Abridgement that they apply when 
it is made to appear that upon the face of the pleadings in 
the former suit, the plaintiff had made a mistake in the 
manner of bringing his suit. But the authorities do not 
support the proposition that when, as here, a case is once 
submitted to the jury upon an issue involving the merits 
of the plaintiffs claim, and a judgment is rendered on their 
verdict, a court of law or equity will allow another suit for 
the same cause of action and the same purpose, upon tlie 
ground that the verdict in the first suit was caused by an 
erroneous instruction of the court to the jury. A judgment, 
in such a case, is conclusive until reversed or set aside. — 
There are cases in which items of an account have l)een 
sued on in a second action, when the plaintiff was satisfied 
that the evidence in the first did not sustain them, but in 
these cases the items were withdrawn or abandoned before 
the case went to the jury. In such instances, the abandon- 
ment of the items was equivalent to a non-suit or a discon- 
tinuance, which are no bar to a new action. There are ca- 
ses also in the New York Reports in which it appears, ac- 
cording to the practice there, that claims may be allowed up- 
on motion and affidavits, and when they are rejected on such 



TERM AT TALLAHASSEE, 1856. 553 



Thornton et al. vs. Campbell's Executor — Opinion of Court. 



applications, an action may still be brouglit for them, and 
the ground for sustaining the new action is, that decisions 
upon motion and summary application, which do not ad- 
mit of great discussion or of being subject to a writ of error, 
are not iSnal and conclusive so as to amount to a res judi- 
cata, and a bar to a renewed consideration of the case. — 
See Arden vs. Patterson, 5 John. Ch. B., 52, Simson vs. 
Hart, 10 John. K., 63. 

In examining the authorities, we have not met with a 
case which decides that a plaintiff, after having deliberate- 
ly submitted his claim to a jury on an issue upon the mer- 
its, and a judgment rendered on the verdict has not been 
reversed or set aside, may be permitted to bring a second 
suit for the same cause of action. If there is such a decis- 
ion, we think it cannot be sustained upon principle. There 
are instances in the books in which it was made palpable 
that justice had not been done in a suit at law, yet a judg- 
ment having been deliberately given, and still in force, a 
Court of Equity refused to relieve. In Stephenson vs. 
Wilson, 2 Vern. 325, a verdict and judgment went against 
the defendant on account of a false plea filed by the attor- 
ney at law without direction, but the Court of Chancery 
would not relieve, though the right was never tried at law. 
In Protherne vs. Forman, 2 Swanst. 231, a judgment by 
default had been obtained against a defendant, and he 
brought his bill to be relieved against the judgment. His 
counsel insisted that when the justice of the cause is clear, 
and the merits have not been examined at law, nor sub- 
mitted to the opinions of a jury, equity would relieve, but 
the Chancellor held that this was not sufficient to author- 
ize a Court of Equity to interfere. In Hunt vs. TerriFs 
heirs, 7 J. J. Marsh, 67, it appeared that the plaintiff, on 
demurrer to the evidence, failed in the suit at law, because 
the court thought his evidence not suflBcient. He then 



664 SUPEEME COUET. 



Thornton et al. vs. Campbell's Executor — Opinion of Court. 

filed his bill in equity for the same claim, when the defect 
in the testimony at law was supplied, and the justice of 
his case was made clear, but relief was refused. 

In this case, as in those to which we have just referred, 
we think substantial justice has not been done by the suit 
at law upon the question of the right of complainants to 
these negroes. We regret that it cannot be done now, but 
we must be governed by an adherence to principle and a 
regard for the effect of this decision upon future cases, and 
not by a wish to relieve against a hardship. Were this 
suit to be entertained, there is hardly any that has gone off 
upon a wrong instruction to a jury, for which a second or 
more suits should not be allowed. The proper course of 
complainants was, after hearing the opinion of the court 
as to the effect of the evidence, to have taKen a non-suit 
before the jury retired, or if they considered the view of 
the court erroneous, to have excepted and appealed. Not 
having done either, but having persisted in letting the case 
go to the jury, and having allowed the judgment to stand 
unreversed, and not having set up in their bill any ground 
of fraud, mistake or surprise, we must hold the judgment 
at law conclusive of the rights of the complainants to these 
negroes. 

