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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^^^^  *■  !■  — ^^^  mi  ■  ■■  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. 


HU^';uvisl  Uv  \\w  vourt   and  jiulcmoni  thereon  was    aecord- 
.r:  \  t';\'er<Nl  tor  !ho  vlolVtitlant. 

I'v  *;;   soxoral   vu'ivpi  of  tlxo  lourt,    the    plaintiff    has 
,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- 

\^      «\       «.*«*.    \,C^».*     >4\*  »«»!***, I  »*»    Jul'  >• 

ft 

X'^r.U  V'\^4  t'v  Ov  v.r:  orrtv  ::>  >;:>i?.ir.ir-i:   :efen-lant's   de- 

«>. 

%  \ 

Vv  *'.«r  u-tvr  %^  iN^  rV>A  "ri*><>  T-^-    .:-:->:: -n   as  to   the 

" \^^-:  *vv,  *v,:;x  of  ^r,  ^rxiv^nv-T    or    *:r.-r;:>:T^:'-*T   lo   retain 

v.:  ,^^  ;V  Avsi^i  *>.v>,  r.*Av  v>  r.  :^  t;    '  -^f  ^.t^.^s^   :«>r   a  debt 

,^  V   ^  ^"*.  'V,v^^  ;v  T^rns:;*:^^  «^r  ':r.T«>?.'^A:t\  jltj.v  ::5    c*>iisequeiit 

.     ..;>  >  vvr  Yt^J,^  ^\^,  jfcs  :,^    ^?>  .vrx"T-   *:n£   tS*  r^RtsOQ   upon 
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  hkuM^ 
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  thp=» 
case  above  cited  from  Barn,  and  Aid.  462,  and  many  mor^= 
might  1)0  adduced,)  as  well  as  in  this  country,  and  to  poinF=^ 
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 

0  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 

0 


;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,  Charles  W.  Martin  was  examined, 
who  testified  that  he  knew  the  slave  Maria  enquired  of; 
that  he  knew  her  in  the  spring  of  1846;  she  was  then  a 
small  child,  three  or  four  years  of  age.  Her  value  then 
was  about  two  hundred  dollars.  She  was  in  Mr.  Lea's 
possession  when  he  first  knew  her.  She  remained  in  his 
possession  until  his  death. 


I 


TERM  AT  TALLAHASSEE,  1856.  573 

McDougall,  Adm'r,  vs.  Van  Brunt — Opinion  of  Court. 

James  C.  Van  Brunt,  a  brother  of  defendant,  was  exam- 
ined in  his  behalf.  He  states  that  he  knew  defendant 
purchased  the  slave  from  Joseph  W.  Lea  some  time  in  the 
spring  of  1846;  that  liis  mother,  himself  and  some  of  the 
children  were  present  at  the  time  of  tlie  purchase.  He 
saw  money  paid — thinks  two  hundred  and  fifty  dollars. 
The  slave  was  small.  She  was  at  Lea's  house  until  his 
death.  At  the  time  of  the  purchase  does  not  think  that 
any  writing  passed — saw  none.  The  witness  states  that 
his  father  and  family,  consisting  of  eight  children,  lived 
with  his  brother,  who  was  then  20  or  21  years  of  age  and 
unmarried,  and  that  his  brother  had  been  attending  to 
the  business  of  the  farm,  part  of  the  time  overseeing. 

The  defendant  offered  and  read  in  support  of  his  title  an 
absolute  bill  of  sale  from  I^ea  to  himself,  purporting  to  have 
been  executed  shortlv  l)efore  Lea's  death.  This  bill  of  sale 
is  admitted  to  be  in  the  hand  writing  of  Van  Brunt,  Sr., 
who  is  the  only  subscribing  witness  thereon. 

The  court  below  ruled  out  so  much  of  the  depositions  of 
the  witnesses  as  referred  to  tlie  acts  and  declarations  of 
Van  Brunt,  Sr.,  on  the  occasion  of  his  taking  possession  of 
the  slave  after  the  death  of  Lea,  as  inadmissable  to  defeat 
the  title  set  up  by  the  defendant,  and  dismissed  tlie  bill. 

Archer  &  Papy  for  Appellants. 

D,  P.  Ilogue  and  B,  F.  Allen,  for  Appellee. 

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

This  is  a  suit  in  equity,  instituted  by  the  appellant,  as 
the  administrator  on  the  estate  of  Joseph  W.  I^ea,  deceased, 
and  others,  for  the  recovery  of  a  negro  slave  alleged  to  be 
the  property  of  the  said  estate. 

The  bill  alleges  that  the  intestate.  Lea,  about  the  month 
of  March,  A.  D.,  1845,  borrowed  of  Richard    Van    Brunt, 


574  SUPREME  COURT. 


McDouj^all,  Adm'r,  vs.  Van  Brunt — Opinion  of  Court. 

Sr.,  the  sum  of  two  hundred  and  fifty  dollars,  for  wliich  he 
gave  his  promissory  note,  and  at  the  same  time  executed 
and  delivered  to  him  a  bill  of  sale  for  tlie  negro  in  contro- 
versy, which  was  intended  and  designed  to  operate  only 
as  a  mortgage  to  secure  the  payment  of  the  said  note.— 
That  in  the  latter  part  of  the  year  1846,  or  early  in  the 
year  1847,  the  said  intestate  departed  this  life,  being  then 
in  possession  of  the  slave,  and  never  having  parted  with  the 
same.  That  two  or  three  days  after  the  decease  of  the  in- 
testate. Van  Brunt,  Sr.,  came  to  the  late  residence  of  the  in- 
intestate,  and  took  the  slave  into  his  possession,  alleging 
at  the  time  that  he  held  a  bill  of  sale  for  her,  to  secure  the 
before  mentioned  loan  of  money.  That  the  note  given  for 
the  loan  of  money  was  made  payable  to  Van  Brunt,  Sr., 
who  indorsed  the  same  in  blank  to  the  defendant,  who  af- 
terwards indorsed  and  transferred  the  same  to  Messrs. 
Lloyd  &  Flagg,  and  that  the  note  has  since  been  paid  off 
and  fully  satisfied.  That  Van  Brunt,  Jr.,  the  defendant, 
obtained  the  possession  of  the  slave  from  his  father,  Van 
Brunt,  Sr.,  under  color  of  the  bill  of  sale  before  referred  to. 
That  the  defendant  was  at  the  date  of  the  bill  of  sale,  a  mi- 
nor and  a  member  of  his  father's  family,  and  that  Van 
Brunt,  Sr.,  has  since  died.  The  substance  of  the  prayer  is, 
that  the  mortgage  debt  be  declared  to  have  been  paid,  and 
that  the  defendant  be  decreed  to  surrender  the  slave  to  the 
plaintiff  as  administrator  of  the  estate. 

The  defendant  in  his  answer  denies  that  he  obtained  his 
possession  from  his  father,  or  that  the  bill  of  sale  under 
which  he  claims  title  to  the  slave  was  intended  to  operate 
as  a  mortgage,  and  expressly  avers  that  he,  defendant, 
bought  the  slave  from  Lea  for  the  sum  of  two  hundred  and 
fifty  dollars,  which  he  paid  to  him  in  cash,  and  received 
from  him  at  the  time  of  the  purchase  the  possession  of  the 
slave,  which  he  has  retained  to  the  present  time. 


TERM  AT  TALLAHASSEE,  1866.  576 

McDougall,  Adm*r,  vs.  Van  Brunt — Opinion  of  Court. 

At  the  hearing  before  the  Chancellor,  the  depositions  of  sev- 
eral witnesses  were  proposed  to  be  read  going  to  show  that  the 
slave  was  in  the  possession  of  Lea  at  the  date  of  his  decease, 
and  that  she  was  taken  possession  of  by  Van  Brunt,  Sr.,  who 
declared  at  the  time  that  he  held  a  bill  of  sale  for  her  from 
the  intestate,  to  secure  the  payment  of  a  note  of  two  hun- 
dred and  fifty  dollars,  which  he  had  given  to  him  for  that 
amount  of  Ynoney  loaned  to  him  prior  to  his  decease. — 
These  several  depositions  were  read  as  proofs  in  the  cause, 
with  the  exception  of  so  much  thereof  as  referred  to  the 
acts  and  declarations  of  Van  Brunt,  Sr.,  upon  the  occasion 
of  his  taking  possession  of  the  slave,  after  the  decease  of 
the  intestate;  which  acts  and  declarations  were  excluded 
as  being  inadmissable  to  defeat  the  alleged  absolute  title 
of  the  defendant.  The  defendant  exhibited  in  support  of 
his  title  an  absolute  bill  of  sale  from  the  intestate  I^ea  di- 
rectly to  himself,  purporting  to  have  been  executed  a  short 
time  prior  to  his  decease. 

The  petition  of  appeal  alleges  two  grounds  for  the  rever- 
sal of  the  decree  of  the  Chancellor.  Ist.  That  the  court 
erred  in  excluding  the  acts  and  declarations  of  the  elder 
Van  Brunt  from  the  evidence  in  the  cause.  2d.  That  upon 
the  pleadings  and  testimony,  (with  or  without  the  declara- 
tions of  Van  Brunt,)  the  cause  should  have  been  decided 
for  the  complainants. 

The  first  assignment  as  set  forth  in  the  petition  is  based 
upon  the  assumption  that  the  acts  and  declarations  of  the 
elder  Van  Brunt,  as  testified  to  by  the  witnesses,  were  a 
part  of  the  res  gestae,  and  as  such  were  admissable  to  estab- 
lish the  point  at  issue,  to  wit:  the  character  of  the  defen- 
dant's title  under  the  bill  of  sale — whether  absolute  or  only 
a  security  in  the  nature  of  a  mortgage. 

It  was  insisted  on  the  part  of  the  appellee,  that  his  titu' 
to  the  slave  in  controversy  could  not  be  affected  by  the  acts 


576  SUPREME  COURT. 


McDougall,  Adm'r,  vs.  Van  Brunt — Opinion  of  Court. 

and  declarations  of  liis  father,  who  was  an  entire  stranger 
to,  and  wholly  unconnected  with  the  alleged  purchase  from 
Lea.     It  is  undoubtedly  correct  as  a  rule  of  evidence  that 
no  one  can  be  held  to  be  responsible  for,  or  bound  by  the 
acts  or  declarations  of  a  mere  stranger;  and  if  that  were 
the  position  of  the  elder  Van  Brunt  in  reference  to  the  al- 
leged title  to  the  slave,  we  should  have  no  difficulty  in  sus- 
taining the  action  of  the  Chancellor  in  ruling  out  from  the 
evidence  his  acts  and  declarations.     But  we  are  elearlv  of 
opinion  that  these  acts  and  declarations  are  intimately  con- 
nected with  the  title  of  the  defendant,  which  he  seeks  to 
set  up  under  color  of  the  bill  of  sale  from  Lea;  and,  being 
so   connected,   there   is   a   manifest   propriety   in   allowing 
them  to  have  their  proper  weight  in  determining  the  rights 
of  the  parties.     The  correctness  of  this  conclusion  will  be 
readily  perceived  if  we  advert  to  the  other  evidence  in  the 
cause.     It  is  distinctly  proved  by  the  testimony  of  several 
of  the  witnesses,  whose  depositions  are  before  us,  that  the 
slave  in  controversy  was  in  possession  of  Lea  at  the  time 
of  his  decease,  and  remained  at  his  late  residence  with  his 
other  slaves,  until  she  was  taken  possession  of  and  removed 
l)v  the  elder  Van  Brunt,  a  few  davs  after  the  decease  of  the 
intestate  under  a  claim  of  title.     Thomas  W.  Terrell,  one 
of  the  witnesses  examined,  testifies  that  the  slave  was  at 
the  house  of  intestate  at  the  time  of  his  death,  and  had 
been    tliere    for    some    time    previous    to    that    event.     In 
anotlier  part  of  his  deposition  he  says,  "the  above  described 
negro   girl    was   in   the   possession   of   Joseph    W.    Lea   for 
months  before  his  deatli.*'     He  also  testifies  that  he  saw 
her  at  the  residence  of  the  intestate  the  day  after  his  de- 
cease. 

The  depositions  of  Alsey  Strickland  and  Gillen  B.  Strick- 
land, are  likewise  to  the  same  effect,  all  going  to  show  that 
the  slave  was  in  the  possession  of  the  intestate  at  the  date 


TERM  AT  TALLAHASSEE,  1856.  677 

McDouffall,  Adm'r,  vs.  Van  Brunt — Opinion  of  Court 

of  his  decease,  and  that  she  remained  at  his  residence  until 
she  was  afterwards  taken  possession  of  by  the  elder  Van 
Brunt  under  a  claim  for  security  for  money  loaned,  and  re- 
moved by  him  to  his  residence.  These  witnesses  are  also 
sustained  in  their  evidence  by  the  deposition  of  Charles 
W.  Martin,  a  witness  examined  on  behalf  of  the  defendant, 
who  says — "1  know  the  girl  Maria  enquired  of — I  knew 
her  in  the  Spring  of  1846.  She  was  then  a  small  child 
about  3  or  4  years  of  age.  Her  value  then  was  about  $200. 
She  was  in  Mr.  Lea's  posession  when-  I  first  knew  her. — 
She  remained  in  Mr,  Lea's  possession  until  his  death J^ 

Now,  the  evidence  contained  in  the  depositions  just  re- 
ferred to,  shows  conclusively,  and  freed  from  a  shadow  of 
doubt,  that  down  to  the  period  of  Lee's  death,  he  had  al- 
ways had  the  possession  of  the  slave — that  the  possession 
had  been  continuous  and  uninterrupted,  (with  the  excep- 
tion of  the  time  that  she  was  in  the  possession  of  Vickers 
under  a  pledge,)  and  that  it  was  never  changed  until  she 
was  taken  possession  of  by  the  elder  Van  Brunt.  Here 
then  the  first  change  of  possession  that  we  have  any  knowl 
edge  of,  is  the  change  effected  by  the  elder  Van  Brunt  un- 
der a  claim  of  title.  The  next  change  that  we  hear  of,  is 
the  assertion  of  the  claim  of  the  defendant  under  color  of  a 
bill  of  sale  from  the  intestate.  It  is  verv  manifest  from  the 
evidence  before  referred  to,  that  (notwithstanding  the  alle- 
gation in  the  answer,)  he,  the  defendant,  never  obtained 
the  posession  of  the  property  from  the  intestate  Lea.  And 
the  clear  presumption  is,  in  the  absence  of  proof  to  the  con- 
trary, that  his  present  possession  was  obtained  from  his 
father,  the  elder  Van  Brunt,  and  from  no  one  else.  If  we 
be  correct  in  this  conclusion,  and  it  would  seem  not  to  ad- 
mit of  a  doubt,  then  it  results  conclusively  that  the  posses- 
sion of  the  defendant  is  intimately  connected  with  the  pos- 
session of  his  father,  and  that  the  father  and  son  stand  in 


578  SUPREME  COURT. 


McDougall,  Adm'r,  vs.  Van  Brunt — Opinion  of  Court. 

full  privity  respecting  the  title  to  the  slave  in  controverej. 
If  this  be  so,  it  cannot  assuredly  be  said  that  the  acts  and 
declarations  of  the  elder  Van  Brunt,  touching  the  manner 
of  acquiring  his  possession  of  the  slave,  and  his  object  and 
motive  for  the  acquisition,  are  those  of  a  mere  stranger,  and 
are  to  be  •  excluded  from  the  evidence  as  being  res  inter 
alios  acta. 

It  is,  moreover,  worthy  of  consideration,  in  determining 
upon  the  admissability  of  this  evidence,  that  the  defendant 
is  proven  to  have  been  a  minor  at  the  date  of  the  bill  of 
sale  under  which  he  sets  up  liis  title  to  the  slave,  and  wb» 
residing  with  his  father,  as  a  member  of  his  family;  that 
the  bill  of  sale  is  admitted  to  be  in  the  handwriting  of  the 
father,  and  that  he  is  the  only  attesting  witness  to  the  exe- 
cution of  the  same.  The  note  also  which  it  is  alleged  was 
given  for  the  loan  of  money  is  shown  to  have  been  en- 
dorsed to  the  son,  and  affords  strong  cireiimstantial  en- 
dence  to  connect  him  with  that  transaction.  These  circum- 
stances, we  think,  go  far  to  show  that  the  aspect  of  the 
transaction,  as  it  really  took  place,  may  be  very  different 
from  that  presented  by  a  mere  reference  to  the  bill  of  sale, 
and  ought,  therefore,  to  exercise  a  proper  influence  in  de- 
termining not  only  the  admissability  of  the  evidence,  but 
the  true  character  of  the  entire  transaction. 

We  have  considered  this  question  without  reference  to 
authorities,  as  it  involves  a  simple  elementary  principle 
about  which  there  is  no  dispute.  The  only  difficulty  en- 
countered is  in  its  application,  and  upon  that  point  the 
books  furnish  but  an  uncertain  guide.  It  may  not,  how- 
ever, be  out  of  place  to  note  the  rule  of  evidence  upon  the 
subject  of  fraud  as  observed  in  the  courts  of  law  and 
equity  respectively.  Mr.  Story,  in  his  Treatise  on  Equit)' 
Jurisprudence,  remarks,  that  "Courts  of  equity  do  not  re- 
strict themselves  by  the  same  rigid  rules  as  courts  of  law 


TERM  AT  TALLAHASSEE,  1856.  679 

McDougall,  Adxn'r,  vs.  Van  Brunt — Opinion  of  Court. 

o,  in  the  investigation  of  fraud,  and  in  tlie  evidence  and 
•roofs  required  to  establish  it.  It  is  equally  a  rule  in 
ourts  of  law  and  couits  of  equity,  that  fraud  is  not  to  be 
'rerrume:!,  but  it  muFt  ])e  established  by  proofs,  (^ircuni- 
tances  of  mere  suspicion,  leading  to  no  certain  results, 
rill  not,  in  either  of  these  courts,  be  deemed  a  sufficient 
[round  to  establish  fraud.  On  the  other  hand,  neither  of 
hese  courts  insists  upon  positive  and  express  proofs  of 
raud;  but  each  deduces  them  from  circumstances  afford- 
Qg  strong  presumptions.  But  courts  of  equity  will  act 
pon  circumstances,  as  presumptions  of  fraud,  where  courts 
f  law  would  not  deem  them  satisfactory  proofs."  (Story's 
Cq.  Ju.,  5  190.) 

From  the  view  which  we  have  taken  of  the  fii*st  assign- 
aent  contained  in  the  petition  of  appeal,  and  from  the 
onchision  to  which  we  have  been  lead,  we  deem  it  unne- 
essary  to  investigate  the  other  ground  alleged  for  a  rever- 
al  of  the  decree  of  the  Chancellor,  which  would  involve  a 
ull  discussion  of  the  merits  of  the  cause.  As  the  case 
fiust  necessarily  be  sent  back  for  further  proceedings,  . 
ven  were  we  to  decide  upon  the  merits,  it  is  better  to  re- 
erve  that  invstigation  until  there  shall  have  been  a  full 
earirg  upon  the  new  trial  to  be  granted. 

Let  the  decree  of  the  Chancellor  be  reversed,  with  costs, 
nd  the  case  be  remanded  to  the  court  below,  with  direc- 
ions  to  reinstate  and  rehear  the  same  as  upon  a  new  trial, 
nd  otherwise  to  proceed  in  said  cause  in  accordance  with 
he  views  herein  expressed. 

BALTZELL,  C.  J.,  delivered  the  following  opinion : 

I  concur  in  the  view  taken  by  the  court  in  this  case,  but 
hink  that  they  should  have  gone  further  and  disposed  of 
t  finally.  There  is  no  reason,  so  far  as  I  can  see,  why  the 
ase  should  not  be  so  disposed  of.  I  see  nothing  to  pre- 
ent  a  final  decision  on  the  merits  in  this  court  in  the  pre- 


580  SUPREME  COURT. 

/ 

Crowell  et  al.  vb.  Skipper — Statement  of  Case. 

sent  aspect  of  the  record.  There  is  no  pretence  of  any 
new  testimony — no  application  is  made  for  a  rehearing  or 
new  trial.  Why,  then,  is  the  case  remitted  for  new  trial 
to  the  court  below? 


Jesse  Crowell  and  William  H.  Daughtry,  PLAnrnpps 
IN  Error,  vs.  Ebenezer  M.  Skipper,  Defendant  ik 
Error. 

1.  The  law  of  the  place  where  a  contract  la  made  is,  generally  speaking,  the 
law  by  which  the  contract  is  to  be  expounded,  but  it  is  nevertheless,  the 
right  of  this  government  to  prescribe  rules  and  regulations  for  the  protec- 
tion and  enjoyment  of  all  property  which  shall  be  brought  within  its  terri- 
torial Jurisdiction. 

2.  The  3rd  Section  of  the  Act  of  1823, with  reference  to  fraudulent  conTeyances 
(Thomp.  Dig.,  217,  c,  11,  §1,)  requires,  that  where  the  pos«f salon  of  personal 
property  is  in  one  person  and  the  uae  in  another,  in  order  to  protect  It 
against  liability  for  the  debts  or  contracts  for  the  person  in  possession,  the 
deed  by  which  it  is  held  must  be  recorded  within  five  years.  Whether  or  not 
this  section  is  applicable  to  contracts  made  out  of  this  State.    Quere? 

This  is  a  writ  of  error  sued  out  by  plaintiffs  in  error  to 
reverse  a  judgment  of  Jackson  Circuit  Court.  [As  the 
opinion  of  the  court  embraces  a  statement  of  the  facts  pre- 
sented by  the  record,  the  reporter  thinks  it  would  but  en- 
cumber tlie  reports  to  make  out  a  statement  of  his  own, 
and  hence  he  refers  to  the  opinion  for  the  facts  of  the  case.] 

James  F.  McClellan,  for  Pltffs.  in  Error. 

A.  H.  Bush,  for  Deft,  in  Error. 

DU  PONT,  J.,  delivered  the  opinion  of  the  court. 

The  record  presents  the  following  state  of  the  case.  On  the 
15th  day  of  January,  A.  D.,  1852,  the  defendant  in  error 


TEBM  AT  TALLAHASSEE,  1866.  681 


Crowell  et  al.  ts.  Skipper — Opinion  of  Court 

recovered  a  judgment  against  Bennet  Whidden  in  the  su- 
perior court  of  Decatur  county,  in  the  State  of  Georgia,  for 
the  sum  of  $143.64,  principal,  and  $20.41,  interest.  He 
afterwards  brought  suit  on  said  judgment  in  the  circuit 
court  of  Jackson  county,  in  this  State,  and  recovered  a 
judment  thereon  on  the  6th  day  of  May,  1853,  upon 
which  a  writ  of  fi.  fa.  was  issued  and  levied  upon  the 
property  in  controversy,  viz:  negro  boy  Patrick.  The 
plaintiffs  in  error  interposed  a  claim  to  the  property  as 
trustees  under  a  deed  of  marriage  settlement  for  Mary 
Jane  Whidden,  the  wife  of  the  defendant  in  execution. 
The  claim  was  tried  in  the  court  below,  (a  jury  having 
been  waived,)  and  the  judgment  was  against  the  claimants, 
and  to  reverse  that  judgment,  this  writ  of  error  is  brought. 

To  support  their  title  to  the  property,  the  claimants  in- 
troduced two  deeds  in  writing— the  one  purporting  to  be  an 
antenuptial  agreement,  by  which  the  defendant  in  execu- 
tion, in  consideration  of  a  marriage  to  be  consummated 
with  Mary  Jane  Daughtry,  agreed  to  settle  upon  her  all 
the  property  to  which  she  might  become  entitled.  This 
deed  is  dated  on  the  1st  day  of  December,  1848.  The  oth- 
er purports  to  be  a  conveyance  of  the  property  to  the  plain- 
tiffs in  error,  as  trustees  for  the  separate  use  and  benefit  of 
the  wife,  and  is  dated  on  the  31st  day  of  January,  1850. — 
Both  of  these  deeds  purport  to  have  been  executed  in  De- 
catur county.  State  of  Georgia,  the  then  residence  of  the 
parties,  and  the  rei  sitae  of  the  property,  and  to  have  been 
registered  in  the  office  of  records  for  said  county  on  the 
20th  day  of  February,  1850. 

[The  consideration  of  the  deed  of  settlement  is  stated  to 
be  "a  marriage  already  had  and  solemnized,^'  and  at  the 
time  of  its  execution,  the  property  therein  conveyed,  was 
in  the  hands  of  the  administrator  of  the  estate  of  the  father 
of  Mary  Jane  Whidden,  and  not  reduced  into  possession 
39 


582  SUPREME  COURT. 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

by  her  husband.  Botli  deeds  were  "filed  for  record  and 
recorded  the  6th  of  August,  1852/'  in  Jackson  county,  in 
this  State.] 

The  first  question  that  arises  for  our  consideration  is 
with  respect  to  the  validity  of  these  deeds  in  the  State  of 
Georgia,  where  they  were  executed,  and  how  far  they  pro- 
tected the  separate  estate  of  the  wife,  under  the  laws  of 
that  State,  while  the  property  remained  in  that  jurisdic- 
tion. 

It  is  insisted  by  the  counsel  for  the  defendant  in  error, 
that  the  antenuptial  agreement  is  void  for  the  reason  that 
it  was  not  recorded  within  three  months  after  its  execu- 
tion, in  accordance  with  the  requisition  of  the  laws  of  the 
State  of  Georgia,  and  we  are  referred  to  the  statute  on  the 
subject.     It  is  unnecessary  to  enquire  into  the  validity  or 
invalidity  of  the  antenuptial  agreement,  inasmuch  as  there 
is  an  absolute  conveyance  of  the  property  in  the  deed  of 
marriage   settlement   above   referred   to.      This   latter  deed 
does  not  (as  is  assumed  by  the    counsel)    purport    to   have 
been  executed  "in  pursuance"  of  the  agreement;    the   con- 
sideration of  the  deed  is  stated  to  be  "a  marriage  already 
had    and   solemnized.''     But,  even   if   it  had    in   fact*  pur- 
ported to  liavc  been  made  in  pursuance  of  the  agreement, 
and,  from  some  want  of  formality,  the  agreement  had  been 
rendered  void,  we  do  not  see  tliat  this  could  in  the  slight- 
est  degree    liave   affected    the    validity   of   the   instrument 
The  making  of  the  deed  of  settlement  was  an  act  highly 
proper  in  itself,  and  the  consideration  of  a  consummated 
marriage  was  sufficient  to  sustain  it  as  a  valid  instrument. 
Circumstanced   as  this  property  was,  it  being  still  in  the 
hands  of  the  administrator  and  not  reduced  to  possession 
by  the  husband  prior  to  tlie  date  of  the  trust  deed,  if  it 
had  been  necessary  to  resort  to  a  court  of  equity  to  obtain 
the   possession   from   the   administrator,   the   chancellor  in 


TERM  AT  TALLAHASSEE,  1856.  583 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court 

his  decree  would,  upon  an  intimation  to  that  effect,  have 
ordered  a  suitable  provision  to  be  made  for  the  separate 
use  of  the  wife.  The  trust  deed  stands  upon  its  own  foun- 
dation, a  marriage  consummated,  and  did  not  require  the 
support  of  the  antenuptial  agreement. 

It  seems  to  be  admitted  on  all  sides,  that  the  validity  of 
marriage  settlements,  as  inter  paries,  is  recognized  by  the 
laws  of  Georgia,  and  that  when  the  deed  of  settlement  has 
been  properly  executed  and  recorded,  it  will  protect  the 
separate  estate  of  the  wife,  situated  in  that  jurisdiction, 
against  any  liability  for  the  debts  and  contracts  of  the  hus- 
band. Seeing,  then,  that  this  was  a  legal  and  valid  con- 
tract under  the  law  of  Georgia,  and  that  the  property, 
while  it  remained  in  the  State,  was  protected  by  the  deed 
of  trust,  the  next  question  that  arises  is  as  to  the  effect  pro- 
duced upon  the  rights  of  the  parties  by  a  removal  of  the 
property  into  this  State.  That  effect  depends  entirely 
upon  our  local  law,  for  it  is  the  unquestionable  riglit  of 
every  government  to  prescribe  rules  and  regulations  for 
the  protection  and  enjoyment  of  all  property  which  shall 
be  brought  by  any  one  within  its  territorial  jurisdiction. 
Xor  is  the  practical  enforcement  of  that  right  at  all  in  con- 
flict with  the  well  settled  doctrine  that  the  operative  effect 
of  a  contract,  when  not  illegal  or  prohibited  by  the  law  of 
the  forum,  is  to  be  determined  by  the  lex  loci  contractus. 
Chief  Justice  Marshall,  in  the  case  of  Harrison  vs.  Sterry, 
(5  Cranch  E.,  189,)  has  laid  down  the  doctrine  with  his 
usual  force  and  simplicity.  His  language  was:  "The  law 
of  the  place  where  a  contract  is  made  is,  generally  speak- 
ing, the  law  of  the  contract,  i.  e.  it  is  the  law  by  which  the 
contract  is  expounded.  But  tlie  right  of  priority  forms  no 
part  of  the  contract.  It  is  extrinsic  and  rather  a  personal 
privilege,  dependent  on  the  law  of  the  place  where  the 
property  lies  and  where  the  court  sits  which  is  to  decide 
the  cause.^* 


584  SUPEEME  COUBT. 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

Mr.  Story  quotes  Huberus  to  this  pointy  and   annoonceB 

the  doctrine  thus:  "Foreign  contracts  are  to  have  their 
full  effect  here,  provided  they  do  not  prejudice  the  righte 
of  our  own  country  or  its  citizens. — (Story's  Con.  Laws, 
§  324.) 

He  puts  several  cases  to  illustrate  the  rule:  "By  the 
Roman  law  and  the  law  of  Freizeland,  an  express  hypothe- 
cation of  moveable  property,  oldest  in  date,  is  entitled  to 
a  preference  or  priority  even  against  a  third  possessor. 
But  it  is  not  so  amongst  the  Batavians,  and,  therefore,  if 
upon  such  an  hypothecation  the  party  brings  a  suit  in 
Holland  against  such  third  possessor,  his  suit  will  be  re- 
jected, because  the  right  of  such  third  possessor  cannot  be 
taken  away  by  the  law  of  a  foreign  country." — lb. 

He  also  puts  another  case:  "In  Holland,  if  a  marriage 
contract  is  privately  or  secretly  made,  stipulating  that  the 
wife  shall  not  be  liable  for  debts  contracted  solely  by  the 
husband,  it  is  valid  notwithstanding  it  is  to  the  prejudice 
of  subsequent  creditors.  But,  in  Friezeland,  such  a  con- 
tract is  not  valid  unless  published,  nor  would  the  igno- 
rance of  tlie  parties  be  an  excuse  according  to  the  Roman 
law  and  equity.  If  the  husband  should  contract  debts  in 
Friezeland,  on  a  suit  there,  the  wife  would  be  held  liable 
for  a  moietv  thereof  to  tlie  Friezian  creditors,  and  could 
not  defend  herself  under  her  private  dotal  contract ;  for  the 
creditors  might  reply  that  such  a  private  dotal  contract 
had  no  effect  in  Friezeland,  because  it  was  not  published." 
Ih,,  §  325. 

Story  also  quotes  Mr.  Burge  to  the  same  point,  and 
savs:  "The  law  of  a  foreign  countrv  is  admitted  in  order 
that  the  contract  may  receive  the  effect  which  the  parties 
to  it  intended.  No  State,  however,  is  bound  to  admit  a 
foreign  law,  even,  for  this  purpose,  when  that  law  would 
contravene    its    own   positive    laws,    institutions    or   policy, 


TERM  AT  TALLAHASSEE,  1856.  585 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

which  prohibit  such  a  contract,  or  when  it  would  preju- 
dice the  rights  of  its  own  subjects."    lb,,  327. 

Mr.  Chancellor  Kent  expresses  the  principle  thus: 
*'When  the  lex  loci  contractus  and  the  lex  fori,  as  to  con- 
flicting rights  acquired  in  each,  come  in 'direct  collision, 
the  comity  of  nations  must  yield  to  the  positive  law  of  the 
land."— 2  Kent's  Com.,  461. 

In  the  case  of  the  Ohio  Insurance  Co.  vs.  Edmondson,  5 
Louis  R.,  295,  the  enforcement  of  foreign  contracts  was  very 
elaborately  and  ably  discussed  by  Mr.  Justice  Porter,  who 
came  to  the  conclusion  "that  the  contract  to  which  aid  is 
required,  should  not,  either  in  itself,  or  in  the  means  used 
to  give  it  effect,  work  an  injury  to  the  inhabitants  of  the 
country  where  it  is  attempted  to  be  enforced." 

These  citations  are  abundant  to  show,  that  it  is  the  right 
of  every  government  to  prescribe  the  rules  and  regulations 
by  which  rights  of  property  springing  out  of  a  foreign  con- 
tract may  be  enjoyed  and  shall  be  controlled,  after  and  so 
soon  as  the  particular  property  eliall  be  brought  within  its 
territorial  jurisdiction.  And  if  the  government  do  no  more 
than  to  place  the  enjoyment  and  protection  of  such  proper- 
ty upon  the  same  and  equal  footing  with  the  rights  of  res- 
ident citizens,  there  assuredly  can  exist  no  just  ground  for 
complaint.  This  brings  us  then  to  enquire,  what  would 
have  been  necessary  to  be  done  in  respect  to  a  marriage 
settlement  made  and  executed  in  this  State,  so  as  to  protect 
the  separate  estate  of  the  wife  against  liability  for  the  debts 
and  contracts  of  the  husband.  By  the  third  section  of  the 
act  of  1823,  usually  denominated  the  "Statute  of  Frauds," 
it  is  enacted  that,  "where  any  loan  of  goods  and  chattels 
shall  be  pretended  to  have  been  made  to  any  person,  with 
whom,  or  those  claiming  under  him,  possession  shall  have 
remained  for  the  space  of  five  years,  without  demand  made 
and  pursued  by  due  process  of  law,  on  the  part  of  the  pre- 


586  SUPREME  COURT. 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

tended  leader- — or  where  any  reservation  or  limitation  shall 
be  pretended  to  have  been  made,  or  a  use  or  property  by 
way  of  condition,  reversion,  remainder  or  otherwise,  in 
goods  and  chattels,  the  possession  whereof  shall  have  re- 
mained in  another  as  aforesaid,  the  same  shall  be  taken  as 
to  the  creditors  .and  purchasers  of  the  persons  aforesaid,  so 
remaining  in  possession,  to  be  fraudulent  within  this  act 
and  that  the  absolute  property  is  with  the  possessor,  unless 
such  loan,  reservation  or  limitation  of  use  or  property  were 
declared  by  will  or  deed  in  writing,  proved  and  recorded 
as  aforesaid/'  It  is  proper  to  remark  that  in  the  two  pre- 
ceding sections  of  this  act  of  1823,  as  published  in  the 
pamphlet  laws  of  that  year,  nothing  is  said  of  proving  or 
recording,  and  therefore,  the  words  "as  aforesaid"  occur- 
ring in  the  close  of  the  said  3d  section,  would  seem  to  be 
senseless  and  wholly  nugatory,  there  being  nothing  to 
which  they  may  be  made  to  refer.  This  was  doubtless  the 
effect  of  iuad>ertence  on  the  part  of  the  Legislative  Coun- 
cil, for  in  looking  to  the  laws  passed  at  the  first  session  in 
1822,  it  will  Ic  seen  that  this  section  as  enacted  in  the  act 
of  18'23,  constituted  the  3d  section  of  the  act  of  1822,  which 
was  paPFcd  witli  reference  to  "Fraudulent  Conveyances/' 
The  act  of  1822,  contained,  as  does  the  act  of  1823,  three 
Fcction?,  aiul  the  Fection  of  that  act  did  contain  a  clause  in 
reference  to  the  mode  and  manner  of  proving  and  record- 
ing certain  conveyances,  and  the  reference  embraced  in 
tlie  tliird  section  manifestly  was  applicable  to  that  clause.— 
In  the  re-eractment  of  1823,  this  particular  clause  was 
omitted,  and  consequently  the  words  "as  aforesaid''  con- 
tained in  the  3d  section  of  that  act,  are  left  without  any 
particular  application.  It  does  not  follow,  however,,  that 
tlie  act  of  proving  and  recording  as  required  by  the  statute 
is  to  he  di -penned  with,  and  the  act  thus  become  nugator3\ 
We  arc  rather  inclined  to  decide,  that  the  proving  and   re- 


TEBM  AT  TALLAHASSEE,  1866.  587 

Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

cording  under  this  section  must  conform  to  the  mode  pre- 
scribed in  the  statute  which  provides  for  the  registry  of 
deeds  or  bills  of  sale  of  personal  property. 