We may properly apply here the language of the court 
in Gregory vs. Burral, 2 Ed. Ch. R., 420, where an attempt 
was made to avoid, by a bill in equity, the decision of a 
coart of law against the plaintiff. "It was made by a court 
of competent jurisdiction of plaintiff's own choosing, and 
the form of the action was of such a nature as to let in the 
whole equity of the plaintiff's case. The right or wrong of 
the decision is not now in question. If there were error 
in Die judgment, the plaintinff should have sought to correct 
it elsewhere. It is not the business, nor is it within tiie 
province of this court to review it, and while the judgment 



TERM AT TALLAHASSEE, 1856. 555 

Perry v«. Lewis — Opinion of Court. 

* — 

remains in force, it is conclusive upon the rights of the par- 
ties/' 

Let the decree of the Circuit Court be affirmed with 
costs. 



George Perry, Plaintiff in Error, vs. Nicholas Lewis, 

Defendant in Error. 

1. The general principle adopted by civilized nations is, that the nature, Talidity 
and in.terpretation of contracts, are to be governed by the lex loci of the coun- 
try where the contracts are made or to be performed ; but the remedies 
are to be governed by the lex fori. 

2. That portion of the period of prescription which has run under the limitation 
laws of another State.cannot be united with the time which has elapsed under 
the laws of tbla State, so as to complete a statutory bar of the right of action 

3. The rule is that a foreign statue of limitation is Inoperative except In cases 
where it not merely professes to bar the remedy, but goes directly to the ex- 
tinguishment of the debt, claim, or right. 

Writ of Error to the Circuit Court of the Western Circuit 
for Santa Eosa county. 

The facts of the case are contained in the opinion of tlie 
court to which reference is made. 

0. 8. Hawkins, for Plaintiff in Error. 

72. L, Campbell, for Defendant in Error. 

PEARSON, J., delivered the opinion of the court. 

This is an action of Trover brought to recover the value 
of a slave lost by Lewis, the plaintiff below, in Sumpter 
county, Alabama, in July, 1844— sold by one Jones, to 
Henshaw of Covington county, Alabama, on the 11th No- 
vember, 1844 — ^by Henshaw again sold to Criglar of Santa 



556 SUPBEME COURT. 



Terry vs. Lewis — Opinion of Court. 

Bosa county, Florida, on the 26th June, 1848 — and finally 
sold by Criglar to the present plaintiff in error. Perry, who 
was the defendant below of the same county and State, on 
the 26th October, 1849, the plaintiff being ignorant whose 
possession the slave was in until April, 1851. 

Upon demand and refusal of the delivery of the property 
to plaintiff, action was brought on the 2d June, 1851. 

There were several pleas filed by defendant, but the only 
one relied upon for the defence was the statute of limita- 
tions of this State. Upon the trial below, the court was 
moved to instruct the jury. "That if they were satisfied 
from the evidence that th^re was a continued adverse pos- 
session of the negro by Henshaw, Criglar and Perry, under 
their respective bills of sale, part of the time in the State of 
Alabama, and part of the time in the State of Florida, 
and that the time during which Henshaw had adverse pos- 
session of the negro in Alabama under the sale to him, 
when connected with the time during which Criglar and 
Perry successively had adverse possession of him in the 
State of Florida under tlie respective sales to them, would, 
when added togetjier, amount to five years next before the 
commencement of the suit, then the plaintiff ought not to 
recover." Which instruction the court refused — the de- 
fendant excepted, and the jury having found for the plain- 
tiff, and judgment being rendered accordingly, the de- 
fendant's counsel appealed and assigns such refusal as 
error. 