Having  thus  briefly  traced  the  history  of  the  3d  section 
of  the  Act  of  1823,  (Thompson's  Digest,)  the  question  re- 
cure,  how  is  the  separate  estate  of  the  wife  to  be  protected 
against  liability  for  the  debts  and  contracts  of  the  husband, 
when  the  deed  of  settlement  is  made  in  this  State?  The 
answer  is  obvious — it  must  be  recorded  in  compliance  with 
the  requisitions  of  that  section.  Five  years  is  the  time  pre- 
scribed, after  which  the  property  is  to  be  deemed  to  be  the 
property  of  the  possessor  so  as  to  render  it  liable  for  his 
debts  and  contracts,  and,  in  order  to  protect  it,  the  deed  of 
conveyance  must  be  properly  recorded  within  that  time. — 
If  such  a  case  does  not  come  under  this  section  then  there 
is  no  law  on  the  statute  book  which  requires  a  deed  of  this 
kind,  embracing  personal  property,  to  be  recorded,  and  be- 
ing good  at  common  law  between  the  parties,  it  would  be 
equally  good  against  creditors  of  the  husband. 

In  the  case  before  us,  the  deed  of  settlement  purports  to 
have  been  recorded  in  Jackson  county,  in  this  State,  the 
present  domicile  of  the  husband  and  the  ret  sitae  of  the 
property.  But,  it  is  objected  that  the  act  of  recording  is 
invalid  to  any  person  whatsoever,  and  as  especially  as  con- 
structive notice,  because  the  certificate  of  the  clerk,  which 
is  endorsed  upon  the  original  deed,  does  not  state  that  it 
was  either  acknowledged  by  the  parties  or  proved  by  a 
subscribing  witness.  It  is  unnecessary  to  decide  this  ques- 
tion, for  the  reason  that  the  statutory  prescription  of  five 
years  has  not  yet  elapsed  since  the  property  was  brought 
within  the  limits  of  this  State,  and  that  defect  (if  it  be  one) 
may  yet  be  remedied.  For  the  same  reason,  we  decline  to 
determine  whether  the  section  before  referred  to  will  ap- 
ply to  a  contract  made  in  another  State,  or   whether   it   is 


588  SUPBEME  COUBT. 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

exclusively  confined  to  contracts  originating  in  this  State. 
Upon  this  question  there  is  a  diflference  of  opinion  in  the 
court,  and  its  determination  being  unnecessary  to  the  de- 
cision of  this  case,  we  have  deemed  it  best  to  withhold  an 
expression  of  our  views  until  the  point  shall  arise. 

Let  the  judgment  be  reversed  with  costs. 
BALTZELL,  C.  J.,  delivered  the  following  opinion: 

I  am  greatly  mistaken  if  the  decision  in  the  case  of  the 
Bank  of  the  United  States  against  Elizabeth  Lee  n^d 
others,  decided  by  the  Supreme  Court  of  the  United 
States,  should  not  be  held  as  conclusive  in  this  C8se.  A 
deed  of  trust  was  made  in  Virginia,  conveying  property, 
slaves,  &c.,  in  trust  for  a  married  woman,  properly  re- 
corded there,  held  by  the  husband  and  wife  and  Sube«- 
quently  taken  to  the  District  of  Columbia,  in  Mar}  land, 
where  the  same  possession  and  holding  continued,  and 
where  the  husband  became  largely  indebted.  It  was  con- 
tended on  the  part  of  a  creditor  in  the  new  j'esidence  iliat 
the  deed,  not  having  been  recorded  in  tlie  L-istrict,  was 
void  as  against  creditors,  &c.  The  court  held  tlKit  it  was 
not;  tliat  the  statute  of  Maryland,  declaring  that  "no 
goods  and  chattels  whereof  the  vendor  shall  remain  in 
possession  shall  pass,  alter  or  change,  or  any  property 
thereof  be  transferred  to  any  purchaser,  &c.,  unless  the 
same  be  by  writing  and  acknowledged  before  a  justice  of 
the  peace  where  such  seller  shall  reside,  and  be  within 
twenty  days,  recorded  in  the  records  of  the  same  couifty," 
had  no  application. 

"The  statute,"  says  the  court,  "has  no  reference  to  a 
case  where  the  title  has  been  vested  by  the  laws  of  another 
State,  but  operates  only  on  sales,  mortgages  and  gifts 
made  in  Maryland."  They  take  notice  of  the  apparent 
ownership  of  the  husband  and  the  silence  and  acquiesc- 
ence of  the  wife,  and  yet  maintain  her  interest.    In  support 


TERM  AT  TALLAHASSEE,  1856.  589 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

of  their  decision,  they  refer  to  a  case  decided  by  tlie  court 
of  appeals  in  Maryland,  (Smith  vs.  Bruce,  3  Harris  & 
John,)  a  case  in  Tennessee,  of  Crenshaw  vs.  Anthony,  de- 
cided by  the  Supreme  Court  of  that  State — Martin  &  Gei- 
ger,  Eep.,  110-13;  Peters'  Rep.,  118. 

In  a  very  recent  case,  that  of  DeLaney  Moore,  decided 
in  1852,  the  same  question  came  before  the  same  enlight- 
ened tribunal.  "It  has  been  made  a  ground  of  defence  in 
the  answer  in  the  cOurt  below,  and  it  has  also  been  in- 
sisted on  in  argument  here,  that,  admitting  the  antenuptial 
contract  to  have  been  recorded  in  South  Carolina,  and,  in 
consequence  thereof,  to  have  been  so  operative  as  to  affect 
with  notice,  creditors  and  purchasers  within  that  State, 
yet,  that  upon  the  removal  of  the  parties,  carrying  with 
them  the  property  into  another  State  or  jurisdiction,  the 
inference  of  the  contract  for  the  protection  of  property 
would  be  wholly  destroyed,  and  the  subject  attempted  to 
be  secured  would  be  open  to  claims  by  creditors  or  pur- 
chasers subsequently  coming  into  existence.  The  position 
here  advanced  is  not  now  assumed  for  the  first  time  in  ar- 
gument in  this  court.  The  case  of  the  U.  States  Bank  vs. 
Lee,  &c.,  brought  up  directly  for  the  examination  of  this 
court  the  effect  of  a  judgment  and  execution  obtained  by 
a  subsequent  creditor  in  the  District  of  Columbia  upon 
property  found  within  that  District,  but  which  had  been 
settled  upon  the  wife  of  a  debtor  by  a  deed  executed 
and  recorded  in  Virginia,  according  to  the  laws  of  that 
State,  the  husband  and  wife  being  at  the  time  of  making 
the  instrument  inhabitants  of  the  State  of  Virginia.  The 
court  came  unhesitatingly  and  clearly  to  the  conclusion 
that  the  deed  of  settlement  recited  and  recorded  in  favor 
of  Mrs.  Lea,  protected  her  rights  in  the  subject  settled, 
against  the  judgment  of  the  subsequent  creditor  in  the  Dis- 
trict of  Columbia.     We  should  not  be  disposed  to  disturb 


590  SUPREME  COURT. 


Crowell  et  al.  vs.  Skipper — Opinion  of  Court. 

the  doctrine  laid  down  in  the  case  of  the  U.  S.  Bank  vs. 
Lee,  and  in  the  decisions  of  the  State  Courts  of  Tennessee 
and -Maryland  above  mentioned,  if  the  rights  of  the  pariies 
turned  upon  the  operation  of  the  contract  as  constituting 
notice,  or  upon  proof  of  the  knowledge  on  the  part  of  Go- 
ree,  the  purchaser,  of  the  existence  of  the  marriage  con- 
tract/'   14  How.  S.  C.  Rep.,  267. 

The  language  of  the  Supreme  Court  of  Mississippi,  in  the 
case  of  Hundley  vs.  Mount,  seems  also  appropriate.  "The 
registry  laws  of  the  several  States  do  not  operate  extra-ter- 
ritorially,  nor  do  those  of  one  State  operate  upon  convey- 
ances executed  in  .another,  unless  express  words  to  that  ef- 
fect be  inserted  in  the  statute/*   8  Sm.  &  Mar.,  399. 

The  case  under  consideration  does  not  require  cases  so 
strong  as  either  of  these.  Here  is  no  debt  contracted  after 
the  removal  to  Florida.  The  deed  of  trust  and  the  debt 
were  both  either  executed  in  Georgia  or  with  reference  to 
its  laws,  as  the  parties  contracting  the  debt  lived  there, 
and  the  property  was  there  at  the  time  of  its  creation. 

There  is  another  authority  worthy  of  attention,  being  an 
admirably  reasoned,  and  happily  expressed  opinion  of  the 
Supreme  Court  of  Xew  Hampshire,  as  to  the  effect  of  a 
mortgage  made  in  one  State — Massachusetts — attempted 
to  be  set  aside  at  the  instance  of  a  creditor  in  another  State 
New  Hampshire.  The  objection  was  to  the  want  of 
knowledge  of  the  mortgage  of  record  in  the  new  residence. 
The  court  hold  that  there  was  no  forfeiture  of  the  mortgage 
interest  by  the  removal,  and  that  the  general  laws  of  the 
State  requiring  such  instruments  to  be  recorded,  had  no 
application  to  a  conveyance  executed  abroad  when  the  par- 
ties and  property  were  both  out  of  the  State:  Offut  vs. 
Flagg,  10  New  Hampshire,  46. 

For  these  reasons  and  not  for  those  given  in  the  opinion 
just  delivered,  I  am  in  favor  of  the  reversal  of  the  judgment 
below. 


TERM  AT  TALLAHASSEE,  1856.  591 


Joe,  a  person  of  color,  vs.  The  State — Statement  of  Case. 


Joe,  a  person  of  Color,  vs.  the  State. 

1.  Incase  of  a  charge  of  poisoning,  chemical  tests  and  analysis  of  the  contents 
of  the  stomach  and  bowels  are  essential  to  the  ascertainment  of  the  truth, 
and  shoold  be  resorted  to  in  all  cases  where  there  is  no  direct  proof  of  the 
act 

2.  Symptoms  of  themselves,  without  other  circumstances,  are  not  reliable, 
and  cannot  be  regarded  as  conclusive  evidence  of  guilt. 

3.  A  new  trial  will  be  granted  where  there  is  evidence  of  symptoms  alone,  and 
those  imperfect,  no  tests  to  ascertain  the  presence  of  poison,  none  discovered 
or  traced  to  the  prisoner  and  motive  or  other  fact  proved  to  induce  the  pre- 
sumption of  guilt. 

Appeal  from  Leon  Circuit  Court. 

Joe,  the  Appellant  was  indicted  for  administering  to  a 
female  slave  named  Rebecca,  white  arsenic  or  poison. 

The  prisoner  pleaded  not  guilty,  and  on  the  tiial  t!ie  wo- 
man, Rebecca  was  examined  on  t]ie  part  of  the  Stale  who 
testified  that  whilst  she  was  cooking  breakfast  at  a  fire  cut 
of  doors  at  which  prisoner  was  also  cooking,  lie  Vac  pris- 
oner handed  her  a  small  breakfast  plate  containing  some 
beef  haslet  which  he  had  been  cooking  ard  a^kod  her  to 
eat  some.  She  eat  about  six  mouthfuls  of  it,  and  immedi- 
ately afterwards  felt  a  pain  in  the  heait.  Slie  aho  felt  as 
if  she  was  going  to  vomit,  but  could  not  then — but  felt  as 
if  she  was  going  to  die.  She  commenced  vomiting  about 
eleven  o'clock — was  blind  when  the  ^'mi^ery  was  on.*' — 
She  had  great  pain  in  the  breast,  then  all  over.  She  had 
painful  and  bloody  discharges  from  the  bowels  t'le  Fame 
day  that  she  eat  the  food  handed  her  by  the  prisoner.  S!:C 
was  friendly  with  the  prisoner.    Had  not  been  sick  before. 

Dr.  Miles  Nash  was  also  examined  for  the  State,  who  tes- 
tified that  he  was  called  in  as  a  physician  to  see  ]?ebecca 
on  the  second  day  after  she    had    taken    something.     Des- 


692  SUPBEME  COUET. 


Joe,  a  person  of  color,  vs.  The  State — Statement  of  Caae. 

cribes  the  situation  of  the  patient — frequent  vomiting  and 
discharges  from  the  bowels,  both  tinged  with  blood — legs 
partially  paralized — great  tenderness  about  the  stomach. 
Witness  is  of  opinion  that  these  effects  were  produced  by 
taking  arsenic  into  the  stomach.  The  case  exhibited  spe- 
cific symptoms  of  disease  produced  by  arsenic.  Innocent 
medicines  could  not  produce  such  effects.  There  were  no 
analytical  or  chemical  tests  applied  to  ascertain  the  pres- 
ence of  arsenic.  There  are  some  symptoms  produced  by 
aresnic  that  may  be  found  in  other  cases  where  the  disease 
proceeds  from  other  causes. 

The  prisoner  offered  several  witnesses  to  testify  to  his  for- 
mer good  disposition. 

A  verdict  of  guilty  having  been  rendered,  the  prisoner 
by  his  counsel  applied  for  a  new  trial  on  the  following 
grounds,  viz:  First  that  the  verdict  was  based  upon  vague 
and  inconclusive  evidence  as  to  the  nature  and  quality,  as 
well  as  to  the  adminiptration  of  the  substance  or  thing  al- 
leged to  be  poisonous;  the  insufficiency  consisting  in  a 
want  of  any  analytical  or  chemical  tests  applied  for  the 
purpose  of  detecting  the  presence  of  poison,  either  to  the 
matter  discharged  from  the  stomach,  or  to  the  food  remain- 
ing in  the  plate  in  which  the  food  was  offered  to  the  suf- 
ferer. 1 

2d.  The  similarity  of  the  symptoms  to  those  produced 
in  other  cases  from  remedial  agents,  and  innocent  medi- 
cines, or  from  purely  natural  causes. 

3d.  The  intent  to  kill  cannot  be  inferred  from  the  admin- 
istration of  an  article  not  proved  to  be  deadly. 

4th.  Newly  discovered  evidence  to  contradict  the  testi- 
mony of  Rebecca  as  to  the  degree  of  her  illness,  and  to 
prove  by  a  witness  that  she  herself  partook  with  impu- 
nity of  the  food  from  the  same  pot  at  the  same  time. 

5th.    The  general  good  disposition   of   prisoner,  and  the 


TEBM  AT  TALLAHASSEE,  1856.  593 

Joe,  a  person  of  color,  tb.  The  State — Argament  of  CoanseL 

absence  of  evidence  of  general  or  special  malice,  indepen- 
dently of  the  act  alleged,  and  the  want  of  evidence  of  ade- 
quate motive. 

6th.  The  absence  of  prisoner's  original  counsel,  the  coun- 
sel who  defended  the  prisoner  not  having  been  appointed 
until  the  morning  of  the  trial. 

7th.  The  status  and  condition  of  the  prisoner  whose  igno- 
rance almost  wholly  incapacitated  him  from  affording  his 
counsel  any  intelligent  or  useful  information  in  the  conduct 
of  the  case. 

The  Court  having  refused  a  new  trial,  the  prisoner  by 
his  counsel  appealed. 

A.  L.  Woodward,  for  Appellant. 

PROPOSITIONS  ON  THE  MERITS. 

I.  In  criminal  jurisprudence,  upon  the  plea  of  not 
guilty,  the  accused  being  deemed  innocent  in  the  eye  of 
the  law,  this  presumption  is  sufficient,  in  all  doubtful 
cases,  to  turn  the  scale  in  his  favor.  Neither  preponder- 
ance of  evidence,  nor  any  weight  of  preponderant  evi- 
dence, can  be  considered  proof  of  guilt,  unless  it  establish 
beyond  all  reasonable  doubt  the  fact  alleged  and  generate 
entire  belief  and  conviction  of  the  truth  of  the  charge — the 
intent  and  malice  averred. 

II.  It  is  not  enough  that  the  evidence  tends  to  show  the 
guilt  of  the  accused;  it  must  be  inconsistent  with  any  rea- 
sonable supposition  of  his  innocence. 

III.  Where  the  act,  per  se,  constitutes  the  crime,  the 
fact  alleged  as  the  corpus  delicti  must  be  proved  by  evi- 
dence amounting  to  demonstration. 

In  the  cases  of  poisoning,  the  article,  substance   or  thing 
alleged  to  be  poisonous  in  its  nature  must,  be  proved  to  be 
so,  and  the  fact  that  it  was  prepared,   exhibited  or  admin- 
istered by  the  prisoner  must  be    established    by    incontro- 


594  SUPREME  COUBT. 


Joe,  a  person  of  color,  vs.  The  State — Argument  of  CoanseL 

vertible  evidence.  Otherwise,  neither  can  malice  be  im- 
puted nor  the  intent  charged  be  inferred.  Evidence  of 
sensations  and  symptoms  which  the  patient  and  physician 
describe  is  not  sufficient  to  authorize  a  verdict  of  convic- 
tion, such  evidence  not  being,  in  this  class  of  cases,  uni- 
form and  consistent  indications  of  the  fact  alleged,  viz: 
the  presence  of  poison,  and,  therefore,  uncertain,  unreliable 
and  delusive. 

IV.  Adequate  intelligence,  knowledge  and  capacity  in 
the  accused,  possession  of  the  instrument  or  means  of  the 
crime  alleged,  opportunity,  occasion  and  facilities  for  the 
use,  some  probable  motive  to  the  consununation  of  the  act, 
or  malicious  purpose  in  its  execution,  must  be  satisfac- 
torily shown,  either  by  previous  conduct,  disposition  or  dec- 
larations evincive  of  animosity,  mischief  or  ill  will.  And 
the  good  character  of  the  prisoner,  in  reference  to  the  dis- 
position or  trait  of  character  in  issue,  and  the  good  terms 
or  friendly  relations  subsisting  between  the  parties,  are  ad- 
missible in  evidence  to  repel  the  charge  of  criminal  inten- 
tion. Authorities:  3  Greenleaf  Evidence,  p.  29,  5  29,  p. 
125,  §  135,  p.  25,  sec.  25,  Notes;  1  Starkie  on  Ev.,  p.  567-70- 
72-74;  2  Starkie  on  Ev.,  675-76,  691,  719.  Medical  au- 
thors: Hooper's  Med.  Die;  2  Dunglesson's  Med.  Die;  2 
Beck's  Medical  Jurisprudence,  pp.  276-77,  28a-8G-88; 
Diseases  similar  to  effects  of  poison,  297,  298;  Arsenic, 
368-71  to  73,  (note;)  Tartaremetic,  460-61.  Taylors  Med. 
Juris.,  pp.  44,  45,  79,  80,  114-15-17,  131-32,  159-60. 
Law  Library,  vol.  33 :  Wills  on  Circumstantial  Evidence, 
pp.  20  io  22,  27  to  30,  32,  68,  69,  70  to  81;  Cases  on  Poi- 
soning, 87  to  96;    Wharton's  Criminal  Law,  389-90   to   93. 

PROrOSITIONS  ON  NEW  TRIAL. 

1.  A  new  trial  will  be  granted  if  the  verdict  be  against 
evidence  on  any  material  point,  or  be  not  based  upon  suf- 
ficcnt  exidence    to    sustain    it,    especially    where    the   evi- 


TERM  AT  TALLAHASSEE,  1856.  595 

Joe,  a  person  of  color,  vs.  The  State — Argument  of  Counsel. 

dence  on  which  the  verdict  is  founded  is  not  the  species  or 
degree  of  evidence  which  the  law  in  such  a  case  would  re- 
quire. 

II.  New  trial  will  be  granted  on  the  ground  of  newly 
discovered  evidence,  where  such  was  previously  unknown, 
if  such  be  material  to  the  issue  or  would  probably  have 
had  an  influence  on  the  verdict,  either  by  proving  distinct 
contradictory  facts,  part  of  the  res  gestae,  or  by  otherwise 
rendering  doubtful  the  evidence  adduced  by  the  State  on 
the  trial. 

III.  New  trial  will  be  granted  for  error  in  the  instruc- 
tions of  the  court,  whether  in  reference  to  the  rules  of  evi- 
dence or  the  law  upon  the  suhjeci-matier  of  the  case;  and 

^  this,  though  the  instructions  be  strictly  correct  so  far  as 
given,  yet,  if  they  be  not  sufficiently  definite,  explicit  and 
full,  or  tend  to  create  an  erroneous  impression  on  a  mate- 
rial point,  or  to  mislead  tlie  jury,  or  to  induce  misappre- 
hension or  mistake  and  a  wrong  or  false  estimate  of  the 
comparative  weight  and  value  of  the  evidence. 

IV.  AYhere  proof  of  the  cor  pits  delicti  consists  entirely 
of  circumstantial  evidence,  everv  material  circumstance 
must  be  satisfactorily  established,  no  inference  being  legi- 
timately dedueable  from  such  evidence,  unless  the  circum- 
stances to  be  either  separately  or  concurrently  conclusive, 
and  inferences  such  as  the  evidence  may  fully  authorize. 

V.  The  trial  must  have  been  deliberate,  full  and  fair — 
not  pressed,  urgent,  hurried  or  imperfect.  There  must 
have  been  ample  time  for  the  preparation  of  the  defence, 
both  in  ascertaining  evidence,  summoning  witnesses  and 
inspecting  the  venire,  and  for  the  preparation  of  counsel 
on  evidence  and  law,  especially  where,  from  the  social 
status  and  condition  of  the  prisoner  and  the  position  of  his 
counsel,  newly  appointed  by  the  court,  no  want  of  dili- 
gence could,  under  the  circumstances,  be  reasonably  attri- 
buted to  either. 


596  SUPREME  COURT. 


Joe,  a  person  of  color,  vs.  The  State — Argument  of  CounseL 

VI.  Courts  are  more  liberal  in  granting  new  trials  in 
criminal  than  in  civil  causes,  both  from  the  vast  difference 
of  the  rules  of  evidence  in  comparative  weight  and  de- 
gree in  the  respective  forums,  and  from  the  difference  in 
the  importance  and  value  of  the  stake  involved,  which  is 
immeasurable  both  to  the  prisoner  and  the  country.  Au- 
thorities: Graham  on  New  Trial;  Wash.  Cir.  Ct.  Rep.; 
Hammond  vs.  The  State,  5  Strobh.  Law,  91,  100;  Bedford 
vs.  The  State,  5  Humph.,  55*^;  Copeland  vs.  The  State,  7 
Humph,  481-82-83;  Cochrane  vs.  The  State,  lb.  544-45- 
46-47;  Troxdale  vs.  The  State,  9  Hump.,  411;  Garland 
vs.  The  State,  2  Swann,  18,  20,  21,  22,  26;  Nelson  m 
The  State,  lb.,  261-62 ;  The  State  vs.  Dow,  19  Conn.,  388- 
91-92-93 ;  8  S.  &  M.,  401,  417. 

ABGUMENT. 

The  indictment  rests  on  three  predicates,  upon  eveiy 
one  of  which  the  State  is  bound  to  offer  a  satisfactory  affir- 
mative solution. 

I.  That  the  article,  substance  or  thing  alleged  to  have 
been  administered  was  of  a  poisonous,  deadly  and  destruc- 
tive nature. 

II.  That  it  was  administered  by  the  prisoner. 

III.  That  it  was  administered  by  him,  knowing  its  na- 
ture or  quality,  "with  intent  to  kill." 

To  controvert  these  premises,  the  plaintiff  in  error  as- 
sumes these  general  propositions,  viz: 

I.  That  the  poisonous,  deadly  and  destructive  nature  of 
tlie  article  or  substance  alleged  to  have  been  administered 
was  not  satis factorilv  established  in  evidence. 

II.  That  the  ejfect  which  the  charge  imputes  not  having 
been  produced,  the  intention  cannot  be  inferred  without 
sufficient  evidence  of  the  prisoner's  knowledge  of  the  poi- 
sonous, deadly  and  destructive  nature  of  the  article  or  sub* 


TERM  AT  TALLAHASSEE,  1856.  597 

Joe,  a  person  of  color,  vs.  The  State — Argument  of  Counsel. 

'~ II  I  Ml.. 

stance  alleged  to  have  been  administered,  the  effects  or 
consequences  proved  not  affording  a  conclusive  presump- 
tion of  such  knowledge. 

III.  That,  therefore,  if  the  article  or  substance  adminis- 
tered were  poisonous  in  its  nature,  it  may  be  presumed  to 
have  been  given  in  ignorance  of  such  quality,  and  thus  the 
criminal  intention  is  repelled. 

IV.  That  even  if  the  prisoner  was  aware  of  the  poison- 
ous quality  of  the  article,  it  was  administered  in  such  an 
infinitesimal  dose  that  a   fatal  purpose  &nnot  be  presumed. 

V.  That  an  innocent  medicine — tarteremetic  for  in- 
stance— ^would  produce  similar  symptoms  or  effects,  and 
thus  a  presumptive  criminal  intention  is  negatived. 

VI.  That  the  food  itself  from  its  quality,  condition  and 
mode  of  cooking,  might  or  probably  would  produce  like  ef- 
fects, and  may  therefore  be  assigned  as  the  sole  and  exclu- 
sive existing  cause. 

VII.  That  the  entire  absence  of  any  probable  motive, 
the  good  character  of  the  prisoner  as  to  the  disposition  or 
trait  in  issue,  and  the  good  terms  subsisting  between  the 
parties,  negative  any  presumption  against  him  in  the  ab- 
sence of  proof  of  the  corpus  delicti. 

Upon  these  propositions  the  counsel  contended  that  ana- 
lytical or  chemical  tests  afford  the  only  safe,  sufficient,  sat- 
isfactory and  reliable  evidence  in  cases  of  poisoning,  and 
that  evidence  from  sensations  and  symptoms  in  this  class 
of  cases,  being  assimilated  to  those  produced  and  exhibited 
by  the  administration  of  innocent  medicines,  or  from  other 
and  simply  natural  causes,  are  apt  to  be  mistaken  and  con- 
founded. Therefore,  where  symptoms  exist  alike  in  differ- 
ent diseases,  they  cannot  consistently  and  beyond  reasona- 
ble doubt  be  asserted  or  assumed  to  be  distinctive  of,  or 
peculiar,  or  exclusive  to  any  particular  one. 

And  finally,  that  where  the  mechanical  coincidences    or 
40 


598  SUPREME  COURT. 


Joe,  a  person  of  color,  vs.  The  State — ^Argument  of  ComiaeL 

physical  and  scientific  evidences  are  defective,  these  being 
essential  to,  and  constituting  proof  of  the  corpus  detkU. 
they  cannot  be  supplied  by  moral  coincidences  alone, 
these  being  merely  corroborative  and  supplemental  in  their 
character  and  legitimate  effects;  and  where  the  moral  evi- 
dence is  itself  defective  there  is  no  basis  remaining  cm 
which  a  verdict  of  conviction  can  be  sustained. 

The  coimsel  also  contends,  that  the  instructions  of  the 
court  are  exceptionable  and  defective,  not  being  suflBcient- 
ly  explicit  and  full,  and  in  requiring  exculpatory  evidence 
to  he  exclusively  adduced  by  the  prisoner,  omitting  the  im- 
portant addenda  and  modification,  that  it  may  arise  or  be 
deduced  from  the  evidence  on  the  part  of  the  State.  And 
farther,  that  the  instructions  are  also  exceptionable  in  ru- 
ling that  the  quantity  and  quality  of  the  article  or  sub- 
stance, alleged  to  be  poisonous,  is  immaterial  in  evidence, 
or  not  necessary  to  be  proved,  for  as  the  counsel  contends, 
this  rule  applies  only  in  cases  where  the  effect  is  fatal  in 
its  termination,  and  that  such  a  rule  is  of  no  force  in  a  case 
where  the  sufferer  survives.  In  the  one  case  the  effect  be- 
ing produced,  it  may  be  unnecessary  to  inquire  into  the 
extent  or  degree  of  its  cause,  wliereas,  in  the  other  case,  ex. 
gr.,  the  one  pending  nature,  quality,  extent  or  degree 
of  the  cause  of  certain  effects  and  certain  consequences,  is 
the  very  question  to  be  solved,  the  main  issue  presented, 
and  of  course  the  exclusive  subject  matter  of  judicial  inies- 
ligation,  for  it  is  upon  this,  that  the  question  of  malice  and 
intention  depend,  and  these  are  of  the  essence  of  the  crime. 

And  lastly,  that  the  social  status  or  grade,  and  the  friend- 
less condition,  as  well  as  the  ignorance  and  mental  infirmi- 
ty of  the  prisoner,  and  the  peculiar  circumstances  under 
which  the  trial  took  place,  are  such,  that  a  new  trial 
ought  to  be  awarded. 


TERM  AT  TALLAHASSEE,  1856.  599 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

The  Attorney  General  for  the  State. 

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

This  is  an  appeal  from  a  conviction  and  sentence  of 
leath,  passed  upon  the  prisoner  Joe  on  a  charge  of  having 
idministered  poison  and  white  arsenic  to  a  negro  woman, 
Rebecca.  She  did  not  die  from  the  alleged  effects,  but  is 
jxamined  as  the  only  witness  to  the  facts  of  the  case,  ex- 
cepting the  medical  attendant. 

But  little  complaint  is  made  of  the  instructions  given  to 
;he  jury,  which  seem  to  have  been  drawn  with  exceeding 
jare  and  caution  on  the  part  of  the  Judge  below,  and  are, 
on  the  whole,  liberal  to  the  prisoner.  Reliance  is  placed 
n  this  court,  on  the  motion  for  a  new  trial  presented  to 
ind  overruled  by  the  court  below,  and  the  broad  position 
assumed  that  the  facts  of  the  case  do  not  establish  a  case 
:>{  guilt. 

It  is  rather  a  singular  circumstance  that  new  trials  were 
aever  granted  until  within  a  recent  period  in  England,  in 
sases  of  felony,  this  object  being  in  some  degree  attained 
by  the  Judge  reversing  a  point  of  difficulty  for  the  decision 
3f  the  court  above.  The  courts  of  this  country  have  main- 
tained a  different  practice,  even  granting  a  new  trial 
where  the  case  was  either  against  the  weight  of  evidence 
or  not  sustained  by  it.  Appeals  are  not  often  allowed  in 
criminal  cases,  and  if  permitted,  the  assignment  of  error 
is  usually  confined  to  questions  of  law.  In  this  State,  the 
appeal  is  not  only  allowed  but  the  duty  is  imposed  upon 
the  court  of  examining  into  the  correctness  of  the  ruling  as 
to  the  refusal  of  a  new  trial. 

The  crime  of  poisoning  is  of  so  shocking  a  character — «o 
revolting  to  every  sentiment  of  our  nature — so  far  exceed- 
ing all  others  in  atrocity — that  we  have  not  been  able  to 
3rield  a  willing  ear  to  the  accusation,  or  to  admit  it  with 


Y^^r   to, 


-"%*r-.::» 


r^'''''''^.oner: 


'ate  e^ceV^rr  an*  ^^^^e  r^'^^'W^^-i  ^' 


vf^t^  :T^^  ^:i:^ 


iftttV^e^ 


stance. 


tYvat 
at  t^e 


be 


aUeg 


edto 


18  i«^"^ 


to 


be  V 


TON 


,6^5 


nec<^^^-^'^.  ;;^^  ^«  <=^^^' 


cout 

to   "1^ 

.    viit^ 


m  tbe 


qua 


Aity: 


q^^^'!?!  ...clu^'^l"  ^^J;  It  tbe  q' 


eJi 


oi  t\ie 


tbe 


vety 


itttse 


l]ie 


ccvlai 

ait* 
we 


a«a  0^  ^'':   -.t  -1^  -? 


.on 


t\us, 


lot 


ate 


'^     .tion  ".-^f-^^^^t  t\ie 


jcpcn" 


t\\e  F'     ,    Yoo\^  V 


ty  ^^ 


s^ 


o\vi 


g\vt 


to^e 


600  SUPBEME  COUET. 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

ready  facility.  If  true,  the  punishment  of  the  law  would 
not  be  by  any  means  too  severe.  With  a  due  sense  of 
its  importance,  as  well  to  the  public  as  to  the  prisoner,  not 
at  all  diminished  by  the  fact  that  the  individual  impli- 
cated is  a  free  man  of  color,  we  approach  the  consideration 
of  the  subject. 

The  cases  to  be  found  in  the  books,  both  medical  and 
legal,  exhibit  abundant  evidence  of  the  absence  of  proper 
skill  and  acquaintance  with  the  subject,  creating  the  fear- 
ful impression  that  many,  very  many,  innocent  persons 
have  been  sacrificed  to  prejudice  and  ignorance  rather 
than  to  actual  guilt. 

Modern  science  with  its  pervading  power  has  removed 
this  diflBculty  by  substituting  certainty  in  place  of  the  ob- 
scurity that  has  so  long  prevailed.  To  the  philosopher,  the 
man  of  science,  the  physician,  the  world  is  indebted  for 
important  aid  in  judicial  investigations  through  means  of 
cliemical  tests  applied  to  matter  ejected  from  the  stomach 
and  bowels  and  to  the  different  parts  of  the  body.  A  re-, 
markable  instance  of  the  certainty  attending  such  an  ex- 
amination is  given  in  the  Edinborough  Medical  Journal  of 
Science  as  having  occurred  in  Paris.  The  head,  trunk  and 
two  lower  extremities  of  a  man  were  found  in  different  and 
distant  parts  of  the  city,  and  were  subjected  to  the  scrutiny 
and  examination  of  pliysicians,  wlio,  applying  to  them  the 
results  of  science  and  skill,  came  to  the  conclusion  that  the 
individual  was  killed  during  sleep — a  sleep  induced  by 
artificial  means,  that  this  was  the  result  of  drunkenness  or 
the  effect  of  some  narcotic;  that  the  throat  must  have  been 
cut  and  an  immense  quantity  of  blood  lost — that  the  decap- 
itation and  cutting  off  the  limbs  must  have  been  imme- 
diately performed  by  a  person  accustomed  to  such  opera- 
tions. That  the  instrument  was  sharp  edged  and  long, 
that  the  person  committing  the  act  must  have  been  a  vigo- 


TERM  AT  TALLAHASSEE,  1856.  601 

Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

roufi  person,  and  the  incisions  made  by  the  same  hand,  but 
the  murderer  became  nervous  at  the  close  of  the  deed. 