The statutory bar of the action of Trover in Alabama is 
six years — in this State five years. From the foregoing 
statement it is apparent that the plaintiff was not barred 
during the possession of Henshaw in the State of Alabama 
imder and by virtue of the statute of limitations of that 
State; and it is equally manifest that he was not barred 
under our statute of limitations by the possessions of Crig- 



TERM AT TALLAHASSEE, 1856. 557 



Perry V8. Lewis — Opinion of Court. 



lar and of the defendant Perry, even if connected together, 
in this State, ^^'^lile it appears that if the possession of 
Henshaw in the State of Alabama can be tacked to tliat of 
Criglar and Perry in this State, the prescription of our stat- 
ute would be complete. 

The questions therefore presented for our consideration 
are, 

Ist. Is the doctrine of tacking possessions admissible in 
an action of Trover? 

2d. If such doctrine is admissible will it apply in a 
case where one of the possessions relied upon occurred in 
another State? 

1. Upon the first question we express no opinion, because 
the minds of the court are not fully agreed in relation to 
it, and a majority of the court are of opinion that a proper 
solution of the second question is decisive of the case. 
The principles in regard to tacking possession will be con- 
sidered when they shall necessarily arise before us. 

2. Conceding for the purpose of the present argument 
that the doctrine of tacking does prevail to some extent, 
we are met by the second question as to whether a statutory 
bar can be made out by tacking part of the time which 
the statute of limitation has run under the statute of anoth- 
er State, to another part which has elapsed under the stat- 
ute of this State. This question is so well settled upon 
principle and authority that it scarce requires discussion at 
this day. It was not made or discussed before us, but must 
necessarily control this case. Our statutes of limitation, 
by an amendment enacted in 1846, Thomp. Dig., p. 443, 
5 2, place non-resident plaintiffs upon the "same footing'^ 
with resident citizens of the State. Nor is there any spo- 
cial exceptions from the general law of limitation in 
•behalf of defendants, save those contained in the amend- 
ments of 1833 and 1835, Thomp. Dig. p. 445, § 1 and 2, by 



668 SUPREME COURT. 



Terry vb. Jjewis — Opinion of Court. 

which they are permitted in cases where the cause of action 
arose abroad to plead the statute of limitations of the for- 
eign state or place where it accrued, provided it would be 
a good bar in such place. This provision is obviously not 
applicable to a defendant whose liability arose in this State 
— ^nor has the defendant sought to obtain its benefit by 
pleading the prescription of Alabama. The parties then 
stand simply upon the footing of two citizens of the State 
litigating a cause of action arising in the State, within the 
limit of State prescription. For it is manifest the plain- 
tiff had no cause of action against the defendant Perry, pre- 
vious to his possession of the negro by purchase from Crig- 
lar, on the 26th October, 1849, although a right of action 
had accrued to him in the State of Alabama, as far back 
as the 11th November, 1844, against Henshaw, who pur- 
chased at that time from Jones. This right of action might 
have been pursued successfully at any time within the 
statutory period against Henshaw in the State of Alabama, 
and if neglected until Henshaw's possession ripened into 
title by the lapse of time in Alabama, then Henshaw's sale 
to Criglar, would have conferred title, and in like manner 
Criglar's conveyance to the defendant Perry would have 
vested the title in him, of which he might have availed him- 
self under the general issue. 5 Clark & F. Rep. 1, 15, 
16, 17; 3 Strob. K. 331; Story's Conflict of Laws, §582; 
5 Yerger, p. 1. But Henshaw's possession was less than 
the statutory limitation of Alabama, and therefore conferred 
no title upon him. There is then no ground of defence for 
the defendant but in assuming that the statute of Alabama, 
having commenced to run against Henshaw, would continue 
to run notwithstanding intervening disabilities, not only in 
his favor but in favor of those claiming under him, although 
citizens of a different State. This is a familiar and sound 
principle of law in its just application, but it can have no 



TERM AT TALLAHASSEE, 1856. 559 



Perry vb. Lewis — Opinion of Court. 

force' or effect beyond the jurisdiction of the forum in 
which it is invoked. It is a principle of the law of prescrip- 
tion, and like that, a pairt of the lex fori and can have no- 
extra territorial authority. Judge Story in his work on 
the Conflict of Laws, sec. 582, says: "It is no answer to 
say that when once the statute of limitations begins to run, 
no subsequent impediment stops it from continuing to run. 
That is true in a nation whose laws contain such provisions 
or inculcate such a doctrine, but no other nation is bound 
to give effect to such provisions or to such a doctrine. — 
They are strictly intra territorial regulations and interpre- 
tations of the lex fori, which other nations are not bound 
to observe or keep." Had the plaintiff sued Henshaw in 
the courts of Alabama as regulated by her laws, he might 
have availed himself of this principle in those forums if 
necessary to his defence, "but it can have no application 
in the present case, for the plain reason, that those laws can 
have no obligatory force out of their own jurisdiction.*' — 
Justice Wheeler in Hays vs. Cage, 2 Texas Rep., 507. It 
is a maxim, says Judge Story, (in his work above quoted,) 
of international law that "whatever force and obligation 
the laws of one country have in another, depend solely up- 
on the laws and municipal regulations of the latter; that 
is to say, upon its own proper jurisdiction and polity, and 
upon its own express or tacit consent." The only authori- 
ty given to the statute of limitations of Alabama in our 
courts, is under the laws of 1833 and 1835, before cited, 
which it has been shown are inapplicable to this case. It 
has been urged that the principle that the statute of limi- 
tations only applies to causes of action subsisting within 
the State, might give rise to stale demands arising in otlicr 
States. The argument ab inconvenienti is entitled to but 
little consideration in legal adjudications. We must declare 
the law as we find it. But we think this very objection 



560 SUPREME COFET. 



Perry vs. Lewis — Opinion of Court. 



was in the view of the Legislature, and designed to be reme- 
died by the two acts of the General Assembly last cited, 
securing the right to defendants to plead the statute of lim- 
itations of other States in all cases where it would prove 
a bar in those States. Thus at once tacitly admitting that 
the law was as we state it, and providing a remedy for the 
further protection of our citizens from stale foreign de- 
mands originating without our jurisdiction. "The general 
principle by civilized nations is, that the nature, validity, 
and interpretation of contracts are to be governed by the 
laws of the country where the contracts are made or are to 
be performed, but the remedies are to be governed by the 
laws of the country where the suit is brought, or as it is 
compendiously expressed by the lex forV^ 8 Peter's S. C. 
Eep, 361. 

We come then to the final question, whether the period 
of prescription which has partly run under the laws of 
another State can be united with the time which has 
elapsed under tlie laws of our own State so as to complete a 
statutory bar. Mr. Justice Story has fully considered this 
question in his compendious work on the Conflict of Laws, 
sec. 582, and concludes that it cannot be done except in 
cases where the foreign statute does not merely profess to 
bar the remedy, but goes directly to the extinguisliment of 
the "debt, claim, or right." Chancellor Kent is equally 
clear and decisive on the question in Buggies vs. Keeler 
3 Johns Rep., 261. In Alexander vs. Bennett, 5 Richard- 
son's Law Rep., 189, the Supreme Court of South Carolina 
have elaborately considered and decided the question in 
the same way, under circumstances nearly identical with 
those presented in this case. Town's Executor vs. Brad- 
well, 1 Stewart & Porter, Ala. Rep. 36, establishes the 
same principle. And to the same effect are Gautier vs. 
Franklin, 1 Texas Rep., 732; Hays vs. Cage, 2 Texas Rep., 



TERM AT TALLAHASSEE, 1856. 561 



Perry vs. Lewis — Opinion of Court. 

501; 1 Caine's Rep., 402; 7 Mass. Rep., 515; 14 Mass. 203; 
and 13 Missouri Rep., 160. Still further authority might 
be cited, but we deem the foregoing sufficient to establish 
the principle upon which this case turns. It is consonant 
with reason and principles of Justice, that where one of 
two innocent parties must suffer a loss, it should fall upon 
him who has been most remiss in securing his rights. Such 
is the result from the application of the rules of law in 
this case. Xo degree of diligence or of caution could have 
protected the plaintiff against the abduction of his slave, 
either by kidnapping or by his own volition; wherein the 
defendant was put upon his guard by the principles of the 
common law, caveat emptor being the rule. It was his du- 
ty to have enquired into the character of the title which 
he purchased, and if a doubt arose of its validity, to have 
secured himself by a sufficient warranty from the vendor; 
failing in this, he has acted in his own wrong and cannot 
justly complain of the assertion of the plaintiff's rights. 