They  then  examined  the  internal  parts  and  came  to  the 
conclusion  that  the  deceased  labored  under  no  disease.  In 
examining  the  contents  of  the  stomach,  they  found  a  small 
quantity  of  alcohol  and  prussic  acid.  A  few  weeks  after- 
wards, the  murderer  delivered  himself  up  and  confessed, 
confirming  in  a  remarkable  degree  these  various  opinions 
of  the  Physicians.    Wills  on  Circumstantial  Ev.,  244. 

The  German  and  French  authors  on  medical  jurispru- 
dence, hold  that  poisoning  can  never  be  completely  estab- 
lished unless  the  particular  poison  be  found;  a  doctrine 
not  adopted  in  English  jurisprudence.    Wills,  215,  16. 

Yet  this  accomplished  author  says — "Upon  general 
principles  it  cannot  be  doubted  that  Courts  of  Law  would 
require  chemical  evidence  of  the  poisoning  whenever  it 
was  attainable,  and  it  is  believed  that  no  modern  case  of 
satisfactory  conviction  can  be  adduced  where  there  has  not 
been  such  evidence,  or  in  its  absence,  the  equivalent  of 
confession."    Wills,  221. 

"The  most  decisive  and  satisfactory  evidence  of  poison- 
ing, says  this  author,  is  the  discovery  by  chemical  means 
of  the  existence  of  poison  in  the  body,  in  the  matter 
ejected  from  the  stomach,  or  in  the  food  or  drinks  of  which 
the  sufferer  has  partaken."    Wills,  215. 

"It  is  even  maintained,  that  conviction  cannot  be  con- 
sidered satisfactory  wliere  circumstances  of  suspicion  even, 
are  blended  with  the  scientific  testimonv,  unless  the  crime 
be  established  by  adequate  evidence  independently  of 
moral  circumstances."    Wills,  233 — 4. 

In  the  case  before  us  there  was  no  examination  of  any 
kind  made.  The  contents  of  the  stomach  and  bowels  were 
not  even  noticed  until  a  day  afterwards;  and  this  material 
part    of    evidence,    so    important    to    the  ascertainment  of 


602  SUPREME  COUBT. 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

truth,  is    wholly    wanting.     In    the    symptoms,    and   these 
alone,  is  there  evidence  of  guilt. 

Before  noticing  these,  it  is  proper  to  advert  to  the  weight 
and  consequence  assigned  to  such  evidence  in  books  of 
authority,  legal  as  well  as  medical.  "  Medical  writers  ap- 
pear to  be  agreed  in  opinion  that  the  symptoms  and  past 
mortem  examination,  which  are  commonly  incident  to 
cases  of  poisonings,  arc  such  as  in  general  may  be  pro- 
duced by  other  causes."  Wills,  211;  VATiarton's  Criminal 
Law,  3  ed.,  391. 

The  Penny  Cyclopedia,  in  an  elaborate  article,  contain- 
ing a  review  of  the  subjects,  says:  "It  is  evident  from 
these  circumstances,  that  in  a  fatal  case  of  suspected  poi- 
soning by  an  irritant  subject,  it  will  seldom  be  possible  to 
decide  upon  the  evidence  of  the  symptoms  alone.  WTien 
poison  has  actually  been  taken,  the  symptoms  are  some- 
times so  modified  by  circumstances  peculiar  to  the  case, 
that,  even  where  they  have  been  carefully  observed,  much 
doubt  has  remained  respecting  their  cause;  and,  on  the 
other  hand,  the  symptoms  of  naturally  excited  disease 
often  too  closely  resemble  those  of  poison  to  permit  a  posi- 
tive conclusion  being  arrived  at."    Vol.  18,  p.  307. 

"The  circumstances  that  usually  first  excite  suspicion 
of  poison  having  been  taken  are,  that  the  person  affected 
is  suddenly  attacked  by  symptoms  of  severe  illness,  which 
come  on  soon  after  eating  or  drinking,  without  any  pre- 
monitory indications,  wliich  regularly  increase  in  severity 
without  undergoing  any  important  change  in  their  charac- 
ter, and  which  rapidly  prove  fatal.  All  these,  however, 
are  far  from  affording  sufficient  evidence  of  poisoning. 
Suddenness  of  attack  is  common  to  manv  disorders,  as 
cholera,  (whether  ordinary  or  Asiatic,)  plague,  perforating 
ulceration  of  the  digestive  canal,  appoplexy  and  epilepsy; 
and    even    in    some   cases   of   fever,  the  premonitory  symp- 


TERM  AT  TALLAHASSEE,  1856.  603 


Joe,  a  person  of  color,  vs.  The  State — Opialon  of  Court. 

toms  are  too  slight  to  attract  the  attention  of  the  patient." 
Ibid,  307. 

Wliilst,  then,  symptoms,  as  a  general  rule,  may  not  be 
relied  upon  as  giving  satisfactory  evidence  of  the  use  or 
presence  of  poison,  the  question  yet  arises,  may  not  symp- 
toms, in  the  specific  case  of  poisoning  by  arsenic  by  irri- 
tent  subjects,  when  applied  to  those  proved  to  exist  in  the 
case  under  consideration,  sustain  the  conviction  and  estab- 
lish the  guilt  of  the  prisoner? 

It  is  much  to  be  regretted,  that  in  the  solution  of  these 
important  questions  we  have  not  the  aid  of  the  intelligent 
physicians  who  gave  to  the  jury  a  description  of  the  symp- 
toms usual  in  cases  of  poisoning  by  arsenic,  their  state- 
ment not  being  fully  incorporated  in  the  record,  and  only 
a  few  symptoms  described  by  one  of  them;  and  thus  we 
are  necessarily  thrown  upon  our  own  imperfect  knowledge 
and  researches  in  prosecuting  our  investigation,  upon  the 
authorities  cited  in  the  brief  of  the  prisoner's  counsel,  the 
positions  assumed  and  the  views  presented  in  his  argu- 
ment. It  is  true  the  attending  physician  expresses  his 
opinion  that  the  case  exhibited  specific  symptoms  of  poi- 
soning by  arsenic,  yet,  with  all  respect  for  his  intelligence 
and  learning,  we  should  not  deem  that  we  had  discharged 
our  duty  in  relying  upon  that  alone  without  a  more  ex- 
tended examination.  It  must  be  rcmemlKjred,  too,  that 
his  evidence  is  necessarily  imperfect,  as  he  saw  none  of 
the  8}Tnptoms  of  the  first  day,  nor  noticed  the  appearances 
of  matter  ejected  from  the  stomach  and  bowels  at  this  pe- 
riod most  important  and  interesting  of  all  others  to  the 
true  understanding  of  the  subject.  The  witness  speaks 
also  of  symptoms  not  specified  in  the  record  from  which 
we  infer  that  some,  possibly  essential  to  the  formation  of  a 
right  judgment,  are  omitted.  If  this  be  so,  it  is  deeply  to 
be  regretted,  as  the   court  must  decide   the   case   upon   the 


604  SUPREME  COURT. 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Conrt 

facts  set  forth  in  the  record,  and  are  not  permitted  to  pre- 
sume any  not  presented. 

Let  us  now  refer  to  the  facts  developed  by  the  evidence 
in  the  case  under  consideration.  The  prisoner  and  the  per- 
son complaining  of  being  poisoned,  a  slave  named  Rebecca, 
were  at  work  at  Mrs.  Gerards,  in  Tallahassee,  both  engaged 
in  getting  breakfast —  the  woman  for  the  white  family— 
The  prisoner  handed  Rebecca  some  cow  haslet  which  he 
had  been  cooking  in  an  iron  pot,  asking  her  to  eat;  she 
ate  about  six  mouths  full  and  immediately  felt  a  pain  in 
the  heart ;  can't  express  the  rest  of  her  feelings ;  felt  as  if 
she  wanted  to  throw  up  but  could  not  just  then.  Com- 
menced vomiting  about  11  o'clock  of  that  day;  was  blind 
when  the  misery  was  on,  had  great  pain  in  the  breast,  then 
all  over.  For  two  or  three  months  was  unable  to  work 
much  at  anything,  had  not  been  sick  before  eating  the  has- 
let, felt  effects  immediately  after  eating,  felt  as  if  going  to 
die;  had  painful  and  bloody  discharges."  This  is  the  state- 
ment of  Rebecca  herself. 

A  pliysician  was  not  called  in  until  the  second  day;  he 
speaks  of  the  appearance  of  the  patient  as  follows :  "  There 
was  frequent  vomiting  and  discharges  from  the  bowels, 
both  tinged  with  blood;  legs  partially  paralized,  gwat 
tenderness  about  the  stomach,  patient  a  week  under  treat- 
ment." 

Do  these  facts  as  detailed  by  the  witnesses,  of  themselves 
afford  sufficient  and  satisfactory  evidence  of  poisoning,  and 
are  they  such  as  to  remove  all  reasonable  doubt  that  pois- 
oning and  nothing  else,  produced  the  symptoms  exhibited? 
Could  not  the  animal  food  itself,  especially  this  particular 
kind,  in  any  Fupposable  case  of  imperfect  cookery,  the  arti- 
cle itself  perhaps  unfit  to  be  eaten,  or  in  a  bad  state  of 
preservation,  possibly  eaten  in  a  disturbed  condition  of  the 
stomach    have    produced     such    effects?    Could    they    not 


'  TiLAHASSEE,  1856.  607 


Opinion  of  Court. 


I  •> 


'ho.  case    bc- 
•listinc- 

:»y 

i  SOS. 

.    few, 

i»rcssi()n 

\    hv    ail- 

lis  ])artic-u- 

■  \t    proceed    to 
i  instances  in    the 
to  the  accusation. 
ut/'  savs  tlie    writer 
■11    circumstantial  evi- 
in    important    and    well- 
to   crime,    declarations 
lions  for  tlic  commission  of 
of  crime,  refusal  to  account 
...  or  unsatisfactory   explanation 
>li     evidence,    indirectly     confes- 

■  ill    a    party    charged  with  crime  has 

.instances  which  commonly  o})erate    as 

■unit    tlie    act  in  question;    that    he  has 

!'ic  operation  of    those    inducements  as    to 

■  I  the    disposition    to   commit    the  particular 

■  has  possessed    the  requisite  means  and    op- 

•  i"  effecting   the  object  of  liis  wishes;  that  re- 

•    the   commission   of  the   act  in  question  has   be- 

-"•ssed  of  the  fruits    or    other   consecjuential  advan- 

:    the  crime;    if  he   be  identified  with  the   corpus  de- 

V  any  conclusive  median ical  circumstances  as    by    the 

ssion    of    lii.s    footsteps,  &c.,  if  there  be  relevant  ap- 


606  SUPREME  COURT. 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

■'"  '  '  ^■"'  ■■—■■■■■■  ■■  ■»■  ^^ 

the  act  of  swallowing.''     Penny  Cyclopedia,  Poison,  307. 

Beck  represents  the  symptoms  of  poisoning  by  arsenic 
"so  remarkable  as  not  to  be  confounded  with  natural  dis- 
ease." He  states  them  to  be  "marks  of  irritation  extend- 
ing from  tlie  throat  to  the  rectum,  the  difficulty  in  swallow- 
ing, the  pains  of  the  bladder  in  passing  water,  the  affec- 
tions of  the  genitals,  the  vomiting  and  bloody  diarrhea,  ex- 
treme weakness."    2  Beck,  417. 

The  same  writer  gives  us  the  earliest  symptoms,  sickness 
or  faintness,  succeeded  by  pain  in  the  region  of  the  stom- 
ach, most  commonly  of  a  burning  kind,  much  aggravated 
by  pressure;  violent  fits  of  vomiting  and  retching,  with  a 
dryness,  heat  and  tightness  in  the  throat,  creating  an  in- 
cessant desire  for  drink,  hoarseness  and  difficulty  of  speech, 
matter  vomited  greenish  or  yellowish,  but  sometimes 
streaked  or  mixed  with  blood.  The  burning  of  the  throat 
not  always  present,  sometimes  so  severe  as  to  be  attended 
with  fits  of  suffocation  and  convulsive  vomiting.  Diarrhea 
generally,  not  always  — when  this  is  severe  the  rectum  is 
excoriated  and  burning  heat  felt  there  and  along  the  whole 
of  the  alimentary  canal;  mouth  and  lips  inflamed  and  pre- 
sent dark  specks  and  blisters,  lungs  affected,  shortness  of 
breatli,  tightness  across  tlie  chest  and  in  a  few  cases  actual 
inflammation,  &c.,  &c.,  p.  370. 

Whore  life  is  prolonged  several  days  or  saved,  the  early 
symptoms  are  of  the  inflammatory  variety,  as  just  de- 
scribed. The  subsequent  ones  are  referrable  to  nervous 
irritation.  They  vary  from  coma  to  an  imperfect  palsy  of 
the  arms  and  legs,  and  between  these  extremes  are  ob- 
served epileptic  fits  or  tetanus. 

Among  occasional  results  where  life  is  saved  are  irrita- 
bility of  the  stomach,  attended  with  constant  vomiting  of 
food,  loss  of  the  hair  and  disquamation  of  the  cuticle,  sore- 
ness and  inflammation  of  the  eyes,"  &c.    Ibid,  372. 


TERM  AT  TALLAHASSEE,  1856.  607 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

It  will  be  clearly  perceived,  we  think,  that  the  case  be- 
fore us  is  defective  in  many  of  the  most  prominent  distinc- 
tive symptoms  described  by  the  authors  above  quoted  as 
most  reliable  in  discriminating  cases  of  poisoning  by 
arsenic  from  those  of  disease  produced  by  other  causes. 
The  symptoms  exhibited  in  the  present  case  are  very  few, 
and  by  no  means  create  the  clear  and  distinct  impression 
upon  the  mind  which  is  made  by  those  described  by  au- 
thors on  medical  jurisprudence .  as  peculiar  to  this  particu- 
lar kind  of  poisoning. 

Passing  this  branch  of  the  subject,  we  next  proceed  to 
the  enquiry  whether  there  are  other  circumstances  in  the 
case  regarded  as  giving  weight  and  force  to  the  accusation. 
"  There  are  particulars  of  moral  conduct,"  says  the  writer 
so  often  quoted,  that  **by  writers  on  circumstantial  evi- 
dence are  considered  as  leading  to  important  and  well- 
grounded  presumptions  as  motives  to  crime,  declarations 
indicative  of  intention,  preparations  for  the  commission  of 
crime,  possession  of  the  fruits  of  crime,  refusal  to  a(*count 
for  appearances  of  suspicion,  or  unsatisfactory  explanation 
of  such  appearances  with  evidence,  indirectly  confes- 
sional."   Wills,  55. 

"  If  it  be  proved  that  a  party  charged  with  crime  has 
been  placed  in  circumstances  which  commonly  operate  as 
inducements  to  commit  the  act  in  question;  that  he  has 
80  far  yielded  to  the  operation  of  those  inducements  as  to 
have  manifested  the  disposition  to  commit  the  particular 
crime;  that  he  has  possessed  the  requisite  means  and  op- 
portunities of  effecting  the  object  of  his  wishes;  that  re- 
cently after  the  commission  of  the  act  in  question  has  be- 
come possessed  of  the  fruits  or  other  consequential  advan- 
tages of  the  crime;  if  he  be  identified  with  the  corpus  de- 
licti by  any  conclusive  mechanical  circumstances  as  by  the 
impression    of    his    footsteps,  &c.,  if  there  be  relevant  ap- 


608  SUPBEME  COURT. 


Joe,  a  person  of  color,  vs.  The  State — Opinion  of  Court. 

pearances  of  suspicion  connected  with  his  conduct,  4c., 
such  as  he  might  reasonably  be  presumed  to  be  able  to 
account  for,  but  which  he  will  not  and  cannot  explain, 
&c.,  &c.,  the  concurrence  of  all  or  many  of  these  urgent 
circumstances  naturally,  reasonably  and  satisfactorily  es- 
tablishes the  moral  certainty  of  his  personal  guilt,  if  not 
with  the  same  degree  of  assurance  as  if  he  had  been  seen 
to  commit  the  deed,  at  least  with  all  the  assurance  which 
the  nature  of  the  case  and  the  vast  majority  of  human  ac- 
tions admit.''    Wills,  250. 

Now,  this  part  of  the  case  is  not  only  deficient  and 
wanting  in  everything  to  create  a  presumption  unfavor- 
able to  the  prisoner,  but  the  proof  of  the  person  alleged  to 
be  poisoned  removes  and  prevents  a  supposition  of  this 
even.  "She  and  the  prisoner  never  had  a  falling  out,  and 
were  always  on  good  terms."  She  was  a  slave,  too;  had  no 
money  to  tempt  her  destruction.  There  was  nothing  to 
gain — no  fear  of  loss. 

Having  thus  considered  the  facts  of  the  case  and  the 
law  connected  therewith,  it  mav  aid  in  the  consideration 
of  capes  depending  upon  circumstantial  evidence  to  refer 
to  the  rules  and  maxims  which  philosophic  wisdom  and 
judicial  experience  liave  laid  down  as  safeguards  of  truth 
and  justice  with  respect  to  evidence  in  general,  and  which 
apply  with  peculiar  force  to  cases  of  the  present  character. 

"The  facts  ^alleged  as  the  basis  of  the  inference  must  be 
strictly  connected  with  the  factum  prohandum/'  Will?, 
177. 

"The  circumstances  proved  must  lead  to  and  establish 
to  a  moral  certainty  the  particular  hypothesis  assigned,  to 
account  for  them.  In  other  words,  the  facts  must  be  of 
such  a  nature  that  their  existence  is  absolutely  inconsis- 
tent with  the  non-existence    of    their    alleged  moral  cause 


TEEM  AT  TALLAHASSEE,  1856.  609 

Joe,  a  person  of  color,  vs.  The  State —Opinion  of  Court. 

and  tliat  tliey  cannot  be  explained  upon  any  other  reason- 
able explanation."    Ibid,  187. 

"The  conchi5?ion  drawn  from  the  premises  assigned  as  its 
basis,  must  satisfactorily  explain  and  account  for  all  the 
facts  to  the  exclusion  of  every  other  reasonable  solution." 
Ibid  187. 

"If  the  circumstances  are  equally  capable  of  solution  upon 
the  hypothesis  of  innocence,  as  upon  that  of  guilt  they  ought 
to  receive  a  favorable  construction,  and  to  be  discarded  as 
presumptions  of  guilt."   Ibid  187,-8. 

"If  there  be  any  reasonable  doubt  as  to  the  proof  of  the 
corpus  delicti,  or  as  to  the  reality  of  the  connection  of  the 
circumstances  of  evidence  with  the  factum  probandum, 
or  as  to  the  proper  conclusion  to  be  drawn  from  these  cir- 
cumstances, it  is  safer  and  therefore  better  to  err  in  ac- 
quitting than  in  convicting."  Ibid  189,  190. 

These  rules  are  not  needed  to  the  conclusion  we  have  ar- 
rived at  in  the  present  case. 

It  has  been  seen  very  clearly,  that  there  is  no  direct  proof 
of  poison  traced  to  the  prisoner  from  the  beginning  to  the 
end  of  this  transaction — none  of  the  fact  of  poisoning.  That 
the  indirect  proof  considered  satisfactory  in  such  cases — 
that  of  chemical  analysis  and  test-  applied  to  the  matter 
ejected  through  the  influences  of  the  poison  from  the  stom- 
ach and  bowels,  and  of  all  moral  circumstances  is  wanting. 
That  the  only  fact  relied  upon,  that  of  symptoms  admitted 
in  cases  of  this  nature  to  be  unsatisfactory  and  unreliable, 
in  this  ca^^e  is  particularly  defective  and  unsatisfactory. — 
Where  then  is  there  ground  for  conviction  ?  Without 
saying  that  there  is  none,  we  are  clearly  of  opinion  that 
there  is  not  sufficient  to  justify  the  conviction,  and  that  the 
prisoner  is  rightfully  entitled  to  a  new  trial. 

The  judgment  will  be  reversed  and  the  cause  remanded 
for  a  new  trial  and  other  proceedings  to  be  had. 


610  SUPKEME  COURT. 


Gotten  et  al.  vs.  Co.  Commissioners  of  Leon  Co.  et  al — Statement  of  Caie. 


Frederick  R.  Gotten  and  William  G.  Ponder,  Appel- 
lants, vs.  The  County  Commissioners  of  Leon  County, 
ET  AL.  Appellees. 

1.  Under  our  State  Constitution  it  is  the  appropriate  function  of  the  Judicial 
department  to  decide  whether  a  statute  of  the  Lesrlslature,  be  or  not  c<m- 
stitutional :  but  in  deference  to  a  co-ordinate  branch  of  the  Government  it 
ought  never  to  nullify  a  statute,  except  in  a  case  free  from  doubt. 

2.  In  proceeding  to  define  and  determine  the  constitutional  power  of  the  Legis- 
lative department,  it  is  proper  to  note  the  characteristic  difference  which 
marks  our  Federal  and  State  Constitutions.  Whilst  the  former  contains  only 
specific  grants  of  powers,  the  latter  makes  a  general  grant  of  all  the  polltictl 
power  of  the  people,  restrained  only  by  specific  reservations.  Hence  in  de- 
termining upon  the  validity  of  statutes  the  acts  of  Congress  are  to  be  con- 
strued with  greater  stringency,  than  the  acts  passed  by  our  General  Assembly. 

3.  No  certain  rule  can  be  prescribed  by  which  to  determine  when  a  work  of  In- 
ternal Improvement  shall  be  deemed  to  be  embraced  within  the  meaning  of 
the  phrase,  "County  purpose"  as  the  same  Is  used  in  the  4th  clause  of  the 
8th  article  of  the  State  Constitution.  Neither  the  locality  of  the  work,  nor 
the  anticipated  benefit  to  be  derived  from  it,  is  of  Itself  a  certain  test :  but  is 
furnishing  a  general  rule,  the  concurrence  of  the  two  would  seem  to  be  re- 
quired. 

4.  Whether  the  2d  section  of  8th  article  of  the  State  Constitution  imposes  an 
Imperative  restriction  upon  the  taxing  power  of  the  General  Assembly,  and 
such  an  one  as  can  be  enforced  by  the  Judicial  department,  or  whether  it  !■ 
only  discretionary.     Queret 

6.  That  the  Pensacola  and  Georgia  Railroad  Company.  Is  a  private  corporation, 
affords  no  valid  reason  why  the  shares  of  its  capital  stock,  purchased  by  and 
on  behalf  of  the  County  of  Leon,  should  not  be  deemed  to  be  the  public 
property  of  the  citizens  of  the  County. 

6.  The  act  of  subscription  to  the  capital  stock  of  the  Pensacola  and  Georgia 
Railroad  Company,  by  the  Board  of  County  Commissioners  of  l/eon  County. 
Is  within  thp  moaning  of  the  phrase  "County  purposes"  as  used  in  the  Con- 
stitution of  the  State. 

7.  The  word  "necessary"  occurlng  In  the  2d  clause  of  the  8th  article  of  the 
Constitution  and  by  implication  transferred  to  the  4ih  clause  of  the  same 
article,  when  applied  to  the  taxing  power  of  the  county  authorljties  is  to  be 


TERM  AT  TALIAHASSEE,  1856.  611 


Cotten  et  al.  vs,  Co.  Commissioners  of  L#oon  Co.  et  al — Statement  of  Case. 


taken  rather  as  an  indication  of  a  grant  of  discretion,  to  be  exercised  within 
the  appropriate  limits  of  their  general  power,  than  as  a  restraint  upon  that 
power. 

8.  The  provision  of  the  act,  which  required  that  a  subscription  to  the  Stock  of 
the  Rallrrad  Company,  by  the  County  Commissioners,  should  depend  upon 
a  vote  of  the  qualified  voters  of  the  county,  was  not  a  delectation  to  the  peo- 
ple of  legislative  powers,  but  only  a  legitimate  mode  of  rbtaining  an  expres- 
sion of  the  will  of  the  constituent,  as  a  guide  for  the  action  of  the  repre- 
sentative. 

0.  The  provision  contained  in  the  act,  that  each  tax-payer  should  receive  a  re- 
muneration in  the  shape  of  Stock  in  the  Railroad  Company,  equivalent  to  the 
amount  of  his  tax  assessment,  is  not  in  conflict  with  either  the  let  or  24th 
clauses  of  our  ''Declaration  of  Rights." 

10.  The  provision  of  the  act  which  authorize  the  counties  to  issue  Bonds  for 
the  purpose  of  raising  money  to  pay  for  the  stock  to  be  purchased,  does  not 
contravene  the  letter  or  spirit  of  the  13th  clause  of  the  13th  article  of  the 
Constitution,  which  prohibits  the  General  Assembly  from  pledging  the  faith 
and  credit  of  the  State  to  raise  funds  in  aid  of  Corporations. 

11.  The  22d  section  of  the  act  of  the  General  Assembly  of  1855,  entitled  "An 
act  to  provide  for  and  encourage  a  liberal  system  of  Intei^al  Improvements 
In  this  State,"  declared  to  bo  constitutional. 

Appeal  from  Leon  Circuit  Court  sitting  in  Chancery. 

Appellants  filed  their  bill  for  an  injunction  to  restrain 
the  County  Commissioners  of  Leon  County  from  levying 
and  collecting  a  tax  imposed  by  them  to  meet  an  instalment 
of  stock  subscribed  by  the  County  in  tlie  Pensacola  and 
Georgia  Railroad  C^)mpany. 

On  presenting  the  bill,  an  in  junction  was  granted,  which 
however,  was  dissolved  on  the  coming  in  of  tlie  answer, 
and  the  bill  was  dismissed. 

The  question  presented  by  the  pleadings  for  the  decision 
of  the  court,  is,  wliether  the  General  Assembly  has  the 
constitutional  power  to  confer  upon  counties  as  attempted 
by  the  "act  to  provide  for  and  encourage  a  liberal  system 
of  Internal  Improvements  in  this  State,"  passed  in  Janua- 
ry, 1855,  the  authority  to  subscribe  for  shares  in  the  capi- 
tal stock  of  certain  Railroad  Companies,  and  impose  and 
collect  taxes  for  the  payment  thereof. 


612  SUPREME  COURT. 

Gotten  et.  al.  ts.  The  Co.CommlsBioners  of  Leon  Co.  et.al. — Opinion  of  Court 

M,  D,  Papy,  and  D.  P,  Hogue,  for  Appellants. 
Jos,  T.  Archer  and  A,  L,  Woodward,  for  Appellees. 
DUPONT,  J.,  delivered  flie  opinion  of  the  court. 

It  would  prove  but  a  useless  waste  of  words — an  unpro- 
fitable expenditure  of  time — to  engage  in  any  labored 
effort  to  impress  the  importance  of  the  question  presented 
by  this  case  for  the  adjudication  of  the  court. 

The  bare  announcement  that  it  involves  the  construe- 
tion  and  interpretation  to  be  given  to  certain  clauses  of 
the  Constitution  of  the  State-^the  fundamental  law  of  the 
land — the  embodiment  of  the  delegated  sovereignty  of  the 
people — is  a  sufficient  guarantee  that  it  has  received  at  the 
hands  of  the  court  that  calm,  thorough  and  anxious  con- 
sideration which  befitted  the  occasion.  Without,  there- 
fore, indulging  in  the  encomiums  upon  our  republican  insti- 
tutions which  usually  constitute  the  exordium  to  efforts  of 
this  character,  we  the  ratlier  address  ourselves  at  once  to  the 
particular  point  involved  in  tlie  case,  and,  aided  as  we 
have  been  by  the  arguments  and  investigations  of  the  able 
counsel  engaged  on  either  side,  we  shall  endeavor,  plainly 
and  briefly  as  we  may,  to  assign  the  reasons  which  have  ope- 
rated to  conduct  our  minds  to  the  conclusions  at  which  we 
have  arrived. 

Before,  however,  entering  upon  the  discussion  of  this 
point,  it  may  not  be  inappropriate  or  unprofitable  to  con- 
sider and  endeavor  to  define  the  legitimate  power  of  the 
judicial  department,  when  called  upon  to  arrest  the  action 
of  a  co-ordinate  branch  of  the  government.  Indeed,  we 
deem  a  clear  apprehension  of  the  limits  of  this  power  not 
only  essential  to  the  harmony  of  the  three  great  depart- 
ments which  have  been  established  by  the  fundamental 
law  as  contained  in  their  State  Constitution,  but  absolutely 


TERM  AT  TALLAHASSEE,  1866.  613 


Gotten  et.  al.  ts.  The  Co.Commluionen  of  Leon  Co.  etal. — Opinion  of  Court 

necessary  for  the  very  conservation  of  that  instrument 
itself;  for  it  has  happened,  and  may  again  happen,  that 
the  arm  which  is  invoked  for  the  protection  of  that  sacred 
palladium  of  our  political  rights  may,  from  a  misappre- 
hension of  its  legitimate  functions,  give  it  its  most  deadly 
wound.  Instances  are  not  lacking  to  show  that  the  judici- 
ary, in  essaying  to  shield  the  Constitution  against  the  pre- 
sumed aggressions  of  the  Legislature,  has  itself  become 
the  greater  aggressor.  Every  enlightened  court  will  be 
admonished  by  thcFe  instances,  of  how  delicate  a  character 
is  the  duty  imposed  upon  it,  when  called  to  decide  upon 
the  constitutionality  of  an  act  of  the  Legislature.  While 
it  is  an  essential  element  in  the  character  of  an  indepen- 
dent judiciary  firmly  to  maintain  and  resolutely  to  exer- 
cise its  appropriate  powers  when  properly  invoked,  it  is 
equally  its  duty  to  be  careful  not  rashly  and  inconsider- 
ately to  trench  upon  or  invade  the  precincts  of  the  other 
departments  of  the  government. 

That  the  judicial  department  is  the  proper  power  in  the 
government  to  determine  whether  a  statute  be  or  be  not 
constitutional  will  not,  at  this  day,  be  questioned.  That 
matter,  though  once  mooted  by  no  less  a  man  than  Thomas 
Jefferson,  was  put  finally  to  test  by  the  decision  in  the 
case  of  Marbury  v.  Madison,  wherein  C.  J.  Marshall  gave 
it  the  sanction  of  his. great  name.  But  it  is  a  most  grave 
and  important  power,  not  to  be  exercised  lightly  or  rashly, 
nor  in  any  case  where  it  cannot  be  made  to  appear  plainly 
that  the  Legislature  has  exceeded  its  powers.  If  there 
exist  upon  the  mind  of  the  court  a  reasonable  doubt,  that 
doubt  must  be  given  in  favor  of  the  law.  In  support  of 
this  position  is  the  case  of  Hylton  vs.  the  United  States, 
3  Dallas  R.,  171,  in  which  Mr.  Justice  Chase  declares,  "if 
the  court  have  such  power,  I  am  free  to  declare  that  I  will 
never  exercise  it  but  in  a  very  clear  case."  And  in  Cooper 
41 


614  SUPREME  COURT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Court 

VS.  Telfair,  4  Dall.,  14,  Mr.  Justice  Washington  says,  "the 
presumption  must  always  be  in  favor  of  the  validity  of  the 
laws,  if  the  contrary  is  not  clearly  demonstrated."  In 
Fletcher  vs.  Peek,  8  Cranch  R.,  87,  C.  J.  Marshall,  who  in 
the  previous  case  of  Marbury  vs.  Madison,  had  dwelt  so 
strenuously  upon  not  only  the  power  but  the  duty  of  the 
judiciary  to  restrain  the  other  departments  within  their 
appropriate  boundaries,  declared,  "it  is  not  on  slight  im- 
plication and  vague  conjecture  that  the  Legislature  is  to 
be  pronounced  to  have  transcended  its  powers  and  its  acts 
to  be  considered  void.  The  opposition  between  the  Con- 
stitution and  the  laws  should  be  such  that  the  Judge  feels 
a  clear  and  strong  conviction  of  their  incompatibility  with 
each  other." 

In  further  support  of  this  position  may  be  cited  any 
number  of  decisions  by  the  State  courts.  We  shall  refer 
to  only  a  few  of  them,  remarking,  however,  that  if  there 
be  one  to  be  found  which  constitutes  an  exception  to  the 
general  doctrine,  it  has  escaped  our  search.  In  Adams  vg. 
Howe,  14  Mass.  R.,  345,  the  doctrine  is  thus  stated :  "The 
Legislature  is,  in  the  first  instance,  to  be  the  judge  of  its 
own  constitutional  powers,  and  it  is  only  when  manifest 
assumption  of  authority  or  misapprehension  of  it  sliall 
clearly  appear  that  the  judicial  power  wil  refuse  to  exe- 
cute the  law."  In  Wellington  vs.  Petitioners,  &c.,  16 
Pick.  P.,  95,  the  same  court  announce  their  determination 
"never  to  declare  a  statute  void  unless  the  nullitv  and  in- 
validity  of  the  act  are  placed,  in  their  judgment,  t»eyond 
reasonable  doubt.  In  the  case  of  City  of  Louisville  vs. 
Hiatt,  2  Mon.,  170,  the  Court  of  Appeals  of  Kentuck}-,  say: 
**If  it  be  doubtful  or  questionable  whether  the  legislative 
power  has  exceeded  its  limits,  the  judiciary  cannot  inter- 
fere, though  it  may  not  be  satisfied  that  the  act  is  consti- 
tutional."    The  same  doctrine  is  again  anuounced  by  ihat 


TERM  AT  TALLAHASSEE,  1856.  615 


Gotten  et.  al.  vs.  The  Co.ComnilRsloners  of  I..eon  Co.  etal. — Opinion  of  Court. 

court  in  the  case  of  Lexington  vs.  McQuillan's  heirs — 9 
Dan.,  514 — they  declare:  "We  should  be  justly  charge- 
able with  wandering  from  the  appropriate  sphere  of  the 
judiciary  department  were  we,  by  subtle  elaboration  of  ab- 
stract principles  and  metaphysical  doubts  and  difficulties, 
to  endeavor  to  show  that  such  a  power  may  be  question- 
able, and  on  such  unstable  and  injudicious  ground  to  defy 
and  overrule  the  public  will,  as  clearly  announced  by  the 
legislative  organ." 

In  the  case  of  Police  Jury  vs.  Succession  of  McDonough, 
decided  in  the  Supreme  Court  of  Louisiana  and  reported 
in  8th  Louis.  An.  Reports,  341,  Sliddell,  C.  J.,  says :  "It  is 
true,  that  if  a  statute  passed  by  the  Legislature  is  not  war- 
ranted by  the  powers  vested  in  that  body,  such  act  cannot 
have  the  force  of  law,  and  it  is  the  solemn  duty  of  the  ju- 
diciary so  to  declare  it  when  an  attempt  is  made  through 
the  judiciary  to  enforce  it.  But  this  is  a  most  grave  judi- 
cial power,  not  to  be  exercised  lightly  nor  in  any  case 
where  it  cannot  be  made  to  appear  plainly  that  the  Legis- 
lature has  exceeded  its  powers.  In  just  deference  to  a  co- 
ordinate department  of  the  government,  it  is  always  to  be 
presumed  that  a  statute  is  conformable  to  the  Constitution 
and  has  the  form  of  law  until  the  contrary  is  clearly 
shown." 