Let the judgment of the Circuit Court be affirmed with 
costs. 

DUPONT, J., also delivered the following opinion: 

I entirely concur in the judgment of affirmation which 
has just been pronounced in this cause, but do not concur 
in either the doctrines contained in the opinion of the ma- 
jority, nor in the reasoning by which those doctrines are 
sought to be enforced. Without entering into an argu- 
ment in reference to the correctness of those doctrines, or 
of their applicability to the facts of this case, I shall con- 
tent myself with this brief expression of my dissent, and 
proceed at once to give the ground of my conclusion and 
the views which I entertain of the whole case. 

The only question raised or argued before us at the 
hearing was whether, in an action of trover, a defendant. 



562 SUPREME CODET. 



I*erry vs. Lewis — Opinion of Court. 

in order to complete the bar of the statute of limitation, 
shall be allowed to avail himself of the time which may 
have elapsed from the conversion of the property by his 
immediate vendor and by those under whom he claims, or 
whether he shall be confined to the date of his own con- 
version at the point of time from which the running of the 
statute shall be calculated. In other words, whether the 
defendant in possession shall be allowed to add to the 
period of his possession the time that the property may 
have been in the adverse possession of those under whom 
he claims title, so as to make out the full statutory bar of 
five years. 

This is a question of much greater diflBculty than it 
would seem to be at the first blush, involving as it does 
considerations of paramount importance, bearing upon the 
protection and enjoyment of personal property, whether 
considered in reference to the rights of the original owner 
or to those of the bojia fide purchaser. It is somewhat 
strange, that in our examination of the English Reports, 
we have been unable to find a single case bearing imme- 
diately upon the question raised in this case. It is true 
that there are numerous cases involving the question of a 
fraudulent concealment of the property, and also the 
further question of the ivant of knowledge by the plaintiff 
of the particular date of the conversion. But tliese are 
questions essentially different from the one under discus- 
sion, which is the naked right of the defendant to lap the 
period of his possession upon that of those under whom he 
claims, so as to make out the full time required for the 
statutory bar, and therefore afford no light for its elucida- 
tion. 

The counsel for the appellant cited at the argument 
Angel on Limitation, 513, to show that in ejectment seve- 
ral adverse possessions, being in privity one with the other, 



TEBM AT TALLAHASSEE, 1856. 563 



Perry ts. I^wis — Opinion of Court. 

^ ■ _ ■ -- ■ - _ ^^^ ^ ^^ 

and all referable to the same entry, might be united or 
tacked together so as to make up the full time of the statu- 
tory bar; and it was contended that in this respect there 
is no difference between the action of ejectment for the 
recovery of the possession of land and that of trover for 
the value of personal property. The doctrine of a conti- 
nuity of possession, where land is the subject of the suit, 
seems to be well established in the English courts, and 
there is but little contrariety of opinion on the subject in 
our State Courts. The argument of the appellant's coun- 
sel is based entirely upon analogy, but I am not satisfied 
that any analogy really exists. It seems to me that there 
is a manifest difference in the principles upon which the 
two actions proceed. In ejectment, the subject-matter of 
the suit is the posgession of the land itself, the damages 
being unusually only nominal, and tlie action must be 
brought against a party in the possession of the premises. 
Possession is a species of title, and, as such, may be trans- 
ferred by assignment. WTien one occupant surrenders 
the possession to another, he surrenders his liability to 
answer for the occupancy, and that other assumes it and 
with it whatever benefit may result therefrom. There 
would seem, then, to be a propriety in allowing the de- 
fendant in ejectment to avail himself of all the rights 
growing out of and the incidents attaching to the thing 
assigned, viz: the entry of the assignor, and that of those 
under whom he may claim. 