Ranny,  J.,  in  delivering  the  opinion  in  the  case  of  the 
Cincinnati,  Wilmington  and  Zanesville  Railroad  Company 
vs.  the  Commissioners  of  Clinton  county,  reported  in  1st 
Ohio  State  Reports,  77,  has  placed  this  matter  in  such 
strong  light  that  we  cannot  resist  a  further  citation,  even 
at  the  hazard  of  being  considered  unnecessarily  prolix. 
He  says:  "But  while  the  right  and  duty  of  interference  in 
a  proper  case  are  thus  undeniably  clear,  the  principles  by 
which  a  court  should  be  guided  in  such  an  enquiry  are 
equally  clear,   both   upon   principle   and   authority.     It   is 


616  SUPEEME  COUET. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Coort 

never  to  be  forgotten  that  the  presumption  is  always  in 
favor  of  the  validity  of  the  law,  and  it  is  only  when  mani- 
fest assumption  of  authority  and  clear  incompatibility  be- 
tween the  Constitution  and  the  law  appear  that  the  judi- 
cial power  can  refuse  to  execute  it,  which  interference  can 
never  be  permitted  in  a  doubtful  case;  and  this  results 
from  the  very  nature  of  the  question  involved  in  the  en- 
quiry. The  Legislature  is  of  necessity,  in  the  fir-^t  in- 
stance, to  be  the  judge  of  its  own  constitutional  powers. 
Its  members  act  under  an  oath  to  support  the  Constitu- 
tion, and  in  every  way  under  responsibilities  as  great  as 
judicial  officers.    Their  manifest  duty    is   never   to   exercise 

«  

a  power  of  doubtful  constitutionality.  Doubt  in  their  case, 
as  in  that  of  the  courts,  should  be  conclusive  against  all 
affirmative  action.  This  being  their  duty,  we  are  bound 
in  all  cases  to  presume  they  have  regarded  it,  and  that 
they  are  clearly  convinced  of  their  power  to  pass  a  law  be- 
fore they  put  it  in  the  statute  book." 

But  why  multiply  authority  to  sustain  a  proposition  so 
plain — so  reasonable  and  perfectly  conclusive  to  the  mind 
of  any  one,  wlio  lias  the  slightest  apprehension  of  the  priD- 
ciplcs  underlying  the  great  fabric  of  a  Republican  Govern- 
ment? Upon  the  rigid  observance  of  the  principles  em- 
braced in  this  proposition,  depends  the  harmony  of  the 
great  departments  of  the  government.  Violate  it,  and  soon 
they  will  be  seen  like  errant  spheres  madly  shooting  from 
their  appropriate  orbits,  and  engendering  passion,  strife, 
embarrassment,  confusion,  uncertainty,  where  there  should 
alone  exist  love,  peace,  union,  concord  and  co-operation. 

The  Constitutional  power  of  the  General  Assembly  tn 
confer  upon  the  several  counties  of  this  State  as  they  have 
attempted  to  do  by  the  enactment  of  the  2 2d  section  of  the 
act  of  1855,  entitled  "an  act  to  provide  for  and  encourage 
a  liberal  system  of  Internal  Improvements  in  this  State," 


TERM  AT  TALLAHASSEE,  1856.  617 

Gotten  et.  al.  ys.  The  Co-CommUslonen  of  Leon  Co.  etal. — Opinion  of  Court. 

the  authority  to  subscribe  for  shares  in  the  capital  stock  of 
certain  Railroad  Companies  therein  referred  to,  and  to 
provide  by  taxation  through  their  respective  Boards  of 
County  Commissioners,  for  the  liquidation  of  the  debt  so  to 
be  incurred,  is  the  particular  question  submitted  for  our 
decision. 

In  order  to  a  better  understanding  of  the  argument,  and 
as  in  its  progress  we  shall  have  occasion  to  refer  specially 
to  its  provisions,  it  may  be  proper  to  set  forth  the  section 
in  full.    It  is  as  follows : 

"Sec.  22.  Be  it  further  enacted.  That  it  shall  be  'law- 
ful for  the  Board  of  County  Commisisoners  of  any  county, 
or  the  mayor  and  Council  of  any  city,  or  the  Trustees  of 
any  town,  through  or  near  which  such  Railroad  or  their 
extensions  may  pass  or  in  which  they  may  terminate,  and 
they  are  hereby  authorized  to  subscribe  and  hold  stock  in 
said  company,  upon  the  same  terms  and  conditions,  and 
subject  to  the  same  restrictions  as  other  stockholders:  Pro- 
vided, it  shall  be  first  submitted  to  the  vote  of  tlie  legal 
voters  of  said  county,  city  or  town,  to  be  held  and  taken 
at  such  times  and  places,  and  in  such  a  manner,  as  said 
authorities  respectively  may  appoint,  whether  or  not  stock 
shall  be  taken;  and  if  when  the  vote  be  thus  taken  it  shall 
appear  that  a  majority  of  the  votes  shall  be  in  favor  of  such 
subscription,  it  shall  thereupon  be  lawful  for  the  board  of 
county  commissioners,  city  or  town  authorities,  by  agents 
by  them  appointed,  to  subscribe  and  take  in  such  company 
such  an  amount  of  stock  as  they  shall  determine :  Provided, 
That  in  no  case  of  county  subscription  the  amount  shall 
exceed  fifty  per  cent  of  the  cost  of  construction  through 
said  county;  and  to  issue  the  bonds  of  said  county,  city  or 
town,  payable  with  interest  at  such  times  and  places  as 
they  may  deem  proper,  and  dispose  of  the  same  for  the  pay- 
ment of  such  subscription,  pledging  the   faith   and   resour- 


618  SUPKEME  COUKT. 


Cotten  et.  al.  vs.  The  Co.CommlssloDors  of  Leon  Co.  etal. — Opinion  of  Coart 

--  ■■ 

ces  of  said  county,  city  or  town,  for  the  payment  of  such 
Bonds  and  interest,  and  they  shall  from  time  to  time,  le\7 
and  collect  such  a  tax  as  shall  be  necessary  to  pay  the  in- 
stalments of  interest  on  the  bonds,  as  the  same  become 
due,  or  to  create  a  sinking  fund  for  the  gradual  reduction 
of  the  same:  Provided,  That  the  rate  of  interests  shall  not 
exceed  ten  per  centum  per  annum;  or  funds  may  be  raised 
by  such  Board  of  County  Commisioners,  or  city  or  town 
authorities,  by  tax,  in  such  sums  or  instalments  as  will 
meet  such  subscriptions  and  the  receipt  for  the  payment 
of  such  tax,  shall  entitle  the  payers  thereof  of  every  one 
hundred  dollars  so  paid,  to  have  one  share  or  more,  as  the 
case  may  be,  of  the  stock  so  subscribed  by  said  county 
commissioners,  city  or  town,  in  said  company,  and  which 
receipts  shall  be  assignable.  No  stock  held  by  any  county, 
city  or  town,  shall  be  assignable  by  said  county,  city  or 
town  until  the  bonds  issued  for  the  purpose  of  procuring 
funds  for  the  payment  of  said  county,  city  or  town  subscrip- 
tion, shall  be  paid,  except  in  exchange  for  such  bonds." 

The  counsel  for  the  appellants,  contesting  the  exercise  of 
this  power  by  the  General  Assembly,  have  cited  us  to  seve- 
ral general  principles  of  government  which,  even  if  they 
were  not  expressly  enunciated  in  our  "Declaration  of 
Rights,"  are  of  too  universal  acceptation  in  this  countn' 
to  admit  of  any  question  as  to  their  correctness.  Among 
the  propositions  thus  cited  is  the  one  "that  all  political 
power  is  inherent  in  the  people."  While  we  readily  ad- 
mit the  truth  of  this  proposition,  we  by  no  means  concur 
in  the  application  which  has  been  made  of  it,  or  in  the  ar- 
gument attempted  to  be  deduced  therefrom.  If  we  cor- 
rectly apprehend  the  use  intended  to  be  made  of  this  po- 
litical axiom,  it  was  to  assimilate  the  Federal  and  State 
Constitutions  and  to  invoke  the  same  stringency  of  con- 
Btruction  when  applied  to  the  one   as   to   the   other.    But 


TEBM  AT  TALLAHASSEE,  1856.  619 

Gotten  et.  al.  vs.  The  Co.CommUsioners  of  Leon  Co.  etal. — Opinion  of  Conrt. 

there  exists  a  manifest  difference  in  the  very  elements  of 
the  two  instruments,  and  this  elemental  difference  induces 
also  a  difference  in  the  rules  of  construction  to  be  applied 
to  either  instrument.  Whilst  the  Federal  Constitution  con- 
tains only  specific  grants  of  powers,  coupled  with  a  gene- 
ral reservation,  the  State  constitution  makes  a  general 
grant  of  all  the  political  power  of  the  people,  restricted 
only  by  specific  reservations.  This  characteristic  differ- 
ence will  be  readily  perceived  by  a  bare  reference  to  the 
two  instruments.  In  the  8th  section  of  the  first  article  of 
the  Federal  Constitution  is  enumerated  specially  the  seve- 
ral powers  delegated  to  the  legislative  department  of  the 
General  Government.  But,  so  jealous  were  the  people  of 
the  respective  States,  that,  not  content  with  this  special 
enumeration  of  the  powers  intended  to  be  granted,  they 
afterwards  forfeited  their  reserved  rights  by  an  asifirmative 
declaration,  in  the  nature  of  an  amendment  to  that  instru- 
ment, "that  the  powers  not  delegated  to  the  United  States 
by  the  constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  tlie  people." 
Here,  as  before  remarked,  is  a  specific  grant,  with  a  gene- 
ral reservation.  In  section  1st  of  article  2nd,  in  our  State 
Constitution,  may  be  found  the  grant  of  power  which  the 
people  have  delegated  to  the  State  government.  It  is 
couched  in  these  terms : 

"The  powers  of  the  government  of  the  State  of  Florida 
shall  be  divided  into  three  distinct  departments,  and  each 
of  them  confined  to  a  separate  body  of  magistracy,  to  wit: 
those  which  are  legislative  to  one;  those  which  are  execu- 
tive to  another,  and  those  which  are  judicial  to  another." 

This  is  certainly  a  full,  entire  and  express  grant  of  all  po- 
litical power,  and  may  be  correctly  denominated  a  gene- 
ral grant;  but,  in  the  27th  clause  of  the  first  article  con- 
stituting the  '^Declaration  of  Bights/'  is  contained  the  re- 


620  SUPEEME  COUBT. 


Gotten  et.  al.  vs.  The  Co.CommUsioDers  of  Leon  Co.  etal. — Opinion  of  Court 

striction  upon  that  grant,  and  that  clause  is  in  the  follow- 
ing words,  viz : 

"That  to  guard  against  transgressions  upon  the  rights  of 
the  people,  we  declare  that  everything  in  this  article  is  ex- 
cepted out  of  the  general  powers  of  government,  and  shall 
forever  remain  inviolate;  and  that  all  laws  contrary  there- 
to, or  to  the  following  provisions,  shall  be  void." 

Here,  then,  is  a  general  grant  of  powers,  coupled  with 
specific  restrictions,  and  this  comparison  serves  to  verify 
the  characteristic  difference  existing  between  the  two  in- 
struments, as  before  announced.  Indeed,  all  writers  who 
have  commented  upon  the  subject,  readily  admit  the  ele- 
mental difference  and  freely  recognize  the  difference  to  be 
observed  in  aplying  the  rules  of  construction. 

Without  further  elaboration  of  the  general  propositions 
assumed  by  the  counsel  for  the  appellants,  we  now  address 
ourselves  to  the  specific  objections  alleged  in  argument 
against  the  power  of  the  General  Asembly  to  pass  the 
section  of  the  act  of  1855  complained  of.  The  main  argu- 
ment of  the  appellants  is  based  upon  the  assumption  that 
the  first  and  second  clauses  of  the  8th  article  of  the  State 
Constitution  contain  restrictions  upon  the  taxing  power  of 
the  General  Assembly,  and  that  by  implication,  if  not  ex- 
pressly, all  these  restrictions  are  applicable  to  and  control 
the  taxing  power  of  the  county  authorities.  The  sections 
referred  to  are  in  these  words : 

"1st.  The  General  Assembly  shall  devise  and  adopt  a 
system  of  revenue,  having  regard  to  an  equal  and  uniform 
mode  of  taxation,  to  be  general  throughout  tlie  State." 

"2nd.  No  other  or  greater  amount  of  tax  or  revenue 
shall  at  any  time  be  levied  than  may  be  required  for  the 
necessary  expense  of  government." 

The  fourth  section  of  the  same  article,  which  contains 


TERM  AT  TALLAHASSEE,  1856.  621 

Gotten  et.  al.  tb.  The  Co.CommiHsioners  of  Leon  Co.  et.al. — Opinion  of  Court. 

the  only  special  delegation  of  power  to  the  counties  to  tax, 
is  in  these  words : 

"The  General  AsFcnibly  shall  have  power  to  authorize 
the  several  counties  and  incorporated  towns  to  impose 
taxes  for  county  and  corporation  purposes,  respectively, 
and  all  property  shall  l)e  taxed  upon  the  principles  estab- 
lished in  regard  to  State  taxation." 

Now,  without  undertaking  to  decide,  or  even  to  intimate 
an  opinion,  whether  the  second  clause,  above  referred  to, 
does  indeed  impose  a  peremptory  restriction,  and  such 
an  one  as  can  be  practically  enforced  by  the  judiciary 
against  the  general  taxing  power  delegated  to  the  General 
Assembly,  we  may,  for  the  sake  of  argument,  admit  that 
it  is  a  restriction  and  constitutes  one  of  the  principles  ap- 
plicable to  the  taxing  power  of  the  counties,  as  referred  to 
in  the  4th  clause  of  the  8th  article.  That  article  may  then 
be  read  thus : 

"The  General  Assembly  shall  have  power  to  authorize 
the  several  counties  and  incorporated  towns  of  this  State 
to  impose  taxes  for  county  and  corporation  purposes  re- 
spectively; and  all  property  shall  be  taxed  according  to 
an  equal  and  uniform  mode  of  taxation,  to  be  general 
throughout  the  county;  and  no  other  or  greater  amount 
of  revenue  shall  at  any  time  be  levied  than  may  be  re- 
quired for  necessary  county  purposes." 

This  exposition  and  interpretation  of  the  fourth  clause 
places  the  matter  in  the  very  strongest  light  contended  for 
on  the  part  of  the  appellants,  and  accords  to  them  all  the  le- 
gitimate fruits  of  their  argument  upon  this  objection.  It 
will  readily  be  perceived,  then,  that  the  whole  argument 
is  narrowed  down  to  the  simple  enquiry  whether  or  not 
the  act  complained  against,  to  wit:  the  subscription  for 
shares  of  stock  in  the  Georgia  and  Fensacola  Railroad 
Company  by  the  Board  of  County  Commisisoners  of  Leon 


622  SUPREME  COUET. 


Gotten  et.  al.  vs.  The  Co.Commissloners  of  Leon  Co.  etal. — Opinion  of  Court 

county  is  legitimately  a  county  purpose,  within  the  mean- 
in  of  the  said  4th  clause  of  the  8th  article  of  the  Consti- 
tution. We  think  that  it  is,  and,  in  order  to  demonstrate 
the  correctness  of  this  conclusion,  it  may  be  proper  to  note 
the  difference  existing  between  the  ordinary  expenses  of 
the  State  and  county  organizations.  While  the  ordinaiy 
expenses  of  the  former  are  mainly  induced  by  the  neces- 
sary support  of  the  officers  required  to  conduct  the  busi- 
ness appertaining  to  the  three  great  departments  of  the 
government  respectively,  that  of  the  latter  is  confined  al- 
most exclusively  to  the  improvement  of  the  social  condition 
of  the  citizens,  there  being  no  salaried  officers  to  support. 
The  Constitution  does  not  attempt  to  give  a  definition  to 
the  term  "ordinary  purpose,*'  and  to  obtain  a  correct  inter- 
pretation of  that  phrase  we  must  look  to  the  contempora- 
neous legislation  upon  that  subject  and  the  uniform  action 
of  the  county  courts  under  the  territorial  government.  By 
this  reference  it  will  be  abundantlv  demonstrated,  that  at 
that  day  county  purposes  were  taken  to  embrace  princi- 
pally the  erection  and  repair  of  court  houses  and  jails,  the 
opening  and  maintaining  public  thoroughfares  within  the 
limits  of  their  respective  counties,  l)y  opening  roads,  build- 
ing bridges  and  causeways,  and  keeping  the  same  in  re- 
pair, licensing  and  regulating  ferries  and  toll-bridges,  &c. 
It  is  thus  seen,  that  the  entire  subject  of  highways  was 
at  the  time  of  the  constitution,  an  object  peculiarly  within 
the  jurisdiction  of  the  county  authorities,  and  we  are  hence 
warranted  in  the  assumption  that  it  was  so  understood  by 
the  Convention  when  they  used  the  phrase,  "County  pur- 
poses.'' But  we  do  not  understand  the  appellants  to  differ 
from  us  in  this  interpretation,  when  applied  to  ordinary 
roads  and  bridges  through  a  county — the  objection  is, 
only  when  it  is  sought  to  apply  it  to  a  "Railroad,"  Up- 
on what  sound  principle  this  particular  species  of  thorough- 


TERM  AT  TALLAHASSEE,  1856.  623 

Cotten  et.  al.  va.  The  Co.Commissioners  of  I..0011  Co.  et.al. — Opinion  of  Court. 

fare  is  to  be  withdrawn  from  the  interpretation  of  the  phrase 
before  referred,  we  arc  at  a  loss  to  perceive.  Surely  it  will 
not  be  seriously  contended  that  while  the  county  aut lion- 
ties  are  permitted  in  the  erection  of  their  court  houses  and 
jails,  to  avail  themselves  of  the  improvements  in  architec- 
ture brought  about  by  the  advancement  so  rapidly  going  on 
in  the  arts  and  sciences,  they  shall  be  precluded  from  avail- 
ing themselves  of  the  benefits  resulting  from  the  most  mag- 
nificent discovery  of  the  age.  With  almost  as  good  reason 
might  it  be  insisted,  that  they  should  confine  their  citizens 
to  treading  the  tortuous  windings  of  the  Indian's  **trair' 
or  to  the  little  less  primitive  thoroughfare  of  the  Pioneer's 
^^ridle  way."  But  not  to  do  injustice  to  the  argument  of 
the  appellants,  we  remark  that  the  objection  seems  to  be, 
not  80  much  to  the  particular  nature  of  the  work  as  to  the 
fact,  that  it  is  not  wholly  confined  within  the  territorial 
limits  of  the  county,  and  was  therefore  not  embraced  in  the 
phrase  "county  purpose."  The  counsel  who  closed  the  ar- 
gument for  the  appellants,  contended  that  the  test  to  be  ap- 
plied to  the  work  as  determining  its  character  in  this  res- 
spect,  was  its  locality,  while  the  counsel  for  the  respon- 
dents insisted  that  the  true  test  was  to  be  found  in  the  an- 
ticipated benefits.  We  think  that  neither  the  one  or  the 
other  of  these  tests,  taken  by  themselves,  will  furnish  the 
correct  rule,  but  as  a  general  rule  that  it  requires  a  concur- 
rence of  both,  for  it  will  readily  strike  the  mind  of  every 
one,  that  a  great  enterprise  may  be  embraced  entirely  with- 
in the  limits  of  a  county,  and  therefore  exclusively  local, 
without, in  the  slightest  degree  being  entitled  to  the  distinc- 
tive character  of  a  county  purpose.  While  on  the  other 
hand,  another  enterprise  though  entirely  without  the  coun- 
ty limit*,  may  confer  innumerable  benefits  upon,  and  ad- 
vance the  best  interests  of  the  county,  with  as  little  claim 
to  the  character  of    a    county  purpose.     Indeed    it    would 


624  SUPEEME  COUBT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Coort 

be  as  unprofitable  as  it  is  dangerous  to  attempt  to  prescribe 
any  definite  rule  to  be  looked  to  as  furnishing  the  correct 
test  on  this  subject.  It  is  better  not  to  essay  to  circum- 
scribe by  fixed  rules,  that  which  no  human  intellect  can 
fully  embrace.  Wisdom  would  counsel,  that  each  case  of 
this  kind  should  be  decided  as  it  may  arise,  untrammelled 
by  the  decision  of  the  preceding  one. 

Another  argument  used  to  show  that  the  object  contem- 
plated by  the  county  subscription  does  not  come  within 
the  meaning  of  the  phrase  "county  purpose"  was  that  the 
corporation  whose  stock  was  subscribed  for,  was  a  private 
corporation.  We  do  not  think  the  argument  at  all  conclu- 
sive, for  though  it  be  true  that  the  Georgia  and  Pensacola 
Railroad  Company  be  a  private  corporation,  yet  the  stock 
purchased  by  the  county  is  certainly  public  property,  and 
belongs  to  the  citizens  of  the  county,  in  the  proportion  of 
their  respective  contributions  by  way  of  taxes.  In  further 
elaboration  of  our  views  on  this  subject,  we  take  it  for  gran- 
ted that  no  one  would  j=eriouslv  contest  the  rio^ht  of  the 
county  to  construct  a  railroad  to  be  located  wholly  within 
her  territorial  limits,  provided  she  possessed  the  means  of 
herself.  Now,  if  this  he  admitted,  then  the  point  is  yielded 
as  to  the  character  of  the  object  to  be  attained,  and  the  only 
question  that  can  arise,  is,  as  to  the  lawfulness  of  the  means 
to  be  employed.  In  this  view  of  the  case,  we  can  discover 
no  objection  in  the  absence  of  the  ability  in  herself  to  effect 
the  object,  that  she  should  invite  the  co-operation,  not  only 
of  contiguous  counties,  but  even  of  individual  capital  and 
enterprise. 

The  two  objections  now  under  consideration,  viz:  that 
the  purpose  of  the  subscription  was  not  a  "county  purpose/' 
and  "that  the  corporation  through  whose  agency  the  road 
was  expected  to  be  built  was  a  private  corporation,"  both 
came  up  for  consideration  in  the  case  of  Nicol  et  al.  ▼». 


TEBM  AT  TALLAHASSEE,  1856.  625 


Gotten  et.  al.  vi.  The  CcCommlBsloneni  of  Leon  Co.  etal. — Opinion  of  Court. 

Mayor  and  Aldermen  of  Nashville^  9  Humph.  R.^  252,  and 
were  so  fully  discussed,  that  we  feel  ourselves  constrained 
to  cite  somewhat  at  large  from  the  report  of  the  case.  The 
Judge  who  delivered  the  opinion  in  that  case,  after  stating 
the  two  objections,  goes  on  to  remark:  "This  29th  sec- 
tion of  the  second  article  of  our  Constitution  provides,  that 
the  General  Assembly  shall  have  power  to  authorize  the 
several  counties  and  incorporated  towns  in  the  State,  to 
impose  taxes  for  county  and  corporation  purposes,  respec- 
tively, in  such  manner  as  shall  be  prescribed  by  law;  and 
all  property  shall  be  taxed  according  to  its  value,  upon  the 
principles  established  in  regard  to  State  taxation."  It  may 
here  be  noted  that  this  provision  in  the  Tennessee  consti- 
tution is  almost  in  the  very  words,  and  certainly  embodies 
the  very  spirit  of  the  provision  contained  in  the  4tli  clause 
of  the  8th  article  of  our  const itu ion.  The  Judge  goes  on 
to  say,  "the  reason  why  this  clause  was  embraced  in  our 
constitution,  those  contemporaneous  with  its  formation 
khow  to  have  been,  that  doubts  had  been  suggested  by  the 
highest  Judicial  tribunal  of  the  State,  as  to  whether  the 
taxing  power  could  be  delegated  by  the  Legislature  to  the 
counties,  and  to  the  incorporated  towns,  and  the  clause  was 
intended  to  remove  these  doubts."  Addressing  himself 
particularly  to  the  points  under  consideration,  he  proceeds 
— "Is  the  making  of  the  road  from  Nashville  to  Chattanoo- 
ga a  corporation  purpose  of  the  town  of  Nashville?  What, 
is  a  corporation  purpose  of  the  town  of  Nashville?  Gen- 
eral definitions,  are  always  difficult  to  be  given  with  pre- 
cision and  accuracy,  especially  where  they  have  to  cover 
aa  extensive  ground  as  that  embraced  in  the  expression, 
"corporation  purposes."  I  shall  therefore  not  attempt  to 
specify  what  are  corporation  purposes  of  the  city  of  Nash- 
ville; they  are  and  may  be  made  -to  be  so  numerous  and 
diversified  aa  may  be  found  requisite  by  experience,  to  pro- 


626  SUPREME  COURT. 


Cotten  et.  al.  vs.  Tho  Co.Commissloners  of  Leon  Co.  el.al. — Opinion  of  Conrt 

mote  the  peace,  comfort  and  prosperity  of  its  corporation,  and 
anything  wliich  promotes  these  things,  is  or  may  be  constitu- 
ted a  legitimate  corporation  purpose."  ♦  ♦  ♦  "Such  are 
all  facilities  of  canals,  roads,  the  improvement  of  rivers,  by 
whicli  their  navigable  use  is  extended,  by  all  which  the 
commercial  interests  of.  a  town  is  increased  and  expanded 
by  reason  of  the  increased  facilities  of  communications  thus 
furnished,  by  means  of  which,  the  wealth  of  its  populatore 
individually  and  collectively  is  increased  with  a  consequent 
increase  of  the  comforts  and  enjoyments  of  life/' 

It  is  true  these  improvements  must  have  some  connex- 
ion with  the  corporate  town  claiming  them  as  corporate 
purposes  more  direct  than  that  which  would  result  from 
the  general  increased  prosperity  of  the  country  by  reason 
of  sucli  improvements,  made  without  a  direct  reference  to 
or  indirect  connexion  with  the  town.  That  is,  the  im- 
provement claimed  to  be  a  corporate  purpose,  of  the  char- 
acter under  discussion,  must  have  such  relation  to  the 
town  as  to  be  tlie  medium  through  which  this  prosperity  ifi 
attained.  It  must  begin  or  terminate  at  the  town,  or  pass 
througli  or  so  near  to  it  as  to  be  capable  of  effecting  its  di- 
rect interests.  It  would  seem  to  be  an  incontestable  truth, 
that  a  corporate  town,  is  deeply  interested  in  tlie  making 
of  any  road  or  other  means  of  transportation  and  travel 
wherebv  the  facilities  of  its  commerce  are  increased — and, 
if  it  be  so  interested,  why  shall  it  not  become  a  corporate 
purpose  to  have  them  made?  It  would  really  seem  almost 
uj^eless  to  argue  in  favor  of  it.  Is  there  anything  illegal  in 
it?  Is  there  anything  against  good  morals  in  it?  Is  there 
anything  against  public  good  in  it?  Surely  not.  A  town 
is  situated  ten  miles  from  a  navigable  stream.  It  is  obvi- 
ous that  it  would  be  a  matter  of  great  importance  to  the 
town,  its  roinniercp  and  general  prosperit ',  to  have  a  rail- 
road or  MoAdaniizod   road  to   the  river.     It    concerns    no 


TERM  AT  TALLAHASSEE,  1856.  627 

Gotten  et.  al.  tb.  The  Co.Comml88ioner8  of  Leon  Co.  et.al. — Opinion  of  Court. 

one  else  but  this  town,  and  no  one  else  will  make  it.  Shall 
it  not  become  a  corporate  purpose  of  this  town  to  make  it, 
if  it  be  able?  Surely  no  one  will  deny  but  that  it  may."*  *  * 
'nf  a  corporation  may  make  the  road,  may  it  not  join  with 
others  to  make  it?  If  the  undertaking  be  too  expensive  to 
be  carried  into  execution  by  the  corporation  itself,  or,  if 
others  be  desirous  of  uniting  with  it  for  the  effectuating  of 
the  design,  why  may  they  not  unite?  Again,  it  may  be 
asked,  is  there  anything  wrong  in  this?  Is  there  anything 
against  the  public  good  in  this?  Is  there  anything  against 
law  in  this?    Surely  not." 

These  views  are  so  simply  and  forcibly  psxpreFesd,  and  at 
the  same  time  are  so  pertinent  to  the  points  under  discus- 
sion, that  we  have,  at  the  hazard  of  extending  tliis  opinion 
to  an  unreasonable  length,  deemed  it  profitable  to  refer  to 
and  cite  them  fully. 

Sliddell,  C.  J.,  of  the  Supreme  Court  of  Louisiana,  ex- 
pressed similar  views  upon  the  same  point,  which  arose  in 
the  case  of  Police  Jury  vs.  Succession  of  McDonough,  (8 
Louisiana  An.  Reports,  341,)  which  was  decided  as  late  as 
the  year  1853.  Referring  to  the  enquiry  what  are  county 
purposes,  he  remarks:  "This  question  is  not  a  new  one; 
on  the  contrary,  it  has  been  frequently  subjected  to  rigor- 
ous judicial  investigation,  and  its  answer  may  be  satisfac- 
torily found  in  the  illustrations  which  are  presented  in  de- 
cided cases.  Thus,  in  the  case  of  Goddin  vs.  Crump,  8 
Leigh's  Virginia  Reports,  the  improvement  of  James  and 
Kanawha  rivers  was  considered,  as  regards  the  city  of  Rich- 
mond, a  local  purpose  by  reason  of  its  connexion  with  the 
commercial  prosperity  of  that  city." 

After  citing  the  observations  of  Tucker,  J.,  in  the  last 
foregoing  case,  and  several  others  to  the  same  point,  he 
proceeds  to  express  the  following  enlightened  viqws:  ''If 
the  decisions  cited  be  true  exponents  of  the  law,  as  we 


628  SUPREME  COUET. 


Gotten  et.  al.  vs.  The  Co.Commissioners  of  Leon  Co.  ct.al. — Opinion  of  Court 


think  they  are,  their  application  to  the  present  case  is  ob- 
vious. The  contemplated  railroad  passes  through  the  ter- 
ritorial limits  of  this  corporation  and  has  one  of  its  ier- 
mini  there.  If  the  enterprise  is  successful,  the  results 
which  have  been  experienced  in  other  towns  and  sections 
of  the  Union  may  be  realized  here.  Its  facilities  of  com- 
merce may  be  enhanced.  An  impulse  to  industry  within 
its  limits  may  be  given — its  population  augmented — its 
lands  rise  in  value.  Wliether  these  prosperous  results 
will  ensue,  is  in  the  womb  of  the  future.  But  it  is  evident 
that  the  Legislature  expected  them,  and  it  is  clear  that  the 
police  jury  and  a  majority  of  the  voters  so  thought.  The 
Legislature  plainly  declared  such  an  enterprise  to  be  with- 
in the  range  of  their  corporate  purposes.  The  policy  jury, 
acting  under  the  legislative  sanction,  declared  by  their  or- 
dinance their  opinion  that  the  measure  would  conduce  to 
the  interests  of  their  locality,  and  a  majority  of  the  tax-pay- 
ers have  concurred  in  that  opinion.  Whether  their  expec- 
tation is  false  or  well  founded  is  not,  under  such  a  state  of 
legislation,  a  judicial  question.  We  take  it  to  be  a  well 
settled  principle,  that  if  the  Legislature  can  constitu- 
tionally exercise  a  power,  it  is  to  be  presumed  by  the  judi- 
ciary, in  just  deference  to  a  co-ordinate  branch  of  the  gov- 
ernment, that  in  the  particular  case  it  was  exercised  dis- 
creetly and  with  a  deliberate  and  just  regard  to  tlie  inter- 
ests of  its  citizens." — (Citing  the  opinion  of  C.  J.  Shaw,  in 
the  case  of  Norwich  vs.  The  County  Commissioners,  13 
Pick.,  62.) 

We  might  cite  several  other  cases,  going  to  illustrate  the 
meaning  of  tlie  term  "county  purpose,"  but  we  deem  the 
foregoing  sufficient  to  warrant  us  in  declaring  the  act  of 
subscription  to  the  capital  stock  of  the  Georgia  and  Pen- 
sacola  Railroad  Company,  by  the  Board  of  County  Com- 
missioners of  Leon  county,  to  be  fully  within  the  letter 
and  spirit  of  that  phrase.  • 


TERM  AT  TALLAHASSEE,  1856.  629 

Gotten  et.  al.  vs.  The  Co.Commlssloners  of  Leon  Co.  et.al. — Opinion  of  Court. 

It  was  urged  with  much  earnestness  at  bar,  that  the 
word  "necessary,"  in  the  connection  in  which  it  occurs  in 
the  2nd  clause  of  the  8th  article  of  the  Constitution,  and 
by  implication  transferred  to  the  4th  clause  of  the  same 
article,  qualifies  the  term  "county  purposes"  occurring  in 
the  latter  clauee,  and  that  it  ought  to  exercise  a  potent  in- 
fluence in  determining  the  true  meaning  of  that  term.  It 
was  argued  that  the  word  necessary,  in  tliis  connection, 
must  be  taken  to  limit  the  action  of  the  county  authorities 
to  such  purposes  only  as  were  indispensable  to  promote  the 
interests  of  the  county.  In  other  words,  that  it  restrained 
their  action  to  the  superintendence  of  the  ordinary  affairs 
of  the  county.  However  this  may  be  when  applied  to  the 
expenses  of  the  State  government,  (of  which  we  desire  to 
intimate  no  opinion,)  we  are  very  clear,  that  as  applied  to 
the  counties,  the  term  does  not  have  the  effect  contended 
for.  The  word  necessary  is  an  adjective  possessing  degrees. 
A  thing  or  purpose  may  be  necessary,  more  necessary,  in- 
dispensably necessary.  An  object  simply  necessary  to 
subserve  the  interests  of  a  county  is  as  much  a  "county 
purpose"  as  though  that  object  were  indispensably  neces- 
sary. We  do  not  see  that  a  reference  to  the  term  furnishes 
any  light  to  the  interpretation  of  the  phrase  "county  pur- 
pose," or  that  it  serves  in  the  slightest  degree  to  fix  or 
limit  the  true  meaning  of  that  phrase.  If,  indeed,  it  had 
any  distinctive  meaning  in  the  connection  to  which  it  is 
sought  to  apply  it,  (and  we  are  rather  of  the  opinion  that 
it  has,)  we  are  inclined  to  think  that  that  meaning  is  pre- 
cisely the  reverse  of  that  contended  for  in  the  argument 
for  the  appellants,  and  that  it  is  rather  the  indication  of  a 
grant  of  discretionary  power,  to  be  exercised  by  the  county 
authorities  within  the  appropriate  limits  of  their  general 
powers,  than  a  restraint  upon  those  powers. 

As  pertinent  to  the  matter  under  discussion,  we  cannot 
42 


630  SUPREME  COUBT. 


Gotten  et.  al.  vs.  The  Co.Commissioners  of  Leon  Co.  etal. — Opinion  of  Coort 


more  forcibly  express  our  views  than  by  citing  the  very  lu- 
cid comments  of  Chancellor  Kent  upon  a  kindred  subject, 
to-wit :  the  constitutional  powers  of  the  Federal  Govern- 
ment. We  remark  incidentally,  however,  that  while  we 
fully  adopt  the  logic  of  the  distinguished  commentator,  we 
by  no  means  desire  to  be  considered  as  sanctioning  his  ap- 
plication of  it.  The  reasoning  may  be  perfectly  sound 
when  applied  to  a  government  of  general  powers,  such  as 
our  State  government,  and  yet  wholly  fatal  and  incon- 
clusive when  applied  to  a  government  possessing  only 
enumerated  powers,  such  as  is  the  Federal  Government. 

He  says — "The  constitution  has  not  left  the  right  of  Con- 
gress to  employ  necessary  means  for  the  execution  of  its 
powers  to  general  reasoning.  It  is  expressly  authorized  to 
employ  such  means;  and  necessary  means,  in  the  sense  of 
the  constitution,  does  not  import  an  absolute  physical  ne- 
cessity so  strong  that  one  thing  cannot  exist  without  the 
otiier.  It  stands  for  any  means  calculated  to  produce  the 
end.  The  word  necessary  admits  of  all  degrees  of  compar- 
ison. A  tiling  may  be  necessary,  or  very  necessary,  or  ab- 
solutely and  indispensably  necessary.  The  word  is  used  in 
various  senses,  and  in  its  construction  the  subject,  the  con- 
text, the  intention,  are  all  to  be  taken  into  view.  The  low- 
ers of  the  government  were  given  for  the  welfare  of  the  na- 
tion. They  were  intended  to  endure  for  ages  to  come,  and 
to  be  adapted  to  the  various  crises  of  human  affairs.  To  pre- 
scribe the  specific  means  by  which  government  should  in 
all  future  time  execute  its  powers,  and  to  confine  its  choice 
of  means  to  such  narrow  limits  as  should  not  leave  it  in  the 
power  of  Congress  to  adopt  any  which  might  be  appropri- 
ate and  conducive  to  the  end,  would  be  most  unwise  and 
pernicious,  because  it  would  be  an  attempt  to  provide  bv 
immutable  rules,  for  exigencies  which  if  foreseen  at  all  must 
have  been  seen  dimly,  and  would  deprive  the  legislature  of 


TERM  AT  TALLAHASSEE,  1856.  631 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Loon  Co.  ct.al. — Opinion  of  Court. 

the  capacity  to  avail  itself  of  experieoce  or  to  exercise  its 
reason  and  accommodate  its  legislation  to  circumstances. 
If  the  end  be  legitimate  and  within  the  scope  of  the  con- 
stitution, all  means  which  are  appropriate  and  adapted  to 
this  end,  and  which  are  not  prohibited  are  lawful."  1  Kent 
Com.,  252.  These  views  are  as  logical  in  expression,  as  they 
are  beautiful  in  conception,  and  appropriately  applied, 
are  overwhelmingly  conclusive.  We  belong  not  to  the  lat- 
itudinarian  school,  but  our  every  lesson  on  the  subject  of 
government  has  taught  us  to  discriminate  the  distinctive 
elemental  nature  of  the  Federal  and  State  organizations. 
While  the  one  is  simply  a  confederation  of  separate  and  in- 
de}>endent  political  sovereignties,  each  striving  for  the  mas- 
tery— the  other  is  the  pure  embodiment  of  the  will  of  the 
people,  and  constitutes  a  unit. 

Accustomed  to  witness  the  ceaseless  conflicts  of  opposing 
pow^ers,  whether  our  eyes  be  turned  to  our  own  Federal  or- 
ganization, or  to  the  monarchial  governments  of  Europe, 
we  have  learned  to  give  expression  to  our  political  jealousy 
without  duly  considering  the  appropriateness  of  its  applica- 
tion. Here  under  our  State  government  we  have  no  exact- 
ing John — no  jealous  and  determined  Baron.  The  people's 
breath  creates  the  sovereign.  The  people's  breath  can  de- 
molish it.  All  tliese.  harsh  epithets  then,  so  richly  abound- 
ing in  one  of  the  dissenting  opinions,  cited  at  the  argument 
of  this  case — such  as  "piracy,"  "licensed  robbery,"  "spo- 
liation by  a  dominant  faction,"  and  the  like,  we  conceive 
to  have  been  uncalled  for,  in  the  connection  in  which  they 
are  to  be  found,  and  are  to  be  admitted,  rather  for  spici- 
ness,  than  for  their  rhetorical  taste  or  political  applica- 
bility. 

Another  objection  urged  against  the  validity  of  the  act 
of  subscription  to  the  stock  of  the  railroad  company,  and 
one  that  at  the  first  blush  is  rather  imposing    and    plausi- 


632  SUPEEME  COXJBT. 


Gotten  et.  al.  vs.  The  CoXommissioneni  of  Leon  Co.  etal. — Opinion  of  Court 

ble  is,  that  by  the  terms  of  the  statute  its  operating  vi- 
tality was  made  to  depend  wholly  upon  the  votes  of  tlie 
people.  The  position  assumed  in  the  argument  was,  that 
this  act  of  submission  amounted  in  fact  to  a  virtual  dele- 
gation of  the  taxing  power  to  the  people,  and  therefore  a 
clear  violation  of  those  clauses  of  the  Constitution  which 
confines  the  exercise  of  that  power  to  the  General  Assem- 
bly, and  by  their  permission  to  the  respective  county  au- 
thorities. If  the  view  taken  of  this  subject  by  the  appel- 
lants were  correct,  and  it  be  true  that  the  act  in  ques- 
tion does  not  delegate  the  people  the  authority  to  make  sub- 
scription and  the  consequent  power  to  levy  taxes  to  pay 
for  the  same,  we  have  no  hesitancy  in  declaring  such  an 
act  of  the  Legislature   to    be    a   palpable  infraction  of  tlie 

4 

Constitution,  and  one  that  would  demand  the  prompt  in- 
terposition of  the  judiciar}^  It  would  clearly  be  chang- 
ing the  essential  character  of  our  political  institutions  by 
converting  a  representative  government  into  a  pure  de- 
mocracy. But  such  is  not  the  view  whicli  we  have  taken 
of  the  provision  in  that  act.  We  can  discover  nothing  in 
it  which  bears  even  a  semblance  to  a  delegation  of  legisla- 
tive power.  The  only  operation  of  that  provision  is  to  ob- 
tain, in  a  perfectly  legitimate  mode,  the  expression  of  the 
will  of  the  constituent  as  a  guide  for  the  action  of  the  re- 
presentative. Is  there  anything  in  this  violative  of  the 
principles  of  republican  government,  or  abhorrent  to  our 
ideas  of  popular  rights?  Indeed,  if  there  be  one  principle 
of  government  more  jealously  maintained one  more  ear- 
nestly insisted  upon — one  of  more  universal  acceptation 
than  another — it  is  that  "the  representative  is  bound  by 
the  will  of  the  constituent."  This  principle  constitutes  the 
foundation  of  all  representative  governments;  and  there 
are  those  now  on  the  stage  of  action  who  vividly  remem- 
ber the  shock  that  was  given  to  the  popular  mind   when  a 


TERM  AT  TALLAHASSEE,  1856.  633 

Gotten  et.  al.  v».  The  Co.Commissioners  of  T-ieon  Co.  et.al. — Opinion  of  Court. 

high  functionary  of  the  Federal  Government,  some  years 
since,  gave  utterance  to  the  Fentiment  "that  the  arm  of 
the  representative  ought  not  to  be  palsied  by  the  will  of 
his  constituents."  We  have  looked  into  the  act  critically, 
with  a  view  to  ascertain  if  it  is  in  fact  obnoxious  to 
the  objection  under  consideration.  After  authorizing  the 
Board  of  County  Commissioners  of  any  county  to  sub- 
scribe for  the  stock  of  such  railroads  as  are  therein  referred 
to,  the  act  contains  a  proviso  in  these  words:  "Provided, 
It  shall  be  first  submitted  to  the  vote  of  the  legal  voters  of 
said  county,  city  or  town,  to  be  held  and  taken  at  such 
times  and  places  and  in  such  a  manner  as  said  authorities 
respectively  may  appoint,  whether  or  not  stock  shall  be 
taken;  and,  if  when  the  vote  be  thus  taken,  it  shall  appear 
that  a  majority  of  the  voters  shall  be  in  favor  of  such  sub- 
scription, it  shall  thereupon  be  lawful  for  the  Board  of 
County  Commissioners,  city  or  town  authorities,  by  agents 
by  them  appointed,  to  subscribe  and  take  in  such  com- 
pany such  an  amount  of  stock  as  they  shall  determine.'* 
It  will  be  readily  perceived,  by  a  close  attention  to  the 
phraseology  of  this  proviso,  that  even  should  the  vote  be 
favorable  to  the  subscription,  there  is  no  express  mandate 
in  it  making  it  the  duty  of  the  commissioners  to  subscribe. 
So  far  as  the  letter  of  the  law  is  to  determine  its  operation, 
it -is  very  clear  that  a  dkcretion  is  still  lel't  with  them  to 
refuse.  How  far,  in  this  particular,  the  spirit  of  the  law 
shall  control  its  letter,  we  do  not  undertake  to  decide,  or 
even  to  intimate  an  opinion.  But,  be  this  at  it  may  with 
regard  to  the  act  of  ^Mbscription,  we  think  there  can  exist 
no  reasonable  doubt  but  that  the  amount  of  subscription  is 
still  within  the  discretion  of  the  Board  of  Commissioners, 
unaffected  by  the  vote  of  the  people.  If  we  are  correct  in 
this  construction,  then  it  results  undeniably  that  the  vote 
contemplated    by    the    proviso  can,  in  no  proper  sense,  be 


634  SUPREME  COUBT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  I^eon  Co.  etal. — Opinion  of  Court 

deemed  to  be  an  act  of  legislation.  As  upon  the  points 
hereinbefore  discussed,  we  have  upon  the  one  now  under 
consideration  an  array  of  precedents  which  conclusively 
settles  the  lawfulness  of  such  a  submission  to  the  popular 
vote,  whether  it  be  objected  to  as  "the  delegation  of  legis- 
lative power,"  or  as  an  act  of  "conditional  legislation." 

In  the  case  of  Police  jury  vs.  Succession  of  McDonough, 
before  referred  to,  this  very  point  was  discussed  and  set- 
tled. The  court  say:  "Is  such  a  submission  really  incon- 
sistent, as  was  suggested  at  bar,  with  the  genius  of  our  in- 
stitutions? If  the  Legislature  could  constitutionally  con- 
fer on  the  Police  Jury  authority  to  pass  a  taxing  ordi- 
nance, it  would  seem  rather  a  safeguard  against  oppres- 
sion, than  the  reverse,  to  qualify  the  power  of  requiring  it 
to  be  exercised,  with  the  approbation  of  a  majority  of 
those,  who  are  to  bear  the  burden." — (Citing  De  Tocque- 
ville,  p.  65;  White's  Dig.  of  the  Laws  of  Mass.,  1147;  2 
Gill's  Reports,  19;  7  vol.  West,  L.  J.,  22;  8  Barr,  395; 
10  Barr,  216.) 

The  same  point  arose  in  the  case  of  the  Cincinnati,  Wil- 
mington and  Zanesville  Eailroad  Company  vs.  the  Com- 
missioners of  Clinton  County,  hereinbefore  referred  to,  and 
it  was  similarly  decided  in  favor  of  the  law.  In  Ken- 
tucky, the  precise  point  was  ruled  in  the  case  of  Talbot  vs. 
Dent.,  9  B.  Mon.,  526,  and  afterwards  affirmed  in  the  well 
considered  case  of  Slack  vs.  The  Maysville  and  Ijexington 
Railroad  Company,  decided  in  1851  and  reported  in  13 
B.  Mon.,  1.  This  precise  point  has  frequently  been  before 
the  courts  in  all  its  various  phases,  and,  with  scarcely  an 
exception,  has  been  uniformly  ruled  in  favor  of  the  law. 
But,  if  further  authority  be  deemed  necessary  to  put  the 
question  at  rest,  we  refer  to  the  concurrent  action  of  the 
Federal  Government  and  the  State  of  Virginia  with  re- 
gard   to    the    retrocession  of  the  county  of  Alexandria,  in 


TERM  AT  TALLAHASSEE,  1856.  635 

Gotten  et.  al.  vs.  The  Co.Commissioners  of  I^on  Co.  etal. — Opinion  of  Court. 

y.  -■■■■■  ■  I  ■■  ,  ■■  .„ 

the  District  of  Columbia.  The  act  of  Congress  of  the  9th 
July,  1846,  submitted  the  question  of  a  retrocession  to  a 
vote  of  the  qualified  electors  of  that  county.  Virginia  had 
previously  enacted  a  law  signifying  her  willingness  to 
receive  back  the  county  whenever  the  Congress  of  the 
United  States  should  see  proper  to  retroceed  the  same. 
Congress  enacted  the  law  of  the  9th  July,  1846,  submit- 
ting the  question  of  retrocession  to  the  qualified  voters  of 
the  county,  providing  the  machinery  for  the  election,  and 
enacting,  that  if  a  majority  of  the  voters  should  be  against 
accepting  the  provisions  of  the  act,  it  should  be  void  and 
of  no  effect ;  but  if  a  majority  should  be  in  favor  of  accept- 
ing, then  it  should  be  in  full  forcfe;  and,  in  that  event,  it 
should  be  the  dutv  of  the  President  to  inform  the  Gover- 
nor  of  Virginia  of  the  result,  and  that  the  law  was  conse- 
quently in  force.  After  stating  the  facts  of  that  case,  the 
Supreme  Court  of  Pennsylvania  forcibly  remarks:  "Many 
of  the  most  profound  constitutional  lawyers  of  the  Union 
were  in  Congress  at  that  time,  and  the  State  of  Virginia 
never  hesitated  to  accept  the  retrocession,  because  the 
Congress  of  the  United  States  delegated  to  the  people  the 
decision  of  the  question.  This  act,  under  all  the  circum- 
stances, must,  therefore,  be  considered  high  authority  as  a 
precedent  in  the  development  of  the  constitutional  func- 
tions of  the  legislative  power/' 

It  was  further  objected  against  the  validity  of  the  act  of 
our  legislature,  that  by  the  terms  of  the  2 2d  section,  it 
was  provided  that  each  tax  payer  of  the  county  should  re- 
ceive a  remuneration  in  the  shape  of  stock  in  the  Railroad 
Company,  equivalent  to  the  amount  of  his  assessment,  and 
the  position  was  assumed  that  this  provision  was  a  clear 
infraction  of  the  1st  and  14th  clauses  of  our  "Declaration  of 
Eights"  which  were  intended  to  secure  to  the  citizen,  the 
right  "of   acquiring,  possessing   and   protecting  property." 


636  SUPREME  COURT. 


Gotten  et.  al.  vs.  The  Co.Commissionera  of  Jjeon  Co.  etal. — Opinion  of  Contt 

Fortunately  for  us,  this  is  not  a  point  now  for  the  first  time 
to  be  decided.  It  has  been  made  in  several  of  the  many 
Railroad  cases  which  have  arisen  in  the  States  of  the  con- 
federacy, and  has  uniformly  been  adjudged  in  favor  of  the 
law.  Without  indulging  in  an  argument  of  our  own  on 
this  point,  we  will  content  ourselves  with  short  extracts  from 
the  opinions  in  the  two  cases  of  "Police  Jury  vs.  succes- 
sion of  McDonough"  and  Talbot  vs.  Dent,  before  referred 
to  in  this  opinion. 

In  the  first  of  tlie  above  named  cases,  the  court  say:— 
"the  objection  made  to  tlie  law  upon  the  ground  that 
the  stock  subscribed  for  by  the  respective  police  juries 
is  to  go  to  the  tax  payers,  as  provided  in  section  4th,  seems 
to  us  untenable.  In  the  understanding  of  practical  men, 
surely  this  is  no  grievance.  Its  manifest  object  was  to  les- 
sen the  burden  of  the  tax-payer.  If  the  stock  should  prove 
worthless  it  imposes  no  additional  burden  upon  the  holder; 
it  involves  him  in  no  further  responsibility.  But  if  the 
stock  should  prove  valuable,  such  value  would  be  so  much 
taken  from  the  tax." 

In  the  case  of  Talbot  vs.  Dent,  the  Supreme  Court  of  Ken- 
tucky says — "It  is  true  it  is  somewhat  an  anomily  for  the 
governing  power  to  levy  a  tax  for  a  particular  purj)ose 
and  at  the  same  time,  in  a  measure,  reimburse  him  by  the 
transfer  of  the  thing  paid  for  by  that  tax ;  still  if  the  govern- 
ment were  under  a  valid  obligation  to  pay,  and  had  the 
right  to  meet  this  obligation  by  a  tax  upon  its  citizens,  a 
contribution  rateably  assessed  and  levied  for  this  public 
object,  upon  all  the  property  of  the  citizens,  would  not  lose 
its  character  of  a  tax,  nor  be  less  obligatory  upon  individ- 
uals, because  the  payment  of  it  would  entitle  them  respec- 
tively, to  corresponding  portions  of  the  thing  for  which  the 
government  had  contracted  the  debt  or  obligation,  for  the 
discharge  of  which  the  contribution  was  required."     These 


TEEM  AT  TALLAHASSEE.  1856.  637 


Gotten  et.  al.  r:  The  Co.CommlMlonen  of  Leon  Co.  etal. — Opinion  of  Court. 

views  are  so  logically  and  forcibly  expressed,  and  the  mat- 
ter placed  in  so  simple  a  light,  that  we  deem  it  a  work  of 
supererrogation  to  add  to  them. 

It  was  further  objected  at  bar  that  the  provision  con- 
tained in  the  22d  section  of  the  act  of  1855,  which  author- 
ized the  counties  to  issue  bonds  for  the  purpose  of  raising 
the  money  necessary  to  pay  for  the  stock  purchased,  was 
an  infraction  of  the  13th  clause  of  the  13th  article  of  the 
Constitution,  which  expressly  prohibited  the  General  As- 
sembly from  pledging  the  faith  and  credit  of  the  State,  to 
raise  funds  in  aid  of  any  corporation  whatsoever.  The  ar- 
gument was  this,  that  the  letter  of  the  clause  confined  the 
prohibition  to  the  State  only,  yet  its  spirit  made  it  appli- 
cable to,  and  equally  binding  upon  the  counties.  We  have 
before  declined  to  determine  how  far  a  restriction,  plainly 
applicable  to  the  exercise  of  power  by  the  Legislature,  shall 
be  taken  to  aifect  the  county,  but  for  the  sake  of  the  argu- 
ment are  willing  to  admit  the  position  assumed,  viz:  That 
all  the  restrictions  of  the  constitution  which  are  expressly 
applied  to  the  legislative  power  of  tlie  State,  are  equally  bind- 
ing upon  the  legislative  powers  of  the  counties.  With  the 
full  advantage  of  this  admission,  however,  we  do  not  see 
that  the  objection  urged  is  at  all  strengthened,  for  there 
is  nothing  in  the  provisions  of  the  section  referred  to  that 
authorizes  the  Board  of  County  Commissioners  to  "pledge 
the  faith  of  the  county  to  raise  funds  in  aid  of  any  corpo- 
ration whatsoever."  By  an  attentive  reading  of  that  sec- 
tion it  will  be  seen  that  the  bonds  therein  authorized  to  be 
issued,  are  not  intended  to  raise  funds  "in  aid  of  the  cor- 
poration,'' but  expressly  to  provide  the  means  by  a  dispo- 
sal of  the  same,  to  pay  for  the  stock  so  to  he  purchased, — 
And  it  is  equally  apparent,  that  the  authority  to  "pledge 
the  faith  and  resources  of  the  county,"  is  to  give  credit  to 
those  bonds  only,  and  not  for  the   benefit  of  the  company. 


638  SUPEEME  COUBT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  et.al. — Opinion  of  Court 

or  for  any  other  purpose  whatsoever.  We  think  therefore 
that  the  ohjection,  however,  forcible  it  might  be  in  the 
state  of  case  assumed,  does  not  apply  to  the  law  now  un- 
der consideration. 

We  have  thus,  at  some  length,  gone  over  the  several  ob- 
jections alleged  in  argument  against  the  validity  of  the 
particular  section  of  the  act  referred  to.  \Ve  have  given 
to  the  objections  and  to  the  arguments  in  support  of  them 
the  most  deliberate  consideration.  We  have  taxed  to  the 
uttermost  extent  all  our  powers  of  discrimination.  We 
have  resorted  for  light  to  all  of  the  decided  cases  within 
our  reach.  We  have  scrutinized  with  anxious  care  and 
attention  the  powerful  reasoning  of  the  many  able  jurists, 
whose  opinions  are  to  be  found  in  the  books  of  reports,  to 
discover,  if  we  might,  the  great  desideratum,  truth;  and, 
after  the  most  laborious  investigation,  we  are  constrained 
to  pronounce  the  particular  section  of  the  act  in  question 
to  be  perfectly  compatible  with  the  provisions  of  the  Con- 
stitution and  therefore  valid,.  If  we  should  have  erred  in 
this  conclusion,  it  will  present  an  extraordinary  instance 
of  a  most  singular  fatality  attending  the  adjudication  of  a 
great  constitutional  question;  for,  it  may  be  noted  as  a 
pregnant  fact,  that  as  often  as  the  questions  involved  in 
this  case  has  arisen  for  adjudication  they  have  received 
but  one  determination,  and  that  in  accordance  with  the 
conehision  arrived  at  in  this  case.  The  courts  of  Virginia, 
Massachusetts,  Connecticut,  Pennsylvania,  Ohio,  Ken- 
tucky, Tennessee,  Mississippi  and  Louisiana  all  hold  the 
same  uniform  language  upon  this  subject;  and  if  there  be 
a  single  adjudication  in  opposition  to  our  conclusion,  as 
announced  in  this  case,  we  have  failed  to  have  it  brought 
to  our  notice.  In  the  face  of  such  an  overwhelming  and 
imposing  array  of  authority,  it  would  indeed  have  been 
most  extraordinary,  even  if  our  own  reasoning  had  tended 


TEEM  AT  TALLAHASSEE,  1856.  639 

Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Court. 

to  conduct  U8  to  an  opposite  conclusion,  not  to  have  raised 
in  our  minds  a  serious  doubt  as  to  the  correctness  of  that  rea- 
soning; and  we  are  taught  by  the  lessons  hereinl)efore  in- 
culcated in  regard  to  the  appropriate  function  of  the  judi- 
ciary, that  whenever,  in  the  examination  of  a  great  constitu- 
tional question  involving  the  exercise  of  powers  by  a  co-or- 
dinate branch  of  the  government,  a  rational  doubt  arises  as 
to  the  validity  of  any  particular  act  of  that  department,  a 
proper  and  respectful  regard  and  deference  for  the  same 
would  dictate  an  affirmation  of  the  act.  In  the  beautiful 
and  forcible  language  of  an  eminent  jurist,  before  referred 
to,  "If  a  court,  in  such  a  case,  were  to  annul  the  law  while 
entertaining  doubts  upon  the  subject,  it  would  present 
the  absurdity  of  one  department  of  the  government  over- 
turning in  doubt  what  another  had  established  in  settled 
conviction,  and  to  make  the  dubious  constructions  of  the 
judiciary  outweigh  the  fixed  conclusions  of  the  General 
Assembly.'' 

In  order,  however,  to  break  the  force  and  weaken  the 
authority  of  the  decided  cases,  it  was  suggested  at  bar  that 
those  cases  were  adjudicated  under  constitutions  essen- 
tially differing  from  ours;  that  the  restrictions  upon  the 
legislative  power  to  be  found  in  our  Constitution  are  more 
stringent  than  those  imposed  by  any  of  the  Constitutions 
of  the  several  States  where  those  adjudications  have  been 
made,  and  that,  therefore,  they  ought  not  to  be  considered 
as  authoritv  in  this  ease. 

We  have  carefully  examined  the  several  State  constitu- 
tions alluded  to,  and  have  not  found  that  difference  to  ex- 
ist, which  is  contended  for.  In  the  majority  of  them,  we 
find  the  restraints  upcm  the  legislative  department  equally 
stringent,  with  those  imposed  by  our  own;  and  in  several 
of  them,  they  are  even  more  stringent. 

Let  the  decree  of  the  Chancellor  be  affirmed  with  costs. 


640  SUPEEME  COURT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leop  Co.  et.al. — Opinion  of  Court 

BALTZELL,  C.  J.,  delivered  the  following  dissenting 
opinion : 

Differing  with  the  majority  of  the  court  in  their  views 
expressed  in  tliis  case,  I  proceed  to  give  the  reasons  that 
operate  with  me  for  holding  the  adverse  opinion.  The 
county  of  Leon  has  imposed  a  tax  to  pay  a  subscription  of 
stock  to  this  company,  which  is  complained  of  as  uncon- 
stitutional. By  express  provision  of  the  Constitution,  the 
principles  established  in  regard  to  State  taxation  are  made 
to  apply  to  the  counties  when  imposing  taxes.  Art.  8, 
sec.  4,  Cons. 

Those  principles  are  declared  to  be  "equality  and  uni- 
formity in  the  mode  of  taxation." — Sec.  1.  2ndly,  "That 
no  other  or  greater  amount  of  tax  or  revenue  shall  at  any 
time  be  levied  than  may  be  required  for  the  necessary  ex- 
penses of  government" — Sec.  2.  Thirdly,  "No  money  shall 
be  drawn  from  the  treasury  but  in  consequeuce  of  an  ap- 
propriation by  law,  and  a  regular  statement  of  tlie  receipts 
and  expenditures  of  all  public  monies  shall  be  published 
and  promulgated  annually  with  the  laws  of  the  General 
Assembly.''— Sect.  3.  4thly,  "The  General  Assembly 
shall  not  pledge  the  faith  and  credit  of  the  State  to  rai?e 
funds  in  aid  of  any  corporation  whatever." — Act  13,  sec. 
13.  othly,  '^I'rivate  property  shall  not  be  taken  or  ap- 
plied to  public  use  unless  just  compensation  be  made 
therefor."— Art.  1  sec  14  6th.  "The  General  Asserablv 
shall  have  power  to  authorize  the  counties  and  incorpor- 
ated towns  of  this  State  to  impose  taxes  for  county  and 
corporation  purposes  respectively,  and  all  property  shall 
be  taxed  upon  the  principles  established  in  regard  to  State 
taxation." — Art.  8,  sec.  4. 

These  obviously  provide  a  system  and  mode  of  action 
for  the  government,  and  regulation  as  well   of   the   Legisla- 


TERM  AT  TALLAHASSEE,  1856.  641 

Cotten  cL  al.  n.  The  Co.Commlnionen  of  Leon  Co.  etal. — Opinion  of  Court. 

ture  as  of  cities  and  counties.  They  impose  upon  them 
a  duty  of  imperious  and  important  character.  They  are 
in  the  first  place,  before  imposing  a  tax,  to  ascertain  the 
"necessary  expenses"  to  which  the  State,  city  or  county 
may  be  subject,  so  as  not  to  levy  "any  other  or  greater 
amount  than  may  be  required.^*  When  collected,  the 
money  is  not  to  be  withdrawn  from  the  treasury  except  by 
appropriation;  and,  as  a  still  further  security,  they  are  all 
to  publish  statement  of  their  receipts  and  expenditures. 

It  is  not  required  of  me,  I  trust,  to  define  the  terms  ne- 
cessary expenses.  They  are  clearly  restrictive  to  an  au- 
thority confided.  They  are  terms  of  art,  phrases  well 
known  in  law  in  their  application  to  trustees  (the  relation 
and  capacity  which  the  Legislature  and  these  city  and 
county  officers  hold  to  the  people)  as  well  as  to  executors, 
guardians  and  other  officers.  And  their  familiar  use  is  in 
strict  accordance  with  their  legal  acceptation.  No  one 
confined  to  necessary  expenses  regards  himself  at  liberty 
to  expend  as  largely  as  he  would  if  relieved  from  such  re- 
straint. 

Passing  by  the  general  question  of  the  right  of  a  county 
to  construct  a  railroad,  to  be  discussed  hereafter,  the  ques- 
tion arises  whether  the  construction  of  this  railroad  is  a  ne- 
cessary expense  of  the  county  of  Leon  ?  If  it  be  so,  then 
the  law  is  in  strange  conflict  with  itself.  It  leaves  to  the 
option  of  a  majority  of  the  citizens  to  say  whether  the  ex- 
penses shall  be  encountered — ^not  that  they  are  necessary. 
Now,  this  very  option  and  choice  is  irreconcilable  with 
the  idea  of  necessary  expense.  If  it  was  a  fair  expense,  a 
necessary  expense  of  the  county,  there  was  no  option 
about  the  matter,  and  the  Legislature  should  have  di- 
rected peremptorily  the  discharge  of  the  duty,  and  in- 
deed, without  a  special  law,  the  county  authorities  should 
have  provided  for  it  under  the  general  authority  confided 


642  SUPREME  COURT. 


Gotten  et.  al.  ts.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Court 

to  them.  If  a  necessary  expense,  there  was  no  permission 
required,  no  sanction  needed.  Can  a  trustee  refuse  to 
meet  a  necessary  expense  of  the  trust  confided  to  him;  an 
executor  of  his  estate ;  a  guardian  or  parent  a  necessary 
expense  of  Ms  ward  or  child?  Is  it  at  the  option  of  any 
of  tliese  to  refuse  to  meet  a  necessary  expense,  to  provide 
for  or  reject  it  at  pleasure?  It  may  be  requisite,  in  case 
of  unnecessary  expenses,  to  ask  such  permission.  In  case 
of  necessary  expenses  there  is  none,  and  courts  invariably 
compel  their  allowance  and  payment. 

A  still  more  definite  enquiry  is  presented  on  this  point. 

By  referring  to  the  original  charter  of  this  company 
passed  in  1853,  we  find  that  they  have  authority  to  con- 
struct a  road  "from  the  city  of  Pensacola  or  any  other  point 
or  points  on  the  waters  of  the  Pensacola  Bay  in  Florida, 
and  running  thence  in  an  easterly  direction  to  the  western 
or  southern  boundary  line  of  the  State  of  Georgia.*'  By 
an  amended  charter  in  1855,  they  have  "power  to  build 
an  extension  of  their  road  to  a  junction  with  the  Florida, 
Atlantic  &  Gulf  Central  Railroad,  at  or  in  the  Wcinity  of 
Alligator,  Columbia  county,  and  in  case  of  their  failure  to 
construct  their  road  to  Alligator  by  the  time  the  Pensacola 
and  Georgia  Eailroad  constructs  its  to  that  point,  then  to 
the  most  practicable  route  to  Jacksonville  on  the  St.  John's 
river  with  an  extension  from  a  suitable  point  in  Columbia 
county  in  a  southern  or  southeasterly  direction,  to  a  suita- 
ble point  of  junction  with  a  road  which  may  be  built 
from  Amelia  Island,  on  the  Atlantic  to  the  water  of  Tampa 
Bay  in  South  Florida.  Also  an  extension  to  Crooked  Riv- 
er at  White  Bluff  on  Apalachicola  Bay  in  Middle  Florida, 
and  an  extension  to  the  waters  of  St.  Andrews  Bay  in 
west  Florida,  also  travel  roads  to  the  County  Sites  of  Jef- 
ferson, Gadsden,  and  Jackson  counties,  and  to  the  Alabama 


TERM  AT  TALLAHASSEE,  1856.  643 

Cotton  et  al.  vs.  The  Co.CommissioncrR  of  Leon  Co.  et.al. — Opinion  of  Court. 

line  from  Fiiitable  points  West  of  tlie  Alabama  river." — 
Now  will  it  be  said  that  the  construction  of  a  road  between 
the  points  here  designated,  (for  this  is  the  true  question  in 
the  case,)  is  a  necessary  expense  of  the  County  of  Leon. — 
It  is  not  perceived  what  necessity  there  is  of  a  citizen  of 
the  countv  of  Leon  to  have  a  road  to  and  from  these  vari- 
ous  point's  to  Pensacola,  to  the  Georgia  line,  to  Alligator,  to 
Jacksonville,  to  Tampa,  to  St.  Andrews  Bay,  to  Apalachi- 
cola  Bay,  and  to  the  Alabama  line.  Could  he  desire  to 
transport  himself  or  his  cotton  or  other  produce  over  sucli 
routes?  A  road  without  any  beginning  or  end — a  road 
with  its  work  commenced  in  the  middle,  pointing  by  it^ 
charter  for  its  termini  to  the  four  points  of  the  compass, 
but  with  no  distinct  indication  where  it  is  to  go,  where  to 
l>egin,  or  where  to  end.  And  this  is  a  necessary  expense 
to  a  county  having  already  without  taxation,  a  railroad  of 
only  20  miles  in  extent  to  the  Gulf,  giving  her  immediate 
and  direct  connection  at  all  seasons  of  the  vear  by  steam- 
boats  and  ships  with  every  part  of  the  civilized  world. — 
Having  unexampled  advantages  for  transportation  already 
secured,  it  is  yet  a  necessary  expense  to  get  other  com- 
munication, more  expensive  and  more  distant. 

The  expense  of  the  construction  of  this  road  to  these 
points,  will  probably  reach  10  millions  of  dollars,  yet  to 
meet  this  necessary  expense,  the  county  has  subscribed 
$100,000,  a  hundredth  part  of  the  sum  required. 

If  a  necessary  expense  of  the  county,  why  is  it  that  she 
does  not  execute  the  work  through  her  own  officers?  Why 
is  it  not  her  enterprise?  Why  does  she  not  control,  direct, 
supervise  and  manage  it?  Why  not  employ  agents  and 
workmen,  pay  and  discharge  them?  If  a  necessary  expense 
of  the  county,  there  is  a  commensurate  liability.  The  very 
fact  that  others  own  the  road  and  its  appendages,  have  the 
superintendance,  control,  management  and  direction  with- 


644  SUPREME  COURT. 


Gotten  et.  al.  vs.  The  Co.CommlBsioners  of  Leon  Co.  etal. — Opinion  of  Court 

out  responsibility  to  the  county  authorities  for  disbursement 
of  the  funds,  or  failure  to  accomplish  the  work,  or  for  em- 
ploying incompetent  agents,  shows  that  it  is  an  expense  of 
others  and  not  a  necessary  expense  of  the  County  of  Leon. 

To  sustain  the  constitutionality  of  the  law,  the  majority 
of  the  court  quote  from  Kents  commentaries  an  interpre- 
tation of  the  word  "necessary."  This  is  not  the  logic  of 
Chancellor  Kent.  The  whole  passage  is  taken  almost  verba- 
tim from  the  opinion  delivered  by  the  Supreme  Couri;  of 
the  TJ.  S.  in  the  case  of  McCullough  vs.  the  State  of  Mary- 
land. There,  the  question  was  as  to  the  constitutionality 
of  the  act  of  congress  establishing  the  Bank  of  the  United 
States,  which  depended  upon  the  grant  made  by  the  Con- 
stitution of  the  power  to  Congress  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  laws,"  such  among  others  as  to  regulate  com- 
merce with  foreign  nations — to  declare  war,  maintain  a  na- 
vy, &c.  It  was  in  referonce  to  this  grant,  the  Supreme  Court 
held  that  Congress  was  not  confined  in  the  choice  of  means, 
and  that  ,the  words  necessary  means  such  as  they  thought 
proper  to  adopt.  But  tlie  Chief  Justice  qualified  the  opin- 
ion with  the  following  remarkable  language  to  which  we 
invite  particular  attention :  "The  clause  is  placed  among 
the  powers  of  Congress  not  among  the  limitaiions  on  these 
powers/'  "Its  terms  purport  to  enlarge  not  to  diminish  the 
powers  vested  in  the  Government.  It  purports  to  be  an  ad- 
ditional power  not  a  restriction  on  those  already  granted." 
Again,  "if  their  intention  had  been,  by  this  clause,  to  re- 
strain the  free  use  of  means  which  might  otherwise  have 
been  implied,  that  intention  would  have  been  inserted  in 
another  place  and  would  have  been  expressed  in  terms  re- 
sembling these,  "In  carrying  into  execution  the  foregoing 
powers,  and  all  others,  £c,,  no  laws  shall  he  passed  but 
such  as  are  necessary  and  proper/'       Had   the   intention 


\ 


TERM  AT  TALLAHASSEE,  1856.  645 

Gotten  et.  al.  vs.  The  Co.Commissionera  of  Leon  Co.  etal. — Opinion  of  Court. 

been  to  make  this  clause  restrictive  it  would  unquestiona- 
bly have  been  so  in  form  as  well  as  in  effect/'  McCullough 
vs.  State  of  Maryland,  4  Cond.  Rep.  481. 