The theory upon which the action of trover proceeds, 
and the philosophy upon which it is based, is quite differ- 
ent from this. The subject-matter of the suit is not the 
thing itself, but only the value of the thing, and the action 
may be brought against any one who, at any time, may 
have been guilty of a wrongful conversion, whether he be 
in or out of possession at the time of the institution of the 



564 SUPEEME COURT, 



Perry vs. Lewis — Opinion of Court. 

suit. It thus appears that "possession^' does not enter 
into the theory of this action. Nothing is predicated 
thereon. The entire gist of the action is the wrongful con- 
version. Now, a wrongful conversion is a tort, and I am 
aware of no principle upon which a tort can be held to be 
transferable or assignable. If I be correct in this that a 
tort is unassignable, (and of this there can be no question,) 
upon what logical principle can the defendant who is sued 
avail himself of the benefit growing out of the prior con- 
version of a former wrong-doer — a benefit growing out of 
that which was never assigned to him, and which, in fact, 
is incapable of assignment? Different from the principle 
governing the asignment of land, when one wrongful pes-. 
sessor of personal property surrenders his possession to 
another, he does not therewith surrender his liability, but 
he continues to be liable for his own act of conversion, and 
it would seem, upon just and logical principles, that, as 
the liahiliiy continues, any benefit growing out of the time 
of the conversion ought also to remain with him. But the 
benefit cannot both remain with him and be in another at 
one and the same time, and yet upon no other hypothesis 
can the assignee avail himself of the conversion of his 
assignor. For these reasons I am inclined to the conclu- 
sion that the analogy contended for by the counsel for the 
appellant does not exist. 

But it may be said that my argument is based upon 
technicalities. This is doubtless true to some extent, but 
it does not therefore weaken it. Technicalities mav be 
legitimately invoked whenever the use of them is in- 
tended to subserve a legitimate purpose, viz: the elucida- 
tion of truth; and I am greatly in error if any argument 
upon the distinctive characteristics of the various actions 
can be framed without in some measure resorting to tech- 
nicalities. 



TEEM AT TALLAHASSEE, 1856. 565 



PeiTi' vs. Lewis — OpinioD of Court. 

But, aside from the reasons growing out of tlie distinc- 
tive characters of the two actions, there are considerations 
of stem justice and enlightened policy, based upon the pe- 
culiar nature of the two kinds of property wliich peremp- 
torily demand that the mode of applying the statute of 
limitation should be different when sought to be applied 
to suits in which the one or the other is involved.^ Land 
is of a permanent and fixed nature. It has no locomotion, 
nor can it be stolen and secreted or carried away by any 
one. Its particular location is always presumed to be 
known to its rightful owner, and if any entry be effected 
thereon, the act is always open to detection, and the per- 
petrator of the wrong is unconcealed. If, therefore, a stran- 
ger should enter upon land, and after remaining in posses- 
sion for a time, should convey his possession tq a bona fide 
purchaser, and he to another, and so on through any num- 
ber of assignments, and eventually the mere naked posses- 
sion shall ripen into a statutory title which shall be para- 
mount to the title of the original and true owner, and 
thereby deprive him of his property, he ought not to be 
permitted to complain as against a bona fide purchaser in 
possession; for the injury is the legitimate result of his 
own wilful negligence. By proper care and vigilance on 
his part, he may always protect his real property from the 
unlawful entry of other persons, and even if made, he may 
readily arrest the operation of the statute by the timely 
institution of a suit, the party to be sued being always 
known. As between one so culpably negligent of his 
rights and one purchasing for a full consideration and with- 
out notice, when the question of loss arises, there would 
seem to be no room for doubt. Not so, however, with re- 
gard to personal property. It has no fixed or permanent 
locality — it is the subject of larceny — it may be stolen and 
carried beyond the reach or knowledge of the rightful 
38 



568 SUPREME COURT. 



Perry vs. Lewis — Opinion of Court. 

reasons upon which it is based. In our researches among 
the American reports, we have found one case in which 
the point under discussion was expressly ruled the other 
way. I allude to the case of Smith's Adm'rs vs. Xewby, 
13 Missouri R. 159. The decision in this case is predica- 
ted upon what I conceive to be a strained construction of 
the statute, and therefore inconclusive upon the point. 

The particular phraseology of the statute is invoked by 
the advocates of either side of the question under discussion 
as an argument in support of their respective h3rpotheses. 
By the one, it is insisted that the words of the statute cre- 
ate a general inhibition referable to the right of the plain- 
tiff exclusively, and that it is not at all applicable to the 
right of the defendant, that the statute begins to run from 
the first moment when a cause of action in reference to the 
thing in controversy arises against any one whomsoever, 
and that its running is not confined to the cause of action 
counted upon in the particular suit. By the other, it is in- 
sisted that the words of the statute limit Its operation to the 
particular cause counted upon, and that it is not allowable to 
link the possession of the vendor to that of the vendee so 
as to complete the full statutory period. The advocates of 
these two hypotheses insist upon applying their respective 
constructions of the statute to every case, regardless alike of 
the nature of the thing which constitutes the subject-matter 
of the suit, and the distinctive characteristics of the action 
to be brought for its recovery. It is to this want of dis- 
crimination that we may attribute the wide difference of 
opinion that exists upon a question of every day occurrence. 
It is said, however, in some of the reported cases, that to 
discriminate in the application of the statute as I have in- 
timated, would be to affix to it qualijications and limita- 
tions never contemplated by the Legislature. This is mere 
assumption and the result of a want of reflection, for there 



TEEM AT TALLAHASSEE, 1856. 569 

Perry vs. I>ewis — Opinion of Court. 

is nothing better iinderptood in jurispriulenco, than that in 
the application of many of the ordinary principles of law 
they are s\ibjected to material modifications when applied 
to the one or the other of the two great classes of estates. 
If this ]ye so with reference to the ordinary principles of 
law, why may it not equally obtain in the application to 
statutes ? 

The result of this argument is, that in an action of Trover, 
where the statute of limitation had fullv run in favor of the 
vendor, the sale to the defendant «ued confers a title to the 
property in controversy, paramount to that of the original 
owner, and that the defendant may protect himself by a 
plea of title, and is not put to the plea of the statute. But 
that where the statutory' bar was not complete at the date 
of the transfer to the defendant, he will not be allowed, un- 
der a plea of the statute, to link the period of his possession 
to that of those under whom he claims, so as to make out 
the time prescribed by the statute, within which the suit 
is to be brought. 

Applying these conclusions to the case before us, it will 
be readily perceived that I am of the opinion that the 
Judge of the Circuit Court did not err in refusing to give 
the instruction prayed for, which constitutes the only error 
complained of. 



570 SUPREME COURT. 



McDougall, Adm*r, vs. Van Brunt — Statement of Case. 



John McDougall, Administratob. &c., of Joseph W. 
Lea, deceased, et al.. Appellants, vs. Richahd Van 
Brunt, Appellee. 

Where a defendant, who Is sued In equity by an administrator for the re- 
covery of a slave alleged to belong to the estate of his intestate, sets ap an 
absolute title to the same and relies upon a bill of sale from the In testate di- 
rectly to himself to support his claim. If the other evidence in the caaie 
shows that the slave was In posession of the Interest at the time of his 
death, and had so continued from the date of the bill of sale, and that i 
stranger took possession of her immediately after that event, and there is no 
evidence to negative the idea that the defendant <^ta!iied bis pnnecMlun 
from such stranger, the acts and declarations of the latter, so far as they are 
Immediately connected with his possession, may be admitted as evidence 
with respect to the character of the defendant's title. 

Appeal from a decree of the Circuit Court for Leon 
county, sitting in chancery. 