Except  an  express  decision  upon  the  case  itself  no  lan- 
guage could  have  been  more  appropriate,  none  more  deci- 
sive of  the  very  points  at  issue.  Here  we  have  limitation, 
restriction  and  diminution.  The  Florida  Convention  seems 
indeed  to  have  assumed  this  identical  position  as  if  acting 
on  the  very  suggestion,  only  presenting  it  in  more  definite, 
explicit,  and  emphatic  shape.  For  whilst  the  Chief  Justice 
admits  that  if  the  words  "no  laws  shall  be  passed  but  such 
as  are  neoessar/'  had  been  used,  they  would  have  limited 
and  controlled  the  power,  the  constitution  uses  language 
more  decided  even,  "no  greater  amount  of  tax  shall  be 
levied  tlian  may  be  required  for  the  necessary  expense  of 
government;"  thus  designating  in  precise  language,  not 
only  the  power  to  he  used,  but  the  special  object  in  ref- 
erence to  whicli  it  phall  be  used,  to  which  object  it  is  strictly 
limited  and  confined. 

I  next  prceeed  to  enquire  as  to  the  operation  of  the 
clause  of  tlie  constitution  marked  as  the  4th,  "that  the 
General  Assembly  shall  not  pledge  the  faith  and  credit 
of  the  State  to  raise  funds  in  aid  of  any  corporation  what- 
ever." 

The  object  of  this  is  very  clear,  and  its  design  very  evi- 
dent. By  preventing  the  State  from  creating  debts  or 
giving  its  credit  in  aid  of  a  corporation,  the  necessity  of 
imposing  taxes  on  the  citizens  to  pay  such  debts  and 
thereby  redeem  its  pledge  and  sustain  its  credit  is  avoided. 
This  principle  is  clearly  established  as  to  the  State  taxation, 
and  we  have  already  seen,  expressly  applied  to  the  coun- 
ties and  cities.  If  the  question  of  the  execution  of  bonds 
and  pledging  the  resources  of  the  counties  were  for  adju- 
dication, it  would  be  difficult  to  escape  the  operation  of 
43 


646  SUPREME  COUET. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Court 

this  provision.  As  it,  however,  does  not  raise  and  is  not 
presented  by  the  record,  I  decline  the  expression  of  an 
opinion,  content  to  wait  until  judicial  action  may  render 
this  an  appropriate  and  lawful  duty. 

The  fifth  provision,  "that  private  property  shall  not  be 
taken  and  applied  to  public  use,  unless  just  compensation 
be  made  therefor,"  has  great  weight  with  me,  and  but  for 
the  authorities  holding  a  different  view,  I  should  regard  it 
as  conclusive.  That  the  property  of  the  citizen  is  taken 
by  force  of  tliis  law  is  very  clear.  It  is  also  to  be  applied 
to  some  use,  either  public  or  private.  It  is  to  be  given  to 
the  corporation,  so  that  that  question  arises  whether  the 
corporation  is  public  or  private.  The  distinction  between 
public  and  private  corporations  is  well  established,  and 
has  reference  to  their  powers  and  the  purposes  of  their  cre- 
ation. "They  are  public  when  created  for  public  purposes 
only,  connected  with  the  administration  of  the  government, 
and  where  the  whole  interests  and  franchises  are  the  ex- 
clusive property  and  domain  of  the  government.  Over 
these  the  Legislature  has  power,  not  limited  by  the  Con- 
stitution, to  impose  such  modification,  extensions  or  re- 
straints as  the  general  interests  and  public  exigencies  may 
require,  without  infringing  private  rights.  All  corpora- 
tions invested  with  subordinate  powers  for  public  pur- 
poses fall  within  this  class  and  are  subject  to  legislative 
control.  All  other  corporations  are  private.  They  exist 
by  legislative  grants,  conferring  powers,  rights  and  privi- 
leges for  special  purposes.  These  grants  are  essentially 
contracts  which  the  Legislature  cannot  impair  or  change 
without  the  consent  of  the  corporation."  Ang.  &  Ames' 
Corp.,  927-'28 ;  Dart.  Col.  vs.  Woodward,  4  Wh.  578. 

This  corporation  is  then  a  private  one,  and  money  or 
property  of  the  citizen  taken  and  applied  to  its  use  is  appro- 
priated   to    a    private    use,    and  thus    a  question  of  most 


TERM  AT  TALLAHASSEE,  1856.  647 


Gotten  et.  al.  vs.  The  Co.Commissloners  of  Leon  Co.  et.al. — Opinion  of  Court. 

Berious  import  arises,  whetlier  the  property  of  the  citizen 
may  be  taken  by  the  State  and  applied  to  the  use  of  some 
other  private  party.  On  this  subject  the  highest  tribunals 
of  the  country  and  most  eminent  jurists  have  expressed 
themselves  in  emphatic  language.  The  Supreme  Court  of 
the  United  States  say  "that  government  can  scarcely  be 
deemed  to  be  free  where  the  riglits  of  property  are  left 
solely  to  the  legislative  body  without  any  restraint.  The 
fundamental  maxims  of  a  free  government  seem  to  require 
that  the  rights  of  personal  liberty  and  private  property 
should  be  held  sacred.  At  least  no  court  of  justice  in  this 
country  would  be  warranted  in  assuming  that  tlie  power 
to  violate  and  disregard  them — a  power  so  repugnant  to 
the  common  principles  of  justice  and  civil  liberty — lurked 
under  any  general  grant  of  legislative  authority  or  ought 
to  be  implied  from  any  general  expressions  of  the  will  of 
the  people"  2  Peters  656  It  has  never  been  allowed 
(says  a  distinguished  member  of  the  Court  of  Errors  of 
New  York)  to  be  a  rightful  attribute  of  sovereignty  in  any 
government  professing  to  be  founded  on  fixed  laws,  how- 
ever despotic  the  form  of  government  might  be,  to  take 
the  property  of  one  individual  or  subject  and  bestow  it 
upon  another.  The  possession  and  exertion  of  such  a 
power  would  be  incompatible  with  the  nature  and  object 
of  all  government;  for,  it  being  admitted  that  a  chief  end 
for  which  government  is  instituted  is  that  every  man  may 
enjoy  his  own,  it  follows  necessarily  that  the  rightful  exer- 
tion of  a  power  by  the  government  taking  arbitrarily  from 
any  man  what  is  his  own,  for  the  purpose  of  giving  it  to 
another,  would  subvert  the  very  foundation  principle  upon 
which  the  government  was  organized  and  resolve  the  poli- 
tical community  into  original  chaotic  elements.''  18  Wen- 
dell, 56. 

Now,    what    great  enormity,    under    the  pretext  of    legal 


G50  SUPREME  COUET. 


Gotten  et.  al.  vs.  The  Co.Commissloners  of  Leon  Co.  etal. — Opinion  of  Coort 


McCants,  Partridge,  Read  of  Leon,  Robbiiis,  Roache,  San- 
chez, Seinmes,  Tliompson,  Watts,  Webb,  Westcott,  White, 
Williams,  Wood,  Wright  and  Wyatt— 30. 

So  it  was  not  stricken  out,"  p.  66. 

Mr.  Read  of  Ijeon  gave  notice  that  on  the  third  reading 
of  this  article  he  should  propose  to  amend  the  5th  section 
by  adding  "unless  by  the  concurrent  vote  of  two-thirds  of 
the  General  Assembly." 

"Mr.  Thompson  moved  to  amend  the  7th  section,  (nov 
section  4  of  article  8,)  by  striking  out  in  the  4th  line,  the 
words  "according  to  its  value"  which  was  concurred 
in;  page  60.  The  section  stood  in  the  report,  "all  property 
shall  be  taxed  according  to  its  value,  upon  the  principles 
established  in  regard  to  State  taxation."  " 

The  necessity  of  such  action  on  the  part  of  the  conven- 
tion is  to  be  found  in  the  history  of  the  times,  showing  con- 
clusively that  it  did  not  originate  in  a  mere  abstract  theory 
of  government,  but  from  imperious  necessity,    induced   by 
the  results  .of  bitter    experience.      The    years    1835,-6,-7,-8, 
were  periods  of  unparalleled  suffering,  embarrassment  and 
distress  throughout  the  United  States.     The  several  States 
of  the  Union  with    scarcely    an    exception,    were     involved 
through  extravagant  appropriations,  wasteful  and  improvi- 
dent expenditures,  augmented  by  the  aid  afforded  through 
Legislative  action  to  individual    and    corporate    enterprise. 
Their   indebtedness    on   this    account   amounted  to  millions 
of  dollars,  threatening  bankruptcy  to  them  and  ruin  to  in- 
dividuals.    The  territories  did  not  escape  the  common  ca- 
lamity.    Florida,   with   her   limited    means,    sparse   popula- 
tion and  limited  resources    having    scarcely    the    semblance 
of  a  treasury   had    issued    bonds   in  favor  of  Banks   to  the 
amount  of  near  four  millions  of  dollars,  pledging  her  faith, 
credit  and  resources,  for  their  redemption. 

All  these  events  and  consequences    had    occurred    before 


TEBM  AT  TALLAHASSEE,  1856.  651 

Cotten  et.  al.  ts.  The  Co-Commissioneni  of  Leon  Co.  et.al. — Opinion  of  Coart. 

the  convention  assembled,  had  been  the  subject  of  discus- 
sion through  tlie  press,  in  the  Territorial  Legislature  and 
before  the  people,  and  had  entered  largely  into  the  can- 
vass for  delegates  to  the  constitutional  convention.  Its 
journals  show  that  body  was  occupied  with  this  sub- 
ject, which  more  than  any  other  engrossed  its  attention.  To 
prevent  by  timely  precaution,  directed  to  the  evil,  the  re- 
currence of  such  consequences  is  the  manifest  spirit,  pur- 
pose and  design  of  the  provisions  we  have  cited.  Whether 
the  object  has  been  effected  by  the  remedy  proposed  de- 
pends upon  the  just  construction  of  these  provisions,  some 
of  which  remain  yet  to  be  considered. 

It  has  already  been  seen,  that  by  the  Constitution  "the 
General  Assembly  had  power  td  authorize  the  several 
counties  and  incorporated  towns  in  this  State  to  impose 
taxes  for  county  and  corporation  purposes  respectively, 
and  all  property  shall  be  taxed  upon  the  principles  estab- 
lished in  regard  to  State  taxation."    Article  8,  sec.  4. 

This  clause  is  peculiar  in  its  provisions — special,  not 
general — is  not  a  grant  of  power  merely,  but  a  grant  con- 
nected with  a  designation  of  the  mode  and  manner  of  its 
exercise  and  of  the  very  object  and  purpose  for  which  it  is 
to  be  used.  "The  Legislature  shall  authorize  the  counties 
to  impose  taxes;" — not  borrow  money — not  issue  bonds — 
not  pledge  the  faith  and  resources  of  the  county.  Nor  is  this 
grant  suflBcient  in  affording  the  means  to  accomplish  all  the 
purposes  for  which  it  was  designed.  It  was  fully  adequate  and 
undoubtedly  sufficient,  through  economy  and  prudence  in 
the  administration  of  the  local  affairs  of  the  county,  to  at- 
tain the  end  desired,  and,  beyond  this,  a  further  object  of 
great  concern — to  prevent  waste  extravagance  and  profli- 
gacy in  expenditures  This  economy  and  prudence  may 
be  insured  by  strictly  confining  the  power  of  taxation  to 
Becessary  expenses  but  to  authorize  or  permit  debts  to  be 


652  SUPBEME  COUKT. 


Gotten  et  al.  vs.  The  Co.  Commissioners  of  Leon  Co.  etal. — Opinion  of  Court. 

incurred  or  loans  to  be  contracted  would  inevitably  lead  to 
the  very  result  which  it  was  the  anxious  wish  of  the  Con- 
vention to  prevent  and  avoid. 

Nor  can  the  power  to  borrow  money  be  fairly  inferred 
from  a  grant  to  impose  taxes.  This  latter  power  "to  lay 
and  collect  taxes^  duties,  imposts  and  execises,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States"  was  expressly  given  to  Con- 
gress by  the  framers  of  the  American  Constitution,  yet  the 
power  "^0  borrow  money  on  the  credit  of  the  United 
States"  was  added.    Sec.  8,  Con.  U.  S. 

If  not  admitted,  or  even    regarded    as   doubtful,    in   the 
case  of  a     government   of  the   vast  powers   of  the  United 
States,  how  can  such  a  power  be  implied  for  a  mere  cor- 
porate functionary,  intrusted  with  subordinate  duties   onlji 
almost  wholly  ministerial  and  executive  in  their  character, 
indeed   but   slightly   elevated    beyond'  those   of   a   commis- 
sioner of  public  roads.    That  the  power  would  result  as  an 
incident — as  in  the  case  of  the  Legislature  of  a  state,  unre- 
stricted in  its  high    duties    by    constitutional  regulation — ^ia 
certainly  unsupportable   on  any   ground   of  right,    reason 
principle   or   authority.    The  right  to  borrow  and  make  ob- 
ligations is  the  act  of  a  principal,  not  of  an  agent.     To  give 
to    thcFc    functionaries    such    power  by    implication,    is   to 
alter  and  change    at   once   the  structure    and    character  of 
their  olTice    and    its    functions.       The   wand    of    a      necro- 
mancer Fcarcely  effects  greater,  more  wonderous  and  mar- 
vellous results.       Instead  of  being  charged  with  the  raising 
a  few  hundred  dollars  annually,  for  repairs  of  court-houses, 
jails,    bridges,    &c.,    these    authorities    at    once    become   a 
manufactory  of    bonds    creating    debts    to    the    amount   of 
hundreds  of  thousands  of  dollars,  for  which  the  property  of 
the  citizens  is  mortgaged  for  payment.    Surely  there    is    no 
hazard  in  saying  that    the    Convention    never    contemplated 


TERM  AT  TALLAHASSEE,  1856.  653 


Gotten  et  al.  vs.  The  Co-CommlMionera  of  Leon  Co.  et.al. — Opinion  of  Coart. 

nor  authorized  such  action,  and  the  language  used  by  them 
gives  neither  warrant  nor  authority  for  its  exercise. 
*  Passing  from  this  position,  we  perceive  that  the  tax  im- 
posed by  a  county  must  be  for  a  county  purpose.  Is  the 
construction  of  this  road  a  county  purpose  of  the  county  of 
Leon?  The  court  very  frankly  admit  that  the  term  "coun- 
ty purpose,'*  as  understood  by  the  convention,  had  refer- 
ence to  "the  erection  of  court-houses  and  jails,  the  open- 
ing and  maintaining  of  thoroughfares,  by  opening  roads, 
building  bridges  and  causeways,  and  keeping  the  same  in 
repair,  licensing  and  regulating  ferries  and  toll-bridges," 
&c.,  &c.,  yet  say  "that  the  counties  should  not  be  pre- 
cluded from  availing  themselves  of  the  benefits  resulting 
from  the  most  magnificent  discovery  of  the  age."  Con- 
ceding that  on  the  score  of  utility,  they  should  have  this 
power,  this  by  no  means  establishes  the  constitutional 
right  to  it.  If  the  convention  did  not  give  the  power, 
how  is  it  derived,  the  convention  alone  being  competent  to 
grant  it  and  the  constitution  the  authority  under  whicli 
it  must  be  exercised?  Can  it  be  that  the  Legislature  is 
authorized  to  confer  the  power  and  the  court  to  sustain  it, 
imder  the  vague  allegation  that  the  counties  should  "not 
be  precluded  from  its  exercise  ?" 

To  allow  the  power,  is  indeed  to  amend  the  constitution 
BO  as  to  give  the  counties  in  addition  to  their  ordinary  func- 
tions the  right  to  tax  "to  secure  the  benefits  resulting  from 
magnificent  discoveries."  But  there  is  not  plausibility 
even  in  such  position.  Railways  and  roads  were  in  ex- 
istence in  the  early  part  of  the  seventeenth  century.  The 
application  of  steam  with  success  to  carriages,  which  is  the 
important  matter  as  far  as  this  case  is  concerned,  was  con- 
ceived at  a  later  period,  in  1784.  Previous  to  this  time 
animal  power  had  been  used  on  such  roads.  Tlie  Kailroad 
from  Tallahassee  to  St.  Marks  had  been  in  operation  some 


654  SUPREME  COUET. 


Gotten  et.  al.  vs.  The  Co. Commissioners  ot  Leon  Co.  etal. — Opinion  of  Court 

■  II  — ■  — " 

time  before  the  session  of  the  convention.  There  is  a  con- 
sideration beyond  this.  How  can  it  be  maintained  that  a 
discovery  in  mechanics,  repeals  and  overturns  an  impor- 
tant constitutional  principle,  nay  a  positive  and  peremptory 
restriction  and  denial  of  power?  This  would  be  in  effect 
to  make  discoverers  in  science  or  mechanics,  the  framers 
of  the  fundamental  law,  and  invested  with  the  large  power 
of  its  amendment.  The  court  does  not  see  why  if  a  county 
can  construct  a  common  road  "this  particular  species  of 
thoroughfare,  is  withdrawn  from  tlie  interpretation  of  the 
phrase  county  purposes."  With  due  deference,  this  pre- 
sents a  very  imperfect  view  of  the  subject.  It  is  not  the 
power  to  make  a  road  that  is  complained  of.  This  is  but 
one  of  very  many  means  to  an  end  and  object,  that  object 
being  the  transportation  of  freight  and  passengers  for 
pay,  not  by  the  county,  but  by  private  individuals  using 
the  money  of  the  people  of  the  county.  The  county  author- 
izes this  company  to  use  the  means  raised  by  taxation,  for 
tlie  construction  of  the  road,  the  making  of  warehouses,  vie, 
the  purchase  of  cars  for  passengers  and  freight,  the  em- 
ployment of  agents  and  superintendents,  to  make  the  road 
and  use  it  afterwards  for  freiglit,  &c.  A  city  may  pave  her 
streets  with  boards,  iron,  or  stone,  so  that  the  transporta- 
tion of  freight  or  passengers  may  be  as  easy  as  on  a  Rail- 
road. She  may  even  make  a  railroad  in  all  her  streets. 
Can  she  purchase  and  own  cars  and  locomotives  and  wag- 
ons to  carry  and  transport  freight  and  passengers  for  pay? 
When  the  Cumberland  road  was  constructed  by  Congress 
no  one  dreamed  of  proposing  to  have  agents  to  run  stages 
and  wagons  by  government.  Obviously  tnis  is  a  private 
occupation,  and  a  franchise  and  right  as  dear  and  as  much 
entitled  to  regard  as  any  other  under  the  constitution.  The 
duty  of  the  government  is  to  protect  the  citizen  in  his  oc- 
cupation, not  destroy  it  by  setting  up  a  rival  interest.      A 


TERM  AT  TALLAHASSEE,  1866.  655 


Gotten  et  al.  vs.  The  CoXommlssioners  of  Leon  Co.  etal. — Opinion  of  Court. 

planter  having  cotton  or  other  produce  to  export,  a  mer- 
chant with  goods,  has  a  clear  and  indisputable  right  to  his 
own  mode  of  transportation,  to  his  own  wagons,  and  can- 
not be  forced  under  the  pretext  of  taxes,  assessed  in  sup- 
port of  government,  to  buy  other  means  of  conveyance  to 
belong  to  others,  and  to  be  used  to  the  exclusion  of  his  and 
maintained  at  his  cost  and  expense. 

No  man  in  our  free  country,  however  limited  his  means, 
would  withhold  his  proportionate  contribution  from  the 
support  of  government.  This  sum  is  paid  by  him  witli 
cheerfulness  and  pride  as  the  price  of  personal  security, 
the  protection  of  liberty,  property  and  life — a  tribute 
freely  rendered  in  evidence  of  the  high  estimation  in 
which  the  citizen  holds  constitutional  rights  and  the  bene- 
fits and  blessings  of  free  government.  This  sentiment  it 
is  certainly  the  policy  of  all  governments  to  cherish  as  the 
surest  guaranty  of  the  loyalty  of  the  citizen  and  of  its  own 
stability. 

The  subject  of  county  purpose  has  yet  another  aspect. 
The  direction  in  which  the  road  is  to  be  constructed  agree- 
ably to  the  charter  has  already  been  adverted  to.  Fairly 
considered,  it  would  seem  to  be  the  work  and  purpose  of 
the  State,  and  not  of  a  county,  and  especially  of  the 
county  of  Leon.  Its  extent,  in  its  boundary,  is  only  about 
thirty  miles — through  the  State  not  less  than  five  hundred. 
Its  cost  from  four,  five  to  ten  millions — ^utterly  beyond 
the  means  of  the  county — the  direction  of  the  road  utterly 
at  variance  with  any  purpose  of  the  county  of  Leon.  If 
her  commerce  is  desired  to  go  to  Fernandina,  a  road  will 
not  be  wanted  to  the  Georgia  line.  If  to  Pensacola,  not  to 
the  Alabama  line,  and  so  as  to  other  points.  There  may 
be  design  to  build  a  road  somewhere — to  some  of  these 
points — in  some  direction — but  I  cannot  feel  myself  justi- 
fied in  asserting  that  the. road  indicated  by  the  charter  is 


656  SUPBEMS  GOUBT. 


Gotten  et  al.  tr.  The  Co.Commi88lonera  of  Leon  Co.  etal. — Opinloa  of  Court 

a  purpose  of  the  county  of  Leon,  in  the  sense  contemplated 
by  the  Constitution.  Nor  is  it  suflScient,  in  the  view  I. 
take  of  the  subject,  that  some  part  of  the  road  may  be  con- 
structed, or  that  a  road  may  be  constructed  within  the 
limits  of  Leon  county.  The  subscription  is  for  the  build- 
ing of  the  road  authorized  by  the  charter,  and  there  is  no 
restriction  upon  the  power  of  the  directory  to  use  the 
money  of  the  people  of  Leon  at  one  place  more  than  an- 
other. They  can  apply  it  at  Pensacola,  at  St.  Marks,  at 
some  point  on  the  Alabama  or  Georgia  line,  at  St.  An- 
drews Bay,  or  elsewhere,  as  they  please. 

But  it  is  contended  that  the  majority  of  the  county,  hav- 
ing by  their  vote  sanctioned  this  assessment,  this  should 
be  held  conclusive.  If  the  law  is  prohibited  by  the  Con- 
stitution, as  we  think  has  already  been  established,  the 
sanction  of  all  the  people  and  all  the  authorities  of  govern- 
ment, except  in  the  mode  prescribed  by  this  instrument 
will  not  avail.  This  is  the  very  essence  of  a  constitutional 
form  of  government.  "A  Constitution  is  a  form  of  gov- 
ernment instituted  by  the  people  in  their  sovereign  ca- 
pacity, in  which  just  principles  and  fundamental  law 
is  established.  It  is  the  supreme  will  of  the  people, 
permanent  and  fixed  in  their  original  unlimited  and 
sovereign  capacity,  and  in  it  are  determined  the  condi- 
tions, rights  and  duties  of  every  individual  of  the  commu- 
nity. From  the  decrees  of  the  Constitution  there  is  no 
appeal ;  for  it  emanates  from  the  highest  source  of  power, 
tlie  sovereign  people.  Whatever  condition  is  assigned  to 
any  portion  of  the  people  by  the  Constitution  must  neces- 
sarily be  inevitably  fixed,  however  unjust  in  principle  it 
may  be,  until  revoked  by  the  same  sovereign  power.  A 
legislative  act  is  the  will  of  the  Legislature,  and  the  Con- 
stitution is  their  commission,  and  they  must  act  within  the 
pale  of  their  authority.*'    Smith  Com.  on  the  Con.,  313. 


TERM  AT  TALLAHASSEE,  1856.  657 

Cotten  ftt.  al.  ▼■.  Tbe  Co.CommiMlonera  of  Leon  Co.  etal. — Opinion  of  Court. 

M  »         II  ■  = 

To  say  that  the  people  of  Leon  county,  even  in  a  matter 
of  their  own  exclusive  interest,  can,  by  mere  vote,  alter 
andi  change  or  disregard  the  paramount  law  is  to  give  to 
them  a  power  which  the  people  of  the  entire  State  do  not 
possess  when  exercised  in  this  form. 

It  was  admitted  in  argument,  and  the  majority  of  the 
court  in  their  opinion  do  not  contest  the  concession  that 
the  Legislature  of  the  State  cannot  rightly  exercise  such 
power,  cannot  issue  bonds  for  such  purpose,  nor  impose  a 
tax  of  the  kind.  It  is  said  to  be  different  with  the  coun- 
ties and  cities.  If  the  provisions  of  the  Constitution  on 
the  subject  were  referable  alone  to  the  State,  this  would 
of  itself,  in  my  mind,  raise  an  insuperable  objection 
to  the  exercise  of  the  power  by  the  counties.  What !  the 
State  may  not  tax  and  yet  the  counties  may!  The  State 
may  nSt  issue  bonds,  yet  may  impart  a  power  she 
does  not  possess!  The  grand  council  of  the  whole  State — 
entrusted  with  the  high  powers  of  sovereignty,  of  life  and 
death — ^with  the  protection  of  life,  liberty  and  property — 
cannot  approach  the  citizen  with  a  demand  in  the  shape  of 
tax  for  such  purpose,  but  a  county  commissioner  may, 
and  so  may  a  corporation!  The  State  cannot  use  her 
sovereign  power  through  her  sheriff  and  posse  comitatus, 
her  military  with  the  sword  and  musket,  to  collect  for  such 
purpose— cannot  punish  the  citizen  for  resisting  the  col- 
lection of  such  tax — but  a  county  and  city  officer  may!  A 
whole  may  not  do  an  act,  but  a  mere  fragment  may!  An 
inferior  may  be  trusted,  the  superior  may  not!  It  is  thus 
a  power  is  given  to  the  less  which  was  denied  the 
jpreater,  virtually  making  the  parts  superior  to  the  whole. 
Extravagance,  waste,  oppression  and  corruption,  perver- 
Bion  of  the  fundamental  law  of  the  principles  of  justice 
and  good  government  may  be  tolerated  in  the  one,  but  not 
in    the   other.       Such    is    the  very  insecure  and    unstable 


658  SUPREME  COURT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  et.al. — Opinion  of  Court 

■*■-  ^—    ■■■■■■  ■  ■■■»!  ■  I  ■■II  ■■-■■■■  ■  ■■■■  .  ■■■»    ■^■^^^■^—W ■» 

foundation  upon  which  such  propositions  rest  for  their  sup- 
port. 

I  will  not  offend  the  memory  of  the  departed,  nor   depre- 
ciate tlie  worth  of  the  living,  by  presuming  that  whilst  the 
convention  imposed  the  most    rigorous    constitutional    res- 
traints upon  the  legislative  department  of  the  government  in 
tlie  assumption  of  unlimited  sovereignty,    of    which    that 
body    might    otherwise    have    been    the    repository,    that 
yet    they    reposed    this  high    prerogative    in    subordinate 
authorities,  in  nearly  a  hundred  petty  sovereignties  to  exer- 
cise this  very  power  in  a  far  more  exceptionable  and  dan- 
gerous form  and  thereby  to  involve  the  community  in  the 
very  injurious  consequences  which  they  had  so  anxiously  en- 
deavored to  avoid.     No!  having   been  a    member    of   that 
body  and  a  witness  to  the  patriotism  and  intelligence  of 
my  contemporaries,   far  be   it  from   me   to   say   thaf  they 
failed,  utterly  and  entirely  in  the  accomplishment  of  one 
of  their  chief  aims — a  main  object  and  end  of  their  exer- 
tions.    Although  opposed  at  the  time  to  the  action  of  the 
majority,  I  will  yet  do  justice  to  their  sagacity  and  fore- 
sight by  admitting  my  own  mistake  in  the  correct  applica- 
tion of  the  great  principles  they  established. 

The  only  possible  ground  upon  which  such  power  can 
be  supported  is,  that  the  provisions  quoted  in  reference  to 
State  taxation,  are  not  principles  of  the  constitution. — 
Yet  how  utterly  baseless  is  such  position.  Why  were  they 
inserted  in  the  constitution  unless  as  rules  of  government, 
as  guides,  as  the  fundamental  law?  They  are  in  the 
very  terms,  and  in  tlie  language  of  provisions,  designed  for 
the  protection  of  the  liberty  and  property  of  the  citizen 
from  the  earliest  dawn  of  civil  liberty.  "No  freeman  shall 
be  deprived  of  his  life,  liberty  or  property  but  by  the  law 
of  the  land,"  and  the  bill  of  rights  of  the  constitution,  the 
great  Magna  Charta  of  the  State,  has  twenty-five  of  these 


TERM  AT  TALLAHASSEE,  1856.  659 


Gotten  et  al.  vs.  The  Co.Commisslonera  of  Leon  Co.  etal. — Opinion  of  Court. 

provisions,  mostly  negative  and  restrictive  in  their  charac- 
ter, like  the  clauses  under  consideration. 

It  is  very  obvious  that  the  court  has  considered  itself 
bound  by  decisions  made  in  other  States  which  they  des- 
ignate as  "an  imposing  array,  indeed,  as  overwhelming 
authority."  A  more  careful  consideration  of  these  would,  I 
respectfully  submit,  have  relieved  the  case  from  this  difficul- 
ty. The  decisions  quoted  are  based  upon  the  absence  of 
restrictions  in  the  Constitutions  of  the  States  to  impair  or 
lessen  the  general  grant  of  legislative  power. 

The  decision  in  Connecticut  is  a  sample  of  them  all. — 
The  court  says  "we  have  been  cited  to  no  express  consti- 
tutional provision  with  which  the  resolution  under  consid- 
eration is  supposed  to  conflict,  except  it  be  article  1,  section 
2,  of  the  State  Constitution,  the  property  of  no  person 
shall  be  taken  for  public  use  without  just  compensation 
therefor;"  15  Connecticut,  501.  So  in  Kentucky,  "it 
would  be  difficult,  perhaps  impossible  to  define  tlie  extent 
of  the  Legislative  power  of  the  State  unless  by  saying,  that 
BO  far  as  it  is  not  restricted  by  the  higher  law  of  tlie  State 
or  Federal  Constitution,  it  may  do  anything  wliich  can  be 
effected  by  means  of  a  law,"  p.  22,  Again,  "we  find  no 
clause  or  principle  in  the  Constitution  which  can  be  brouglit 
to  l)ear  directly  in  restraint  of  this  power,  (the  Legislative,) 
but  that  which  declares  tliat  no  man's  property  shall  be  taken 
for  public  use,  without  his  consent,  unless  just  compensa- 
tion be  made,  &c."  Nor  is  this  without  qualification. 
"The  limit  imposed  to  this  clause  of  the  Constitution  can 
only  consist  in  the  discrimination  to  be  made  on  what  may 
with  reasonable  plausibility  be  called  a  tax,  and  for  which 
it  may  be  assumed  that  the  objects  of  taxation  are  regarded 
by  the  Legislature  as  forming  a  just  compensation,  and  that 
which  is  palpably  not  a  tax,  but  in  the  form  of  a  tax  or  in 
some  other  form  the  taking  of  private  property  for  the  use 


660  SUPREME  COUBT. 


Gotten  et.  al.  ts.  The  Co. Commissioners  of  Leon  Co.  et.al. — Opinion  of  Goat 

of  the  public  or  of  others  without  just  compenBation.  Thit 
there  must  be  a  palpable  and  flagrant  departure  from  equal- 
ity in  the  burthen  as  imposed  upon  the  persons  or  proper- 
ty bound  to  contribute,  or,  it  must  be  apparent  that  per- 
sons or  their  property  are  subject  to  a  local  burthen  for  the 
benefit  of  others,  or  for  purposes  in  which  they  have  no  in- 
terest, and  to  which  they  are  therefore  not  justly  bound 
to  contribute,  and  that  the  case  must  be  one  in  which  the 
operation  of  the  power  will  be  at  first  blush  pronounced  to 
be  the  taking  of  private  property  without  compensation, 
and  in  which  it  is  apparent  that  the .  burthen  is  imposed 
without  any  view  to  the  interest  of  the  individual  in  the 
object  to  be  accomplished  by  it."  Slack  vs.  Maysville  B. 
R.  Co.,  B.  Mon.  32. 

With  this  admission,  it  may  be  contended  with  great 
propriety  that  plaintiff^s  case  is  made  out,  as  fuDy  demon- 
strated in  this  opinion.  If  this  is  not  "the  case — of  a  local 
burthen  for  the  benefit  of  others  and  for  purposes  in  which 
he,  tlie  complainant  has  no  interest" — it  will  be  difBcalt 
to  find  oue. 

Very  obviously  the  cases  cited  are  applicable  to  consti- 
tutions liaving  no  restrictions  upon  legislative  power.  The 
fact  i>',  (here  could  not  by  possibility  be  an  authority  else- 
where in  j)oint  to  a  case  arising  under  our  Constitution,  as 
no  Constitution  of  any  other  State  of  the  Union  has  the 
same  restrictions  upon  legislative  power.  Arkansas  ap- 
proac^ies  nearest  to  it,  as  by  a  vote  of  two-thirds  of  the  Le- 
gi.^hiturc  they  may  avoid  the  effect  of  the  provision  of  our 
Cnnstitution  as  to  necessary  expenses.  With  us  the  pro- 
vision i!=  ahfohite  and  unconditional,  and  with  this  difference, 
was  l)errowed  from  the  Constitution  of  that  State,  made  a 
few  years  previously.  It  is  a  remarkable  fact,  that  after 
the  year  1850  the  Constitutions  of  all  the  new  States  were 
.   '    •    i'l     x press  reference  to  this    very    subject— to  pre- 


TEBM  AT  TALLAHASSEE,  1856.  661 

Cotton  et  al.  ts.  The  Co.Commls8ioners  of  Leon  Co.  etal. — Opinion  of  Court. 

vent  an  abuse  of  the  taxing  power.  The  very  courts  sus- 
taining the  power  admit  its  tendency  to  wrongful  and  in- 
jurious exercise.  Thus  the  Court  of  Appeals  of  Kentucky, 
in  the  ease  quoted,  say  "we  avow,  as  this  court  has  hereto- 
fore done,  that  we  regard  the  power  of  local  taxation,  and 
especially  when  exercised  or  controlled  by  the  local  major- 
ity, as  one  eminently  subject  to  abuses  involving  injustice 
and  oppression"    13.  B.  Mon.,  33. 

The  new  states,  Michigan,  Wisconsin,  Texas,  Arkansas, 
Iowa  and  California,  made  their  constitutions,  and  the 
older  states,  Ohio,  New  York,  Kentucky,  Mississippi,  In- 
diana, and  Illinois,  amended  theirs  with  most  stringent  re- 
strictions, principally  to  attain  this  end.  New  York,  ear- 
lier even  than  this,  amongst  others,  made  a  provision  of 
this  kind.  "The  assent  of  two-thirds  of  the  members 
elected  to  each  branch  of  the  Legislature  shall  be  requi- 
site to  every  bill  appropriating  moneys  or  property  for 
local  or  private  purposes.^'  Great  must  have  been  the  in- 
centive, urgent  and  irresistible  the  necessity  which  in- 
duced this  successive  and  almost  simultaneous  movement 
of  the  people  in  so  many  different  States  to  remedy  a  mis- 
chief, not  transient  and  temporary,  but  so  fixed  and  deep- 
seated  as  to  require  so  radical  a  change  in  their  fundamen- 
tal law.  It  establishes  beyond  a  doubt  the  important 
principle  that  this  assumption  of  unrestricted  sovereignty 
in  the  imposition  of  taxes  and  disbursement  of  public 
money,  has  no  foundation  in  American  institutions,  and  is 
not  fitted  to  American  soil. 

When  it  is  admitted  that  these  provisions  of  our  Consti- 
tution are  so  important  in  their  character  so  operative  as 
to  prevent  legislative  action — ^when  it  is  seen  that  they  are 
expressly  applied  to  the  counties  and  cities — where  can 
there  be  rational  or  even  probable  room  for  doubt  ?  If  the 
^ride  Convention  liad  no  such  design  in  the  adoption  of 
44 


662  SUPREME  COIJBT. 


Gotten  et.  al.  vs.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Coort 


these  provisions,  it  is  respectfully  asked  what  was  the  end 
sought  by  their  introduction?  Have  they  no  meaning — 
no  purpose — no  object?  Is  our  Constitution  like  that  of 
Connecticut,  or  Kentucky,  Pennsylvania  or  Louisiana,  or 
Ohio,  so  that  a  decision  made  by  their  courts  is  an  au- 
thority for  us? 

The  words  used  possess  a  profound  significance  and  mean- 
ing. The  space  they  occupy  is  not  a  mere  blank,  nor  are 
they  to  be  rejected  as  a  dead  letter,  ineffective  and  inert, 
having  no  existence — a  mere  sound,  signifying  nothing. 
To  disregard  them,  I  submit  with  deference,  is  to  exert  a 
power  of  repeal  and  not  of  construction;  and  this  opinion 
of  the  court  will  inevitably  effect  what  a  respectable  mi- 
nority of  the  convention  failed,  after  repeated  efforts,  to 
accomplish  by  direct  motion,  to  strike  out  these  very  pro- 
visions. 

Great  stress  is  laid  upon  a  decision  made  in  Tennessee, 
because  the  Constitution  of  tliat  State  is  said  to  be  like 
ours.  Let  us  determine  tliis.  "The  General  Assembly 
shall  have  power  to  autliorize  the  several  counties  and  in- 
corporated towns  in  the  State  to  impose  taxes  for  county 
and  corporation  purposes  respectively,  in  such  manner  as 
shall  be  prescribed  by  law;  and  all  property  shall  be 
taxed  upon  the  principles  established  in  regard  to  State 
taxation.^'    29  sec,  2  art.,  Cons.  Tenn. 

"All  property  shall  be  taxed  according  to  its  value. 
That  value  shall  be  ascertained  in  such  manner  as  the  Le- 
gislature shall  direct,  so  that  the  same  shall  be  equal  and 
uniform  throughout  the  State,  and  no  one  species  of  pro- 
perty shall  be  taxed  higher  than  any  other  species  of  pro- 
perty of  equal  value."    Sec.  28,  same  Constitution. 

Now,  the  only  resemblance  here  is  that  of  equality,  uni- 
formity and  according  to  value;  and  the  tax  of  counties  and 
cities  is  to  be  for  county   and   corporate  purposes.      There 


TERM  AT  TALLAHASSEE,  1856.  663 


Gotten  et.  al.  vs.  The  Co.Commlssloners  of  I/eon  Co.  et.al. — Opinion  of  Court. 

is  no  restriction  as  to  necessary  expenses — none  as  to  aid- 
ing corporations.  Unless,  then,  an  adjudication  upon  a 
Constitution  without  restriction  upon  the  legislative  pow- 
er, which,  according  to  the  doctrine  of  its  courts,  is  unlimit- 
ed, be  applicable  to  a  State  Constitution  having  restric- 
tions confining  the  Legislature  in  this  very  respect,  then 
indeed  the  authority  is  inapplicable.  It  is  lamentable  to 
observe  the  slight  influence  of  words  to  abridge  power  or 
to  restrain  and  prevent  its  doubtful  exercise.  Let  there 
be  line  upon  line  and  precept  upon  precept,  yet  some 
means  of  evasion  will  be  devised,  and  this  tendency  pre- 
vails in  direct  ratio  and  proportion  to  the  interests  in- 
volved. Not  so,  however,  with  a  grant  of  power,  which, 
though  ever  so  vague  and  indefinite,  yet  from  its  inherent 
propensity  of  aggrandizement,  never  fails  to  discover  the 
most  plausable  and  authoritative  pretexts  and  excuses  for 
any  desired  extension. 

The  power  of  the  judiciary  to  disregard  an  unconstitu- 
tional law  is  declared  in  the  opinion  of  the  majority  to  be 
aggressive,  as  having  been  used  for  mischievous  purposes. 
It  is  even  characterized  as  a  deadly  weapon.  The  au- 
thority for  so  grave  an  assertion,  so  serious  a  charge,  is 
not  given.  I  am  confident  none  exists.  I  am  not  aware 
that  any  one  even  in  the  heat  of  party  excitement  has  ever 
before  carried  his  views  to  such  an  extreme.  What  court  has 
committed  this  grave  offence?  Certainly  not  the  Supreme 
Court  of  this  State,  that  has  exerted  this  power  but  on  one 
occasion,  as  far  as  I  recollect.  Is  it  the  Supreme  Court  of 
the  United  States  that  has  had  greater  occasion  to  bring 
itself  within  the  reach  of  the  charge  than  any  other? 

But  is  there  the  slightest  pretext  or  color  for  any  such 
notion?  If  the  idea  of  aggression  was  ever  entertained  in 
the  wildest  dream  of  any  judge,  a  simple  survey  of  his  po- 
sition would  effectually  extinguish  such  sentiment. 


664  SUPREME  COUBT. 


Gotten  et  al.  ts.  The  Co-CommiMlonen  of  Leon  Co.  etal.— Opinion  of  Court 

A  court  makes  no  law  controls  no  means,  no  monied 
resources,  has  no  patronage,  (in  this  state  does  not  appoint 
-its  own  clerks.)  The  disposition  of  all  these  is  by  the  oth- 
er departments  of  government.  It  cannot  initiate  action 
in  the  slightest  case;  like  an  arbitrator  it  acts  only  as  ques- 
tions are  brought  before  it,  and  grants  or  refuses  only  on 
such  application.  Sometimes  the  legislature  or  ezecutite 
obtains  its  aid  to  enforce  a  law  or  punish  for  disobedience 
to  one. 

At  other  times  the  citizen  claims  its  interposition  insist- 
ing that  legislative  or  executive  action  is  to  his  injury  and 
that  the  supreme  law  of  the  land,  the  Constitution,  is  his 
shield,  and  constitutes  a  protection  to  him.  In  such 
case,  the  court  performs  the  simple  oflBce  of  deciding 
which  is  superior,  and  when  an  act  of  the  legislature 
or  the  executive  is  in  conflict  with  the  Constitution,  it  an- 
nounces the  fact  and  gives  efficacy  to  the  supreme  law.  It 
is  then  perfectly  clear  that  the  action  of  the  court  cannot 
be  aggressive  except  where  it  fails  to  interpose  for  the  pro- 
tection of  the  citizen  against  an  unconstitutional  invasion 
of  his  rights.  In  such  event  the  court  makes  itself  an  ac- 
cessary by  the  aid  rendered  and  to  this  extent  will  its  ac- 
tion, be  aggressive.  The  present  case  will  be  an  apt  illus- 
tration if  we  are  right  in  our  views  as  to  the  unconstitution- 
ality of  the  law. 

How  this  action  can  be  justly  characterized  as  a  deadly 
weapon  is  beyond  my  powers  of  conception.  If  there  be 
serious  and  fatal  consequences  attendant  upon  the  exercise 
of  such  power  by  the  judicidry,  they  will  arise  from  the  im- 
becility or  want  of  independence  and  integrity  of  its  mem- 
bers in  the  discharge  of  the  important  functions  confided 
to  them.  They  can  never  attach  to  a  faithful  and  consci- 
entious and  independent  discharge  of  judicial  duty,  for  if 
liberty  is  to  be  crushed  and  freedom  to  find  its  grave,  an 


TEBM  AT  TALLAHASSEE,  1856.  666 

Gotten  et.  al.  ▼■.  Tbe  Co.Commiaslonen  of  Leon  Co.  etal. — Opinion  of  Coort. 

honest  and  undaunted  judiciary  will  be  found  unflinch- 
ingly maintainging  its  post  in  defence  of  the  Constitution, 
and  perishing  only  amid  its  ruins.  The  deadly  weapon 
will  then  be  found  in  the  hands  of  its  foes,  and  the  fatal 
wound  inflicted  by  its  enemies — the  enemies  of  constitu- 
tional liberty  and  free  government. 

The  importance  of  a  proper  exercise  and  discharge  of  this 
duty  is  illustrated  in  the  impressive  language  of  the  sages 
and  patriots  of  the  Revolution,  the  fathers  of  the  Consti- 
'tution  of  the  United  States,  and  by  eminent  jurists  and 
statesmen. 

The  late  Daniel  Webster  in  a  debate  in  the  Convention 
of  Massachusetts,  thus  happily  and  forcibly  expressed  him- 
self:  "No  conviction  is  deeper  on  my  mind  than  that  the 
maintenance  of  the  judicial  power  is  essential  and  indispen- 
sable to  the  very  being  of  this  government.  The  Constitu- 
tion without  it  would  be  no  Constitution,  the  Government 
no  Government.  I  am  deeply  sensible,  too,  and  I  think 
every  man  must  be,  whose  eyes  have  been  opened  to  what 
has  passed  around  him  for  the  last  twenty  years,  that  the 
judicial  power  is  the  protecting  power  of  the  whole  Gov- 
ernment.   Its  position  is  on  the  outer  wall.^' 

The  great  Patrick  Henry,  than  whom  no  one  was  more 
jealous  of  power,  and  who  opposed  with  all  his  might  the 
Constitution  of  the  United  States  on  account  of  the  large 
power  grants  in  it,  thus  expressed  himself  in  the  Virginia 
Convention:  "The  honorable  gentleman  did  our  judiciary 
honor  in  saying  they  had  firmness  enough  to  counteract 
the  Legislature  in  some  cases.  Yes  sir,  our  judges  op- 
posed the  acts  of  the  Legislature.  We  have  this  landmark 
to  guide  us.  They  had  the  fortitude  to  declare  that  they 
were  the  judiciary,  and  would  oppose  unconstitutional 
acts.  Are  you  sure  that  your  federal  judiciary  will  act 
thusf   Is   that  judiciary   so   well  constituted  and   so  inde- 


666  SUPREME  COURT. 

Gotten  et.  al.  vs.  The  Co. Commissioners  of  Lieon  Co.  et.al. — Opinion  of  Court 

pendent  of  the  other  branches  as  our  State  judiciary  f 
Where  are  your  landmarks  in  this  government  f  I  will  be 
bold  enough  to  say  that  you  cannot  find  any.  I  take  it  as 
the  highest  encomium  on  this  country  that  the  acts  of  the 
Legislature,  if  unconstitutional,  are  liable  to  be  opposed 
by  the  judiciary." 

Chancellor  Kent  says,  "there  can  be  no  security  for  the 
minority  in  a  free  government,  except  through  the  judicial 
department.  In  free  governments,  the  ifidependence  of 
the  judiciary  becomes  far  more  important  to  the  security 
of  the  rights  of  the  citizen  than  in  a  monarchy,  since  it  is 
the  only  barrier  against  the  oppression  of  a  dominant  fac- 
tion, armed  for  the  moment  with  power,  and  abusing  the 
influence  acquired  under  accidental  excitement  to  over- 
throw the  institutions  and  liberties  of  the  people."  1 
Kent.  Com. 

Mr.  Madison,  justly  styled  the  father  of  the  Constitu- 
tion of  the  United  States,  speaking  as  to  the  position  of 
the  judiciary  and  the  necessity  for  strengthening  it,  says: 
"  Experience  in  all  the  States  had  shown  a  powerful  ten- 
dency in  the  Legislature  to  absorb  all  power  into  its  vor- 
tex. This  was  the  real  source  of  danger  to  the  American 
Constitution,  and  suggested  the  necessity  of  giving  every 
defensive  authority  to  other  departments  consistent  with 
republican  principles."    Debates  in  Convention,  p.  1163. 

Governor  Morris  said,  "he  concurred  in  thinking  the 
public  liberty  in  greater  danger  from  legislative  usurpa- 
tions than  from  any  other  source."    P.  1165. 

"As  the  Constitution  is  the  supreme  law  of  the  land,  in 
a  conflict  between  the  laws  either  of  Congress  or  the 
States,  it  becomes  the  duty  of  the  judiciary  to  follow  that 
only  which  is  of  paramount  obligation.  This  results  from 
the  very  theory  of  a  republican  constitution  of  govern- 
ment; for  otherwise  the  acts  of  the  legislature  and  execu- 


TERM  AT  TALLAHASSEE,  1856.  667 

Gotten  et.  al.  vi.  The  Co. Commissioners  of  Leon  Co.  etal. — Opinion  of  Court. 

tive  would  in  effect  become  supreme  and  uncontrolable, 
naturally,  notwithstanding  any  prohibitions  or  limitations 
in  the  Constitution,  and  usurpations  of  the  most  unequivo- 
cal and  dangerous  cliaracter  might  be  assumed  without  any 
remedy  within  the  reach  of  the  citizen.  The  people  would 
thus  be  at  the  mercy  of  their  rulers  in  the  State  and  na- 
tional governments,  and  an  omnipotence  would  practically 
exist  like  that  claimed  for  the  British  Parliament."  3 
Story,  428-9. 

Such  are  the  views  I  have  entertained  on  this  subject, 
derived  from  these  eminent  sources.  They  have  governed 
me  to  the  extent  of  my  limited  capacity  in  their  applica- 
tion to  the  present  subject.  The  maintenance  of  the  Con- 
stitution, of  the  great  fundamental  principles  of  free  govern- 
ment is,  in  my  view,  pre-eminently  superior  to  any  mere 
question  of  expediency  or  regard  for  improvements,  how- 
ever important  they  may  be  to  the  welfare  of  the  State. 
I  might  lament  a  restriction  which  would  be  detrimental 
to  this  enterprise,  but  for  such  I  am  not  responsible;  the 
remedy  is  in  other  hands.  My  duty  is  to  declare  the  law 
as  it  is;  and,  having  a  clear  conviction  in  my  own  mind, 
free  from  any  doubt,  there  remains  the  questionable  and 
imperious  duty  to  announce  it.  I  find  no  necessary  expense 
of  the  county  of  Leon — no  county  purpose,  which  justifies 
the  levy  of  this  tax.  The  law  is,  in  my  opinion,  therefore, 
palpably  unconstitutional. 


668  SUPREME  COURT. 


Grady,   PlaintilT  In  Error,  vs.   Thlgpin,  Adm'r. — Statement  of  Casa. 


Cornelius  Grady,  Plaintiff  in  Error,  vs.  C.   Thiopkn, 
Adm'r,  &c.,  of  Jean  Labatut,  dec'd. 

1.  Entries  in  the  account  book  of  a  shop-keeper  excluded  as  evidence  where 
the  proof  was  that  they  were  made  in  two,  three  and  sometimes  four  days 
after  the  transaction.  They  should  have  been  made  on  the  same  day  or  the 
day  after. 

2.  No  objection  that  they  were  transcribed  from  a  slate. 

3.  The  charges  should  be  definite,  stating  the  quantity  and  kind  of  the  article 
and  price,  and  not  accumulate  and  confound  prices  of  different  artlclet. 

Writ  of  error  to  Franklin  Circuit  Court. 

This  was  an  action  of  assumpsit  instituted  on  a  book  ac- 
count. 

On  the  trial  of  the  case,  the  plaintiff  offered  in  evidence 
the  book  of  entries  containing  the  account  sued  on,  to 
which  the  defendant  by  his  counsel  objected.  Thereupon 
the  plaintiff  introduced  Jacob  Lind  as  a  witness,  who  tes- 
tified that  he  had  be^n  clerk  of  Labatut;  that  the  book 
offered  in  evidence  was  the  only  book  kept  by  Labatut; 
that  when  goods  were  sold  by  witness  or  Labatut,  they 
were  entered  on  a  slate  kept  for  that  purpose;  that  the 
entries  so  entered  on  the  slate  were  transcribed  by  Laba- 
tut to  the  book  offered  in  evidence;  that  sometimes  the 
entries  were  made  from  the  slaie  into  the  book  on  the 
same  day,  and  sometimes  they  were  not  transcribed  into 
the  book  from  the  slate  for  two  or  three  days,  and  some- 
times four  days  had  elapsed;  that  he  made  but  few  en- 
tries in  the  book  from  the  slate  himself — not  oftener  than 
four  or  five  times. 

Thereupon  the  defendant  objected  to  the  introduction  of 
said  book  offered  in  evidence,  because  the  same  was  not 
the  original  book  of  entries,  inasmuch  as  it  was  proved   by 


TEEM  AT  TALLAHASSEE,  1856.  669 

Grady,  Plaintiff  in  Error,  vs.  Tbiffpin,  Adm*r. — Argument  of  Coansel. 

the  witness  that  the  entries  were  originally  made  on  a 
slate,  which  were  transcribed  into  the  said  book,  some- 
times on  the  same  day,  sometimes  in  two,  three  or  four 
days. 

The  court  overruled  the  objection,  and  a  verdict  and 
judgment  were  rendered  for  plaintiff. 

D,  P.  Holland,  for  Appellant. 

It  is  contended  by  the  appellant,  that  before  the  book 
offered  in  evidence  was  admissible  and  competent  testi- 
mony to  go  before  the  jury,  it  was  necessary  for  the  party 
seeking  its  introduction  to  lay  a  foundation  for  its  admis- 
sion by  proving:  Ist,  That  the  party  had  no  clerk;  2nd, 
That  some  of  the  articles  charged  had  been  delivered;  3rd, 
That  the  book  offered  in  evidence  is  the  bof)k  in  which  the 
articles  charged  in  the  bill  of  particulars  have  been  ori- 
ginally made;  4th,  That  he  keeps  fair  and  honest  books, 
and  this  must  be  done  by  disinterested  witnesFcs  and  ad- 
duced to  the  court;  that  the  party's  own  oath  nor  his  ad- 
ministrator's, if  he  be  dead,  cannot  be  received  to  ostal)- 
lish  the  foregoing;  that  the  court,  upon  the  hearing  of  tliis 
testimony,  is  to  decide  as  to  the  competency  of  the  book  ; 
and  the  credit  to  be  given  to  the  book  itself  is  afterwards 
to  be  determined  by  the  jury. — Laure  vs.  Rowland,  7  Bar- 
bour's S.  C,  108 ;  Vosburgh  vs.  Thayer,  12  Johns.  461. 

The  statute  of  this  State,  passed  Dec.  29th,  1854,  (see 
Pamphlet  Laws,  7  session,  page  65,)  it  is  contended  onl^ 
admits  the  books  as  secondary  evidence,  and  if  it  appears 
at  any  stage  of  the  case  that  better  evidence  was  attain- 
able, the  book  is  incompetent  to  go  before  the  jury.  In 
the  present  case,  better  testimony  was  attainable;  for  the 
witness  Lind  stated  that  he  was  clerk  for  Labatut  at  the 
time,  and  he  ought  to  have  been  called  upon  to  prove  the 
sale  and  delivery  of  the  goods  charged,  and  their  prices. — 


> 


670  SUPREME  COURT. 


Grady,  Plaintiff  In  Error,  vs.  Thlfn>In*  Adm'r. — Argrument  of  ConnteL 


Thomas  vs.  Dyott,  1  Nott  &  McCord,  186;  Lamb  n. 
Hart's  adm'rs,  1  Brevard,  105;  Eastman  vs.  Moulton.  3 
X.  H.,  157.    Cited  in  1  Smith,  L.  C,  page  351. 

The  book  of  original  entries  (even  when  competent  to 
go  before  the  jury)  is  not  evidence  of  th6  price  and  value 
of  the  articles  charged  or  of  the  services  rendered  but  onlj 
of  the  sale  and  deliverv  or  of  the  services  rendered,  and 
then  onlv  of  such  items  as  are  within  the  line  and  busi- 
ness  of  the  party  introducing  them ;  and  these  must  be  of 
those  things  that  are  the  subject  of  book  accounts,  and 
would  not  be  evidence  of  money  advanced  or  cash  lent— 
1  S.  L.  Cases,  page  368  and  361. 

The  book  offered  in  evidence  was  inadmissible,  l>ecau?e 
the  lapse  of  time  from  the  entry  on  the  slate  to  the  book 
was  so  great  that  the  entries  in  the  book  did  not  form  a 
part  of  the  res  gestae,  such  entries  cannot  be  said  to  have 
been  made  contemporaneous  with  the  deliver}^  of  the 
goods.  If,  tlien,  this  is  the  case,  and  the  entries  did  not 
partake  of  tliis  character,  they  are  not  original  entries.  In 
Walter  vs.  Bollman,  8  Watts,  544,  an  interval  of  one  day 
between  the  transaction  and  the  entrv  of  it  on  the  book 
has  been  deemed  a  valid  objection  to  the  advisability  of 
the  book  in  evidence.     1  Greenleaf  Ev.,  §  117  and  note. 

Entries  which  had  been  transferred  from  a  memoran- 
dum book,  some  on  the  first,  some  on  the  second  and 
others  on  the  third  day  after,  were  held  incompetent- 
Cook  vs.  Ashmead — cited  in  1  S.  L.  C,  page  358. 

In  Forsythe  vs.  Xorcross,  5  Watts,  432,  where  several 
immediate  days  had  elapsed  before  they  were  trans- 
scribed,  the  books  were  rejected  in  that  case.  The  entries 
were  made  on  a  slate  till  it  was  full,  and  then  after  four, 
five  or  six  days,  they  were  transcribed  into  the  book,  and 
three  witnesses  of  the  same  occupation  swear  that  this  was 
a  general  custom,  so  far   as  they   knew.     The   court   there 


TERM  AT  TALLAHASSEE,  1856.  671 

Grady,  PlaintilT  in  Error,  vs.  Thigpin,  Adm*r. — Argument  of  Counsel. 

say,  "An  entry  on  a  card  or  slate  is  but  a  memorandum  pre- 
paratory to  permanent  evidence  of  the  transaction,  which 
must  be  perfected  at  or  near  the  time  and  in  the  routine 
of  business,  but  the  routine  must  be  a  reasonable  one,  for 
there  is  nothing  in  the  condition  of  the  craftsman  to  call  for 
indulgence  till  his  slate  be  full,  or  till  it  be  convenient,  for 
him  to  dispose  of  the  contents  of  it.  The  entries  ought,  in 
every  instance,  to  be  transferred  in  the  course  of  the  suc- 
ceeding day." 

If  this  decision  be  correct  with  regard  to  mechanics,  a 
fortiori  should  it  be  applied  to  merchants,  because  the 
established  rules  of  business  are  required  of  this  class 
rather  than  of  mechanics,  and  courts  of  justice  should  ren- 
der greater  indulgence  to  the  latter  class,  who  have  less 
facilities  for  book-keeping,  whose  business  does  not  re- 
quire that  nicety,  precision  and  promptness  in  making 
their  entries  that  mercantile  transactions  demand. 

The  law  cannot  fix  any  particular  instance  when  the 
entry  shall  be  made;  but  it  must  be  within  such  time  as 
to  make  the  entry  contemporaneous  with  the  delivery  of 
the  goods.  And  when  this  is  not  done  and  a  longer  period 
of  time  elapses,  such  entry  cannot  be  held  to  be  an  origi- 
nal entry,  and  this  is,  in  every  instance,  a  subject  of  en- 
quiry for  the  court. — Curren  vs.  Crawford,  4  S.  and  Rawle. 

In  the  present  case,  it  is  evident  from  the  testimony  of 
Lind  that  the  book  offered  in  evidence  was  not  a  book  of 
transactions  as  they  occurred,  but  a  register  of  past  trans- 
actions. If  the  book  possessed  the  latter  character,  in- 
stead of  the  former,  then  it  was  not  competent  to  go  to  the 
jury.  The  book  could  not  have  been  relied  upon  with  any 
degree  of  precision,  because  the  charges  on  the  book  were 
only  transcribed  from  the  slate,  and  without  the  assistance 
of  the  person  who  made  the  original  charges  on  the  slate, 
and  hence  was  inadmissible. 


672  SUPBEME  COIJBT. 

Qrady,  Plaintiff  in  Error,  vs.  Thigpln,  Adm*r. — Armament  of  CoubkL        I 

T.  J.  Eppes,  for  Appellee. 
Error  First  : 

Either  the  book  was  one  of  original  entries,  or  it  was 
not,  as  it  stands  affected  or  made  otherwise  by  the  use  of  a 
slate.  What  was  the  testimony  f  The  clerk  of  Labatut 
was  introduced,  who  stated  that  Labatut  kept  correct 
books;  that  the  book  offered  in  evidence  was  the  atdif 
book  kept  by  Labatut;  but  also  stated,  that  a  slate  was 
kept  upon  which  sales  were  entered  and  thence  tran- 
scribed into  said  book,  sometimes  on  same  day,  and  in 
two,  three  or  four  days. 

Authorities. — In  case  of  Faxon  vs.  HoUis,  13  Mass., 
427,  where  a  book  was  offered  in  evidence,  and  the  plain- 
tiff, a  blacksmith,  stated  that  he  kept  a  slate  in  his  shop 
on  which  he  set  down  all  his  charges  as  they  occurred, 
and  that  he  was  in  the  habit  of  transcribing  the  entries 
from  the  slate  into  the  book,  then  rub  out  charges  on  slate 
and  begin  anew.  Court  admitted  the  book,  saying,  "The 
entries  in  the  book  may  be  considered  original,  although 
transcribed  from  a  .slate,  the  slate  containing  mere  memo- 
randa, and  not  being  intended  to  be  permanent." 

Also  see  12  Pickering,  136,  case  of  Smith  et  al.  vs.  San- 
ford,  where  a  butcher  took  meat  around  in  a  cart,  and  as  he 
sold  it  made  scores  on  the  cart,  and  upon  return  entered 
them  in  book.  Book  was  admitted  by  the  court. 

From  this  it  would  seem  that  the  mere  fact  of  keeping  a 
slate  or  other  memorandum,  for  the  purpose  of  accuracy, 
does  not  make  the  book  less  original. 

If  the  entries  be  made  in  account  book  from  memoranda 
taken  at  the  time  by  the  party,  or  by  his  assistant,  and 
intended  only  to  serve  as  notes  to  make  up  the  entries 
more  accurately,  "the  book  is  an  original." — Ingraham  ts. 
Brockins  et  al.,  9  Sergeant  &  Rawle,  285;  Patten  vs.  Ryan, 
4  Rawle,  408. 


TERM  AT  TALLAHASSEE,  1856.  673 

Grady,  riaintiff  in  Error,  vs.  Thi^in,  Adm'r. — Argument  of  Counsel. 

The  fact,  then  that  witness,  as  clerk  of  Labatut,  made 
some  of  the  entries,  is  immaterial — does  not  vitiate. 

In  the  case  of  Sickles  vs.  Mather,  20  Wendall,  72,  the 
memoranda  were  made  hy  foreman  on  a  slate,  and  thence 
transcribed  by  plaintiff  in  a  book.  "  The  plaintiff  used  to 
take  the  slate  home,  f^ometimes  every  day  and  sometimes 
every  two  or  three  daijs,  as  was  found  convenient  for  tran- 
scribing;" and  the  court  held  this  no  objection. 

Mr.  Greenleaf,  in  his  work  on  evidence,  vol.  1,  p.  155, 
(note,)  remarks:  "Whether  entries  transcribed  from  a 
slate  or  card  into  a  book  are  to  be  deemed  original  entries 
or  not  is  not  universally  admitted,"  but  adds,  that  in  Mas- 
sachusetts they  are  admitted. — Faxon  vs.  Hollis,  3  Mass., 
427.  In  Pennsylvania  they  were  rejected  in  Ogden  vs. 
Miller,  1  Brown,  147,  but  continues  to  say,  they  have  since 
been  admitted  where  they  were  transcribed  "forthwith" 
into  the  book. 

If  these  authorities  are  to  be  relied  on,  the  book  offered 
in  evidence  below  must  be  deemed  an  original,  and  not  in 
the  least  made  less  so  by  the  use  of  a  slate.  If,  then,  it  was 
original,  the  court  below  acted  right  in  admitting  said 
book  to  the  jury. 

This  brings  us  to  error  second,  as  assigned : 

Does  the  delay  of  one,  two  or  four  days  in  transcribing 
entries  from  the  slate  into  the  book  vitiate  book  as  evi- 
dence or  as  book  of  original  entries. 

In  the  note  just  cited  from  Greenleaf  is  the  word  "forth- 
with/' in  reference  to  transcribing  entries,  and  by  way  of 
illuftration  to  show  how  it  was  used  and  understood  in 
Pennsylvania,  he  cites  authorities  (vide  Greenleaf,  vol.  1, 
p.  155,)  "as  not  later,  &c.,  than  the  evening  of  the  second 
day,"  (and  cites  Ingraham  vs.  Brockins,  9  S.  &  R.,  285.) 

^^Forthwith,"  then,  was  not  understood  to  mean  at  the 
exact  date   or   minute   of   time,  but  has   a   more  extended 


674  SUPREME  COURT. 


Grady,  Plaintiff  in  Error,  vs.  Thigpin,  Adm'r. — Argument  of  Counsel. 

time    and  signification  in    this  connexion,  to  be  determined 
iy  circumstances. 

Let  us  look  to  the  authorities  for  a  rule  upon  the  sub- 
ject. As  to  time  of  entry,  the  principle  is  thus  declared 
in  Curran  vs.  Crawford,  4  Sergeant  &  Rawle,  3:  "The 
law  fixes  no  precise  time  when  the  entry  should  be  made  ; 
at  or  near  the  time  is  sufficient."  Thus,  in  Patten  vs. 
Ryan,  4  Rawle,  408,  where  the  plaintiff  said  she  first  made 
the  entries  on  a  card  and  then  copied  them  into  book, 
"  either  the  same  evening  or  the  next  day,  or  as  soon 
thereafter  as  she  conveniently  could,"  no  objection  was 
made  on  the  ground  of  delay.  And,  in  further  explana- 
tion of  word  ^'forthwith/'  used  by  Greenleaf,  who  cites 
Ingraham  vs.  Brockins,  9  S  &  R.,  285,  I  would  refer  tha 
court  to  vol.  1  Smith's  Leading  Cases,  p.  357,  (top,)  Price 
vs.  Earl  of  Torrington,  where  said  case  of  Ingraham  vs. 
Brockins  (relied  on  by  Greenleaf,)  is  thus  commented  on: 

"The  principle  really  decided  in  Curran  vs.  Crawford 
and  Ingraham  vs,  Brockins  is  that  the  court  will  be 
guided  by  the  consideration  whether  the  first  memoranda 
were  made  on  such  material  and  with  such  care  and  tran- 
scribed under  such  circumstances  that  the  book  of  entries 
may  be  reasonably  relied  on." 

And  so  in  case  of  Hartly  vs.  Brooks,  6  Wharton,  189, 
(1841,)  two  books  of  entries  were  offered.  As  to  one  of 
these,  the  plaintiff  testified  that  some  of  the  entries  were 
made  the  first,  some  the  second  day  in  the  evening,  and 
that  some  were  taken  from  the  head,  some  from  the  slate. 
Book  was  admitted.  (The  other  book  was  objected  to  on 
another  account.) 

But  the  principle  as  to  time  the  entries  should  be  tran- 
scribed, and  which  supplies  the  most  accurate  rule  on  the 
subject,  is  thus  stated  by  Justice  Sergeant  in  case  of 
Jones  vs.  Long,  3  Watts,  325,  viz : 


TERM  AT  TALLAHASSEE,  1856.  675 

Grady,  Plaintiff  in  Krror,  vs.  Thlfplo,  Adm'r. — Opinion  of  Court 

^  ^^^-^  ■■  -I—       ■■  ■■  ■■  ■■»»  ■■  ■■■—■■■  ■■■»■  ■  ^l^^^^^^^M^^^— ■^»^— ^^ 

■ ■-■[■■■^l  Ml  -  —  ■ • 

"  Tlie  entries  need  not  be  made  exactly  at  the  time  of 
the  occurrence — it  suffices  if  it  be  within  a  reasonable  time, 
80  tliat  it  may  appear  to  have  taken  place  while  the  memo- 
ry of  the  fact  was  recent  or  the  source  from  which  know- 
ledge of  it  was  derived  was  unimpaired.  The  law  fixes 
no  precise  instant  when  the  entry  should  be  made.  // 
made  at  or  about  the  time,  it  is  sufficient," 

And  Smith,  in  his  Leading  Cases,  vol.  1,  p.  359,  re- 
marks in  this  connexion:  "A  principle  so  strongly  found- 
ed in  good  sejise  and  so  consistent  with  what  has  been  de- 
cided in  other  States,  cannot  be  considered  as  in  any  de- 
gree shaken  by  loose  dicta  in  later  cases,  especially  when 
those  dicta  have  been  thrown  aside  with  utter  contempt 
by  the  court  that  made  them. 

In  the  principle  stated  by  Justice  Sergeant,  above  cited, 
the  rule  applicable  to  time  of  transcribing  can  be  seen 
thus :  "  It  must  be  in  a  reasonable  time,"  and  this  to  be 
determined  or  estimated  by  either  of  two  means,  viz:  The 
one,  "So  that  it  may  appear  to  have  taken  place  while 
the  memory  of  the  fact  was  recent"  The  other,  "Or  the 
source  from  which  a  knowledge  of  it  was  derived  w^as  un- 
impaired." 

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

On  the  trial  of  this  case  in  the  court  below,  the  plaintiff, 
administrator  of  Labatut,  offered  to  read  to  the  jury,  a 
book  of  entries  as  evidence  to  which  defendant  objected. 
Thereupon  plaintiff  introduced  Jacob  Lind  as  a  witness, 
who  testified  that  he  had  been  clerk  of  plaintiff,  deceased  ; 
that  to  the  best  of  his  knowledge  he  kept  correct  books  ; 
that  the  book  offered  in  evidence  was  the  only  book 
kept  by  him;  that  when  goods  were  sold  by  the  witness  or 
plaintiff,  they  were  entered  on  a  slate  kept  for  that  purpose  ; 
that  entries  so  made  on  the  slate  were  transcribed  by  plain- 


676  STJPEEME  COUBT. 


Grady,  Plaintiif  in  Error,  vs.  Thigpin,  Adm'r. — Opinion  of  Court 

tiflf,  deceased,  to  the  book  offered  in  evidence.  That  some- 
times the  entries  were  made  from  the  slate  into  the  book 
on  the  same  day.  Sometimes  the  entries  were  not  trans- 
scribed  into  the  book  from  the  slate  in  two  or  three  days, 
and  sometimes  four  days  had  elapsed.  That  he  made  but 
few  entries  in  the  book  from  the  slate  himself,  not  oftener 
than  four  or  five  times.  The  court  permitted  the  book  to 
be  read  in  evidence,  and  defendant  excepted.  The  entries 
read  in  evidence  to  the  jury  are  as  follows: 
C.  Orady  to  C.  Labitut,  Dr. 