Complainants filed their bill, alleging that some time in 
March, 1845, Joseph W. Lea, dec'd, borrowed of Richard 
Van Brunt, senior, the father of defendant, two hundred 
and fifty dollars, for which he gave his promissory note 
payable to Richard Van Brunt, Sr., one day after date, 
and at the same time gave a bill of sale for a certain slave 
named Maria as a security for said note, and for no other 
purpose; that Joseph W. Lea, the intestate, retained the 
possession of said slave until his death, which occurred in 
the latter part of the year 1846, or early in 1847; that 
Richard Van Brunt, Sr., about two or three years after the 
death of Joseph W. Lea, came to the place where said Lea 
resided and took possession of said slave and removed her 
from the premises of said Lea, alleging at the time that he 



TEEM AT TALLAHASSEE, 1856. 571 



McDousrall, Adm*r, vs. Van Brunt — Statement of Case. 

held a bill of sale for her, executed by said Lea to secure 
the monev loaned as aforesaid. 

ft' 

The bill further alleges, that the note given by Ijea was 
endorsed by Van Brunt, Sr., in blank to the defendant, 
who afterwards endorsed the same to Lloyd & Flagg, and 
that the note has since been paid off and satisfied in full 
by McDougall, administrator; that defendant obtained the 
possession of the slave from his father, Richard Van Brunt, 
Sr., under color of the bill of sale aforesaid; that at the 
date of the bill of sale defendant was a minor, a member 
of Ms father's family; that Richard Van Brunt, Sr., since 
the slave was taken possession of as aforesaid, has died. 
The prayer is in substance that the bill of sale aforesaid 
be declared a mortgage; that the debt to secure which it 
was given be declared to have been paid, and that the de- 
fendant be decreed to surrender the slave to McDougall, 
as administrator of the estate of Lea. 

The answer denies that defendant obtained his posses- 
sion from Richard Van Brunt, senior his father,, or that 
the bill of sale referred to was intended to operate as a 
mortgage, and expressly avers tliat defendant bought the 
slave from Lea for two hundred and fifty dollars, which he 
paid in cash and received at the time of the possession of the 
slave, which he has ever since retained. 

Thomas \V. Terrill, a witness examined for complain- 
ants, testified that the slave in controversy was at the 
house of Joseph \V. Lea at the time of his death, and had 
been for some time previously; that she was in Lea's pos- 
session for months befvjre his death, and that he saw her at 
Lea's residence the day after his decease; that defendant, 
in 1846, was about twenty years of age, and that he was 
then living with his father; that he was present when a 
conversation passed between Alsa Strickland and Richard 
Van Brunt, Sr., at the house of I^ea, the day after his 
death. Van Brunt, Sr., said he had loaned Lea two hun- 



572 SUPREME COURT. 



McDougall, Adm*r, vs. Van Brunt — Statement of Case. 

dred and fifty dollars, for which he had his note and a bill 
of sale to the negro girl in question to secure him in the 
payment of the note, and offered the note, bill of sale and 
negro to Strickland if he would return to him the money 
he had loaned to Lea. 

Alsa Strickland, another witness examined for com- 
plainants, testified that the slave in question was in Lea's 
possession until his death; that Richard Van Brunt, Sr., 
took possession of said slave after Lea's death; that he, 
Van Brunt, told witness that he held a bill of sale for said 
slave, as security for money loaned Lea; that Van Brunt, 
Sr., offered to give him the slave and all the papers if he 
would pay the money loaned, viz: two hundred and fifty 
dollars. Van Brunt, Sr., at the same time offered to war- 
rant the title. On the day Joseph. Lea died, witness re- 
quested Van Brunt, Sr., to administer on Lea's estate; 
that he declined, stating that he held a note and bill of sale 
to the girl to secure him in the payment of the money bor- 
rowd by Tjea. 

Gillen B. Strickland, another witness examined for com- 
plainants, testified that the slave in controversy remained 
in Lea's possession until his death; that shortly after Lea's 
death, witness being present, Van Brunt, Sr., took posses- 
sion of the slave, declaring he had a bill of sale for her as 
security for money loaned to Lea. Van Brunt, Sr., after- 
wards offered the slave to the sister of witness on payment 
of the monev loaned. 

For the defendants