July  8th,  1853,  To  date $3  75 

Peck  Onions,  100  lbs.  Sugar 9  05 

1  gal.  Lard  Oil  and  Molasses 2  05 

Liquor  bill 1  80 

Aug.     5.  2   Chickens,   Cognac 1  35 

6.  Potatoes    55 

18.  Tea,  12  chickens 4  35 

Sept.  13.  ^2   cloz.    Chickens 1  50 

%  barrel  Flour 4  25 

30.  Molasses  and  Lard 1  65 

Onions    25 

Oct.      3.  Liquor  bill,   28th  Aug 12  20 

8.  Tea  and  Salt,  33,  beef 4  28 

13.  Callaghan's  order 7  50 

10  lbs.  meat 84 

3.  14   gal.   Molasses 20 

Liquor  bill,  Cigars 18  05 


74  12 

Eeceived  payment,  7  50 


$66  62 
In  Hooker  vs.    Johnson,  decided  at  the  recent  session   of 


TERM  AT  TALLAHASSEE,  1866.  677 

Grady,  Plaintiff  In  Error,  ts.  Thlcpln,  Adm'r. — Opinion  of  Conrt. 

this  court  at  Tampa,  it  was  held  that  "the  relaxed  rule  as 
ta  the  introduction  of  book  accounts,  in  operation  in  our 
sister  States,  with  the  restrictions  and  qualifications  at- 
tached thereto,  should  prevail  here/'  Tested  by  these 
rules,  there  seems  to  be  little  objection  to  the  evidence  on 
account  of  the  transfer  from  a  slate. — 1  Greenleaf,  p.  155, 
n.;  13th  Mass.,  427;  6th  Whart.,  189. 

There  is  greater  difficulty  as  to  the  time  that  should 
elapse  for  the  transfer,  and  there  is  not  an  entire  agree- 
ment in  this  respect  as  to  a  precise  time.  It  is  enough, 
say  some  of  the  authorities,  that  it  be  made  "at  or  near 
the  time  of  the  transaction." — 1  Greenleaf,  138,  n.  1;  9  S. 
&  B.,  3,  5. 

The  books  should  be  kept  for  the  purpose  and  contem- 
poraneous with  the  delivery  of  the  goods.  Not  registers 
of  a  past  transaction,  but  memorandums  of  transactions  as 
they  occur. — Greenleaf  Ev.,  137-9,  n.  1. 

Again,  it  is  said  "it  suffices  if  it  be  within  a  reasonable 
time,  so  that  it  may  appear  to  have  taken  place  while  the 
memory  of  the  fact  was  recent  or  the  source  from  which 
knowledge  of  it  was  derived  was  unimpaired." — 3  Watts, 
325. 

"  When  the  entries  were  made  at  night  or  the  following 
morning  from  the  memorandum,  it  was  held  sufficient." — 
9  S.  &  R,  285. 

Sickles  vs.  Mather,  20th  Wend.,  72,  has  been  quoted  to 
the  effect  that  two  or  three  days  was  held  sufficient  but 
we  have  not  had  access  to  the  book  containing  a  report  of 
the  case,.  An  interval  of  one  day  between  the  transaction 
and  the  entry  of  it  has  been  deemed  a  valid  objection. — 8 
Watts,  344. 

There  may  be  cases  in  which  a  greater  time  might  be 
allowed  than  is  even  claimed  here.  This  will  depend  upon 
circumstances.  We  see  no  reason  or  propriety  in  allow- 
45 


678  SUPREME  COURT. 

Grady,  rialntlff  In  Error,  vs.  Thigptn,  Adm'r. — Opinion  of  Court 

ing  a  period  beyond  the  day  after  the  sale.       This     account 
is   by   a  shop-keeper  engaged  in  the  sale  of   groceries,   &c^ 
in  a  town,  which  may  be  supposed    to    be  his  sole  occupa- 
tion.    What  is  to  prevent    entries  of  sales  by  him    on   the 
same  day,  or,  at  the  furthest,  on  the  day  after.     To    allow 
four  days  in  accounts  of  this  character  would  seem    to   be 
an    invitation   to   looseness    and  irregularity    in   dealing,  if 
not  a  direct  encouragement   to  fraud.     We  hold,  then,  that 
the  book  should  have  been  rejected,  and  not  permitted   to 
be  read  in  evidence.     Were  the  account  admissible    in    the 
respects  just  stated,  there  are    other    grounds   of     objection 
to  the  greater  part  of  it.     The  charges  are  very  vague   and 
indefinite — by  no  means    precise — ^giving    neither  quantity, 
quality  nor  value,  but  accumulating  items  with    the    price 
in  the  aggregate.     Scarcely  an  entry  is  free  from  this   ob- 
jection. 

The  judgment  of  the  Circuit  Court  will  then  be  reversed, 
and  the  cause  remanded  for  a  new  trial  to  be  had  not  in- 
consistent with  this  opinion. 


Decisions 


OF  THE 


Supreme  Court  of  Florida. 


AT 


FEBRUARY  TERM,  1856, 


Held  at  Jacksonville. 


James  Cherry,  Appellant,  vs.  The  State  of  Florida. 

1.  Wheoanlndictmeothas  upon  It  the  usual  lodorsement  of  the  title  of  thecase 
together  with  a  comprehensive  designation  of  the  offence  charged,  this  court 
will.  In  view  of  the  practice  which  Is  known  to  prevail  In  the  circuit  courts,  in 
regard  to  matters  of  this  kind,  view  such  Indorsement  as  the  act  of  the  prose- 
cuting officer,  whose  duty  it  Is  to  prepare  the  bills  ;  and  the  words  of  "A  true 
bill,**  which  Is  the  act  of  the  Grand  Jury,  will  be  taken  to  refer  to  the  offence 
as  charged  In  the  body  of  the  indictment,  and  not  to  that  designated  in  the  In- 
dorsement 

2.  Such  Indorsement  of  the  prosecuting  offlx!er.  Is  to  be  received  only  a  mem- 
orandum for  the  convenience  of  reference,  and  to  distinguish  the  paper  from 
others  of  a  similar  character.  It  constitutes  no  part  of  the  Indictment-It  im- 
parts no  vitality,  nor  does  it  give  any  validity  to  the  instrument. 

3.  The  Grand  Jury  have  the  right  to  qualify  and  limit  their  finding  to  any  ex- 
tent they  may  deem  proper,  under  the  circumstances  and  facts  which  may  be 

developed  in  the  investigation  of  the  case ;  but  such  qualification  or  limitation 
moat  not  be  presumed.  The  finding  must  be  taken  to  be  general  and  referable 
solely  to  the  offence  at  charged  in  the  body  of  the  indictment,  unless  it  can  be 
reasonably  inferred  from  the  collocation  of  the  words,  that  such  qualification 
or  limitation  were  Intended  to  be  made. 


680  SUPREME  COURT. 


Cherry  vs.  The  State — Opinion  of  Court, 

4.  It  will  not  be  permitted  to  distort  the  finding  of  the  Jury,  by  forcibly 
connecting  the  words  of  the  finding  with  the  incomplete  description  of  tbc 
offence,  to  be  found  in  the  usual  indorsement  of  the  prosecuting  attorney. 

5.  Every  portion  of  the  record  that  comes  up  from  the  Circuit  Court  is  entitled 
to  equal  credit ;  and  if  implicit  credence  is  to  be  glyen  to  that  portioQ 
which  sets  out  the  finding  of  the  Jury,  as  recorded  in  the  minutes  of  tlM 
court,  the  same  degree  of  credence  is  to  be  given  to  that  portion  which c<mi* 
nects  the  finding  with,  and  makes  it  applicable  to  the  particular  bill  of  indict- 
ment set  out  in  the  record.  Such  an  identity  between  the  record  of  the  find- 
ing and  the  particular  bill  of  indictment,  to  which  it  Is  made  to  apply,  u 
will  leave  no  room  for  mistake  or  doubt,  is  all  that  is  necessary. 

6.  The  degree  of  strictness  spoken  of  In  the  books  as  applicable  to  crimtml 
Jurisprudence,  is  such  as  is  conformable  to  rational  principles,  and  notsncfa 
as  is  calculated  to  defeat  the  ends  of  the  law. 

7.  The  case  of  Hoi  ten  vs.  The  State,  (2  Pla.  Rep.,  476.)  referred  to  and  com- 
mented upon. 

Appeal  from  a  judgment  of  the  Circuit  Court  for  Duval 
County.  The  opinion  of  the  court  embraces  a  full  statement 
of  the  facts  as  disclosed  bv  the  record. 

E,  Bissell,  Jr,,  for  Appellant. 

0.  IF.  Call* for  Attorney  General  for  the  State. 

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

The  record  in  this  case  discloses,  that  at  a  term  of  the 
Circuit  Court  of  Duval  county,  James  H.  Cherry,  the  ap- 
pellant, was  indicted,  tried  and  convicted  for  the  statutnrv 
offence  of  "living  in  a  state  of  fornication  with  a  colored 
female.^'  The  indictment  is  set  out  in  extenso,  and  upon 
it  are  the  following  endorsements,  viz : 

"The  State  of  Florida  vs.  James  Cherry: — Fornication 
with  a  colored  female.'' 

"  A  true  bill.  COLUMBUS  DREW. 

Fareman/' 

The  record  of  the  finding  of  the  Grand  Jury,  as  ex- 
hibited by  the  minutes  of  the  Circuit  Court,  is  in  the  fol- 
lowing words,  viz : 


TERM  AT  JACKSOXVILLE,  1856.  681 


Cherry  vs.  The  State — Opinion  of  Court. 


"And  now,  on  this  24th  day  of  March,  A.  D.,  1855, 
came  the  Grand  Jury  into  open  court  and  made  the  fol- 
lowing presentment,  to  wit: 

The  State  of  Florida    ) 

/  Fornication  with  a  colored  female. 

T  nu  I      A  true  bill." 

James  Cherry.  \ 

Immediately  after  the  conviction  a  motion  was  made  to 
arrest  the  judgment  upon  the  following  grounds,  to  wit : 

1st.  That  it  does  not  appear  by  the  record  in  said  cause 
that  the  grand  Jury  found  therein  any  true  bill  against 
the  defendant  for  any  offence  against  the  law  of  the  State. 

2nd.  Because  it  does  not  appear  by  said  record  that  the 
Grand  Jury  found  in  said  case  a  true  bill  against  the  de- 
fendant for  the  specified  offence  described  in  the  indict- 
ment and  given  in  charge  to  the  Petit  Jury  upon  the  trial. 

3rd.  Because  it  does  not  appear  from  the  record  in 
said  cause  that  the  Petit  Jurv  found  therein  the  defendant 
guilty  of  any  offence  against  any  law  of  this  State. 

4th.  Because  it  docs  not  appear  from  said  record  that 
said  Petit  Jury  found  in  said  cause  the  defendant  guilty 
of  the  specific  offence  described  in  the  indictment  and 
given  in  charge  to  them. 

5th.  Because  the  indictment  does  not  contain  a  specific 
description  of  the  female  with  whom  the  offence  is  alleged 
to  have  been  committed. 

6th.  Because  the  record,  indictment  and  proceedings  in 
said  cause  are  in  these  and  other  respects  defective,  infor- 
mal and  insufficient. 

The  motion  in  arrest  of  judgment  was  overruled  by  the 
court  below,  and  the  propriety  of  that  ruling  is  now  pre- 
sented for  our  determination. 

In  the  argument  before  this  court  two  positions  were 
assumed  and  insisted  upon  by  the  counsel  for  the  appel- 
lant:   first,  that  neither  the  record  nor  indorsement   show 


682  SUPREME  COURT. 


Cherry  vs.  The  State — Opinion  of  Court. 

any  offence  known  to  the  laws  of  this  State;  Secondly,  that 
the  said  record  and  indorsement  do  not  show  the  particu- 
lar offence  mentioned  in  the  body  of  the  indictment.  Both 
of  these  propositions  may  be  considered  under  one  and  the 
same  head;  for  if  either  of  them  should  be  true,  it  is  fatal 
to  the  conviction,  and  the  judgment  would,  consequently, 
be  reversed. 

It  was  insisted  in  argument,  that  the  indorsement  of  the 
words  "fornication  with  a  colored  female,"  which  appear 
upon  the  indictment,  shows  that  the  Grand  Jury  intended 
and  did  find  the  bill  which  was  laid  before  them  to  be 
"true"  only  quoad  the  act  of  fornication,  and  negatived 
the  idea  that  they  intended  to  find  it  true  as  to  the  act  of 
"living  in  a  state  of  fornication,"  which  is  the  specific 
offence  designated  in  the  statute,  and  the  one  particularly 
described  and  set  forth  in  the  body  of  the  indictment.  To 
show  that  a  partial  finding  of  this  character  is  of  no  avail 
and  does  not  convert  the  bill  into  an  indictment,  various 
authorities  were  cited,  all  of  which  we  recognize  as  good 
law. 

Chitty,  in  his  work  on  criminal  law,  says:  "The  jury 
cannot  find  one  part  of  the  same  charge  to  be  true  and  an- 
other false,  but  they  must  either  maintain  or  reject  the 
whole;  and  therefore  if  they  endorse  a  bill  of  indictment 
for  murder  *'billa  vera  se  defendendo,"  or  bUla  vera  for 
manslaughter,  and  not  for  murder,  the  whole  will  be  in- 
valid and  may  be  quashed  on  motion."  He  also  lays  it 
down  as  a  rule  that  the  finding  of  the  jury  must  be  abso- 
lute and  unconditional,  and  therefore  a  finding  "si  domus 
von  fnit  in  possesisone  dominae  reginae  tunc  vera"  is  of 
no  avail  and  cannot  be  made  the  foundation  for  any  fur- 
ther proceedings.  So,  if  in  the  case  of  libel  they  find 
"hWn  veray  as  to  the  words  "sed  uirum  rhaliciose,  ign^- 
r>'7)fvs,"  for  nothing  can  be  done  upon  such  an  indictment. 
riiitty's  Criminal  Law,  322. 


TERM  AT  JACKSONVILLE,  1856.  683 


Cherry  vs.  The  State — Opinion  of  Court. 

To  the  same  purpose  is  Archibold  in  his  Treatise  on 
Criminal  Pleading,  p.  60. 

Mr.  Wharton,  in  his  Treatise  on  American  Criminal 
Law,  (page  181-2,)  recognizes  the  doctrine  as  well  estab- 
lished, and  says :  "  If  the  finding  be  incomplete  or  insen- 
sible, it  is  bad.  Where  the  Grand  Jury  returned  a  bill  of 
indictment  which  contained  ten  counts,  for  forging  and 
uttering  the  acceptance  of  a  bill  of  exchange  with  an  in- 
dorsement "  A  true  bill  on  both  counts,"  and  the  prisoner 
pleaded  to  the  whole  ten  counts,  and  after  the  case  for  the 
prosecution  had  concluded,  the  prisoner's  counsel  pointed 
this  out,  the  finding  was  held  bad,  and  the  Grand  Jury 
being  discharged,  the  judge  would  not  allow  one  of  the 
Grand  Jurors  to  be  called  as  a  witness  to  explain  the  find- 
ing." 

There  being  no  controversy  with  regard  to  these  well  es- 
tablished principles,  we  are  led  to  enquire,  in  the  first  place, 
what  the  Grand  Jury  did  in  fact  find  when  they  presented 
to  the  court  the  indictment  upon  which  the  appellant  was 
actually  tried  and  convicted;  and  this  enquiry  very  natu- 
rally involves  the  consideration  of  the  effect  to  be  given  to 
the  various  indorsements  which  are  to  be  found  thereon, 
as  the  same  are  presented  by  the  record. 

To  hold  that  by  legal  intendment  every  indorsement 
which  appears  upon  an  indictment  is  the  act  of  the  Grand 
Jury,  and  to  be  taken  to  the  expression  of  their  will, 
would  be  as  dangerous  to  the  salutory  enforcement  of  the 
criminal  laws  of  the  country,  as  it  would  be  subversive  of 
the  plainest  dictates  of  enlightened  reason.  It  would  be 
to  substitute  a  violent  presumption  for  a  known  fact.  It  is 
the  duty  of  the  court,  in  considering  a  question  of  this  kind 
to  have  reference  to  the  practice  of  the  prosecuting  oflfi- 
cers  who  are  charged  with  the  duty  of  preparing  the  bills 
of  indictment  to  be   laid  before  the   Grand  Jury;   and   it 


684  SUPREME  COUET. 


Cherry  vs.  The  State — Opinion  of  Court. 

will  not  be  attempted  to  be  controverted  that  there  is  no 
practice  more  universally  observed  by  those  officers  than 
that  of  indorsing  upon  the  bill  the  title  of  the  case  and  a 
comprehensive  designation  of  the  nature  of  the  offence 
charged  in  the  body  of  the  bill,  thus 

The  State  of  Florida    | 

vs.  /•  Larceny. 

John  Styles.  j 

Now,  to  say  that  by  legal  intendment  this  indorsement 
must  be  taken  to  have  been  made  by  the  Grand  Jury, 
would  be  to  require  of  us  to  sacrifice  the  substance  to 
form,  and  thus,  by  the  merest  technicality,  (the  disregard 
of  which  can  never  be  attended  with  any  detriment  to  the 
person  charged,)  to  defeat  the  claims  of  justice.  We  judi- 
cially know  that  this  indorsement  is  the  act  of  the  prose- 
cuting officer,  and  that  it  is  not  the  act  of  the  Grand  Jury, 
and,  in  the  face  of  this  knowledge,  we  do  not  feel  tliat  we 
should  be  in  the  line  of  our  official  duty,  were  wc,  by  a 
strained  technical  interpretation,  to  make  the  record  sneak 
a  language  which  we  know  to  be  false.  This  indorsement 
is,  in  fact,  no  part  of  the  indictment.  It  is  not  atte>te<l  by 
the  Grand  Jury  as  their  act.  It  stands  upon  tlie  back  of 
the  indictment,  distinct  and  separate  from  tlie  in(lor?emer;t 
of  the  words  "A  true  bill,"  which  is  the  act  of  tlie  (Iranvl 
Jury,  authenticated  as  such  by  the  name  of  the  foreman 
attached  thereto.  It  is  a  mere  memoranda  of  tlte  prose- 
cuting officer,  placed  there  for  tlie  convenience  of  refer- 
ence, to  distinguish  it  from  other  papers  of  a  similar  cliar- 
acter,  and  the  indictment  would  be  just  as  valid  without 
as  with  the  indorsement.  It  imparts  no  \itniitv,  nor  d«  c^ 
it  give  any  validity  to  the  instrument.  But  it  was  insi-^tetl 
by  counsel,  that  it  was  to  be  presumed  where  a  Gran«l 
Jury  entered  upon  the  investigation  of  an  oiTonee.  thev 
had    reference    solely    to    the  particular  offence  dcsignate-l 


TERM  AT  JACKSONVILLE,  1856.  685 


Cherry  v«.  The  State — Opinion  of  Court. 


by  the  indorsement,  and  that  their  finding  must  be  limited 
to  the  offence  so  designated;  that  they  never  look  beyond 
such  indorsement,  and  make  no  reference  to  the  offence  as 
charged  in  the  body  of  the  bill ;  that  if  the  offence,  as  con- 
tained in  the  indorsement,  is  defectively  designated,  so  as 
to  be  either  incomplete  or  insensible,  the  finding  will  be 
bad. 

We  are  clearly  of  opinion,  that  the  premises  upon  which 
the  argument  is  based  are  false  in  point  of  fact,  and,  con- 
sequently, the  argument,  and  with  it  the  conclusion  must 
fail.  It  is  manifestly  the  duty  of  the  Grand  Jury,  when 
called  upon  to  discharge  the  grave  and  responsible  func- 
tions of  their  high  office,  to  examine,  in  the  first  place, 
with  due  care  and  deliberation,  the  bill  which  may  be  laid 
before  them,  in  order  to  ascertain  the  character  of  the 
charge.  It  is  not  to  be  presumed  that  officers  of  such  high 
dignity,  and  upon  which  such  mighty  responsibilities  de- 
volve, will  proceed  to  discharge  their  duties  in  a  careless 
or  negligent  manner.  It  is  true  that  this  body  is  not 
usually  composed  of  lawyers;  but  the  law  of  their  consti- 
tution has  assumed  that  they  are  competent  to  the  dis- 
charge of  their  appropriate  functions;  and  a  proper  defer- 
ence for  a  co-ordinance  branch  of  the  judiciary  would  lead 
us  to  the  conclusion,  that  in  the  discharge  of  those  duties 
they  are  ever  zealous  in  the  observance  of  a  degree  of  cir- 
cumspection fully  commensurate  with  tlie  high  responsi- 
bility of  their  station.  Besides,  they  have,  in  the  person 
of  the  prosecuting  attorney,  a  law  officer  whose  duty  it  is 
to  instruct  them  upon  all  legal  points.  They  also  have  at 
all  time  free  access  to  the  presiding  Judge  for  the  solu- 
tion of  all  legal  questions  with  regard  to  which  they  may 
desire  information. 

It  was  further  insisted,  as  a  matter  of  argument,  that   a 
defective  designation  of  the  offence,  as  named  in    the    in- 


686  SUPREME  COURT. 


Cherry  vb.  The  State — Opiofon  of  Court, 

dorsement,  might  and  probably  would  operate  to  mislead 
the  Grand  Jury  into  a  finding  different  from  that  which 
they  may  have  intended.  Such  mischief,  should  it  occur, 
would  be  clearly  referable,  not  to  any  want  of  soundness 
in  the  principles  which  we  have  laid  down  for  the  govern- 
ment of  their  investigations,  but  to  a  disregard  of  those 
principles  and  a  culpable  neglect  of  duty. 

It  is  not  denied  that  a  Grand  Jury  have  the  right  to 
qualify  and  limit  their  finding  to  any  extent  that  they 
may  deem  proper  under  the  circumstances  and  facts 
which  may  be  developed  by  the  investigation  of  the  case  ; 
and  the  effect  of  that  qualification  or  limitation  will  be 
either  to  reduce  the  finding  to  the  lesser  offence  charged 
in  the  body  of  the  bill,  or  to  entirely  invalidate  it  as  an 
indictment.  In  the  latter  case,  it  may  be  viewed  as  an 
indication  to  the  prosecuting  officer  to  prepare  a  bill  suit- 
able  to  the  facts  of  the  case.  But  a  limitation  or  qualifi- 
cation of  the  finding  must  not  be  presumed.  The  finding 
must  be  taken  to  be  general  and  referable  solely  to  the 
charge  set  forth  in  the  body  of  the  indictment,  unless  it 
can  be  reasonably  inferred  from  the  collocation  of  the 
words  that  such  qualification  or  limitation  were  intended. 
It  will  not  be  permitted  to  distort  the  finding  of  the  jury 
by  forcibly  connecting  the  words  of  the  finding  (as  is 
sought  to  be  done  in  this  case)  with  the  incomplete  de- 
scription of  the  offence  to  be  found  in  the  usual  indorse- 
ment of  the  prosecuting  attorney.  The  argument  of  the 
appellant's  counsel  proceeds  upon  the  assumption,  first, 
that  the  indorsement  referred  to  is  essential  to  the  validity 
of  the  indictment,  and  secondly  that  as  an  essential  part 
of  the  indictment,  it  should,  to  be  good,  contain  a  full  and 
complete  designation  of  the  offence  intended  to  be  charged. 

Xeither   of   these   positions   are   we   prepared   to    admit. 
We  have  before  intimated  that   the   usual    indorsement    of 


TERM  AT  JACKSONVILLE,  1856.  687 


Cherry  vs.  The  State — Opinion  of  Court. 


the  prosecuting  attorney  constitutes  no  portion  of  the  in- 
dictment, and  that  the  indictment  would  be  as  valid  were 
no  fuch  indorsement  placed  upon  it.  As  a  mere  memo- 
randa of  the  prosecuting  officer,  placed  thereon  for  the 
convenience  of  reference,  it  is  sufficient  that  the  indorse- 
ment contain  a  comprehensive  designation  of  the  offence. 
Were  it  otherwise,  there  are  many  statutory  offences 
which  it  would  be  unsafe  to  attempt  to  designate  other- 
wise than  by  incorporating  all  the  ingredients  necessary 
to  constitute  a  formal  and  legal  charge,  and  for  the  accom- 
plishment of  which  the  back  of  the  indictment  would  not 
afford  sufficient  space.  As  a  matter  of  precaution,  how- 
ever, the  designation  of  the  offence  in  the  indorsement 
ought  not  to  be  so  foreign  from  the  character  of  ttie  offence 
charged  in  the  body  of  the  indictment  as  to  be  calculated 
to  mislead  the  jury  in  their  investigations. 

The  indorsement  in  this  case,  we  think  is  sufficiently 
descriptive  to  point  with  unerring  certainty  to  the  par- 
ticular offence  charged  in  the  body  of  the  bill,  and  that  it 
could  not  by  any  probability  operate  to  mislead  them. — 
The  act  of  fornication,  though  not  constituting  the  entire 
offence,  is,  however,  the  gravemen,  and  had  the  indorse- 
ment been  merely  "Fornication,"  it  would  not,  in  our 
opinion,  have  invalidated  the  indictment. 

Tims  far  we  have  addressed  ourselves  exclusively  to  the 
bill  of  indictment,  with  the  several  indorsements  thereon, 
and  the  conclusion  that  we  have  arrived  at  is,  that  it  is 
sufficient  both  in  form  and  substance  to  support  the  con- 
viction had  thereon. 

'\  e  now  approach  the  consideration  of  another  point    in 

t  (    CO,  which  at  the  first    blush    would    seem  to    involve 

;      3;    I! irv  of  greater  difficulty,    viz:    The     validity  of  the 

]     '^  c    t'^e  Grand  Jury  as  set  forth  and  recorded  in   the 

tiiir    'r     (ff   the   proceedings   of   the   Circuit    Court.    That 


688  SUPREME  OOUBT. 

Cherry  vs.  The  State — Opinion  of  Conrt. 

Record  is  as  follows :  "  And  now  on  the  24th  day  of 
March,  A.  D.  1855,  came  Grand  Jury  into  open  court  and 
made  the  following  presentment  to-wit : 

The  State  of  Florida,    /  ^      ...         ..,  ,       ,   .       , 

\  Fornication  with  a  colored  female. 

yf;  )      A  true  bill." 

James  Cherry.  ( 

Standing  by  itself — isolated  and  unconnected  with  the 
other  parts  of  the  record,  we  greatly  doubt  whether  such 
a  record  of  the  finding  would  be  sufficient,  for  in  the  lan- 
guage of  the  objection,  it  would  be  the  finding  of  an  offence 
not  known  to  the  law.  But  such  isolation  does  not  exist  ; 
the  same  record  that  informs  us  of  the  character  of  the  find- 
ing, also  informs  us,  (by  setting  it  out  in  extenso)  of  the 
particular  bill  of  indictment  then  and  there  presented. 

Every  portion  of  the  record  before  us  is  entitled  to  equal 
credit,  and  if  we  give  credence  to  that  portion  of  it  which 
sets  out  the  finding,  we  must  give  the  same  degree  of  cre- 
dence to  that  portion  which  connects  the  finding  with  and 
makes  it  application  to  tlie  particular  bill  of  indictment 
upon  which  the  appellant  was  tried  and  convicted.  The 
rule  which  requires  the  observance  of  great  particularity 
in  the  record  of  the  finding,  is  based  upon  the  principles 
of  enlightened  sense,  and  it  is  but  reasonable  that  the  ap- 
plication of  the  rule  should  be  subjected  to  like  principles. 
All  that  is  necessary  in  a  case  like  this  is,  that  there  should 
be  such  an  identity  between  the  record  of  the  finding  and 
the  particular  bill  of  indictment  to  which  it  is  made  to  ap- 
ply, as  to  leave  no  room  for  mistake  or  doubt.  This  record, 
we  think,  furnishes  that  identity,  and  the  appellant  has 
therefore  had  the  benefit  of  the  rule. 

It  has  been  said  by  some  who  contend  for  a  greater  de- 
gree of  strictness,  that  the  record  of  the  finding  must  be  so 
fully  perfect  and  complete  of  itself  as  not  to  require  any 
extraneous  aid  in  order  to  establish   its   identity  with    and 


TERM  AT  JACKSONVILLE,  1856.  689 

Cherry  vs.  The  State — Opinion  of  Court, 

applicability  to  the  particular  offence  for  which  the  party 
may  be  tried.  To  demonstrate  the  unsoundness  of  this 
doctrine,  suppose  that  the  Grand  Jury  should  return  into 
court  at  the  same  time,  two  separate  bills  of  indictment 
against  one  and  the  same  individual — the  one  for  the  mur- 
der of  A.  and  the  other  for  the  murder  of  B.  The  usual 
record  of  the  finding  in  each  case  would  simply  be,  that 
the  Grand  Jury  came  into  court  on  a  certain  day  of  the 
term  and  made  a  presentment  against  the  party  for  "mur- 
der," without  designating  for  the  murder  of  A.  or  for  the 
murder  of  B.  Suppose  further,  that  the  party  is  tried  and 
convicted  upon  only  one  of  these  indictments  and  he  brings 
his  case  to  this  court  upon  a  writ  of  error.  By  what 
means  other  than  by  a  reference  to  the  indictment  spread 
out  upon  the  record  could  we  establish  the  necessary 
identity  between  the  record  of  the  finding  and  that  par- 
ticular indictment?  TJie  name  of  the  party  murdered  is 
mentioned  in  neither  of  the  findings  and  it  seems  to  us 
that  it  would  be  morally  impossible  to  establish  the  iden- 
tity without  a  resort  to  the  indictment  itself.  Tiiis  exam- 
ple among  many  others  that  might  be  cited,  clearly  illus- 
trates the  unsoundness,  and  indeed,  the  utter  impractica- 
bility of  the  doctrine  contended  for. 

But  there  is  another  view  of  the  question  which  to  our 
mind  is  equally  convincing.  The  same  reason  that  exists 
for  our  taking  notice  of  the  practice  of  the  prosecuting  at- 
torneys with  regard  to  the  indorsements  which  they  usually 
put  upon  the  bills  that  they  prepare  for  the  action  of  the 
Grand  Juries,  equally  operates  to  induce  us  to  take  notice 
of  the  practice  of  the  clerks  with  regard  to  the  entry  of 
the  findings  upon  the  minutes  of  the  court.  We  know 
oflBcially,  that  it  is  the  invariable  practice  of  the  clerks 
in  entering  the  findings  of  the  Grand  Jury,  to  adopt  the 
designation  of  the  offence  contained  in  the  indorsement   of 


690  SUPREME  COUBT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Statement  of  Case. 

the  prosecuting  attorney.  To  shut  our  eyes  to  this  acknowl- 
edged practice,  would  be  to  make  a  solemn  farce  of  the 
forms  of  criminal  jurisprudence  and  to  subvert  the  saluta- 
ry ends  of  the  law.  We  are  not  insensible  to  the  rule 
which  require  the  proper  observance  of  strictness,  where 
property,  reputation  and  life  are  at  stake;  but  the  degree 
of  strictness  spoken  of  in  the  books  is  such  as  is  conforma- 
ble to  rational  principles  and  not  such  as  is  calculated  to 
defeat  the  ends  of  justice. 

We  are  aware  that  in  the  views  expressed  in  this  opin- 
ion, we  have  trenched  somewhat  upon  the  doctrines  laid 
down  in  one  portion  of  the  opinion  delivered  in  the  case  of 
Holten  vs.  The  State,  (2  Florida  Keports,  476;)  but  without 
intending  to  impugn  the  decision  in  that  ca^e,  (which  upon 
a  consideration  of  the  whole  record  might  very  well  be 
sustained,)  we  may  be  permitted  to  express  the  opinion, 
that  upon  this  particular  branch  of  that  case,  the  court 
evidently  pushed  the  argument  to  an  extremity  which 
is  sustained  neither  by  sound  reason,  nor  even  by  the  prin- 
ciple of  the  case  cited  in  its  support. 

Let  the  judgment  of  the  Circuit  Court  be  affirmed  with 
costs. 

PEARSON,  J.,  dissented. 


Kelly,  Timanus  &  Co.,  Appellants,  vs.    Andrew    Wal- 
lace, Trustee,  &c,.  Appellee. 

1.  The  Instractioo  of  the  Circuit  Judge  In  the  case  was,  that  the  principal,  the 
person  hiring  a  negro  slave,  was  responsible  for  his  loss  through  carelen- 
ness  or  misconduct  of  his  agent ;  again,  that  ff  an  agent  hears  that  a  negro 
cannot  swim,  and  gives  an  order  which  no  prudent  man  with  his  knowledse 
would  give,  he  is  responsible  for  the  injury  resulting  from  such  Improper 
act;  held  that  this  ruling  was  right. 


TERM  AT  JACKSONVILLE,  1856.  691 

Kelly  et  al.  vs.  Wallace,  TniHtee.  Ac. — Statement  of  Caae. 

2.  From  the  evidence,  it  appeared  that  the  negro,  lost  by  drowning  In  the  ser- 
vice of  the  defendants,  was  a  green  hand  at  the  mill — afraid  of  water — was 
near  drowning  before,  having  been  rescued  by  others,  a  fact  known  to  the  su- 
perintendent :  that  the  employment  he  was  put  to  was  dangerous  and  requir- 
ing great  ezpertness  in  getting  logs  out  of  a  pen  in  the  water  of  the  depth 
of  from  two  and  a  half  to  eight  and  ten  feet  deep. 

Held,  under  these  facts,  that  the  order  was  Illegal  and  Improper,  and  defend- 
ants liable  for  the  loss. 

Appeal  from  the  Circuit  Court  of  Duval  county. 

This  was  an  action  on  the  case  instituted  to  recover  the 
value  of  a  negro  slave  alleged  to  have  been  drowned  in 
the  service  of  the  appellants  through  the  negligence  or  im- 
proper conduct  of  their  agent. 

The  appellants  pleaded  not  guilty  in  the  court  below, 
and  an  issue  being  submitted  on  the  plea,  a  verdict  and 
judgment  were  rendered  in  favor  of  the  appellee,  who  was 
the  plaintiff  below. 

On  the  trial  of  the  cause,  the  following  testimony  was 
offered  to  the  jury  by  the  parties  respectively,  viz : 

For  Plaintiff,  Benjamin  Kcmble,  l>eing  sworn,  testified 
as  follows: 

Knows  the  Defendant,  was  in  tlieir  employ  in  1853,  in 
Jacksonville,  as  agent  and  superintendent.  While  in  their 
employment  had  in  charge  a  negro  man  named  Peter,  who 
was  hired  of  Dr.  Murdock;  he  was  a  short,  thick-set 
black  bov  about  26  or  30  vears  old.  He  was  hired  by  the 
year  at  so  much  a  month,  thinks  it  was  $15  per  month — 
the  negro  was  found  dead  in  the  water;  was  drowned  while 
he  was  at  work  at  the  mill — he  was  found  drowned  sup- 
posed he  was  drowned  at  the  mill — he  was  found  at  Finne- 
gan's  wharf;  he  was  at  work  in  the  boom,  when  drowned, 
by  order  of  witness.  In  the  boom  the  deepest  water  is  about 
8  feet.  Another  boy  named  Major  was  sent  outside  by  wit- 
ness for  a  particular  stick;  he  told  Peter  to  go  for  it,  who 
did  80 ;  it  was  then  when  he  was  drowned.  Witness  did  not 


692  SITPEEME  COXJET. 


Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Statement  of  Case. 


send  Peter  for  said  stick  but  sent  him  into  the  boom;  there 
were  round  and  sided  logs  in  the  boom;  the  stick  Peter 
went  after  outside  was  a  very  large  sided  stick.  Has 
known  Peter  to  fall  into  the  river  previous  to  that  time,  at 
least  Peter  said  he  fell  in  and  has  seen  him  in  the  water. — 
The  hoy  Peter  said  the  dog  saved  him  once  from  drown- 
*w^;  (this  was  objected  to  by  defendant's  counsel,  and  ob- 
jection reversed,)  this  was  when  he  was  in  the  employ  of 
Kelley,  Timanus  &  Co.;  never  knew  him  to  fall  into  the 
river  at  any  other  times  than  those  mentioned.  The  ne- 
gro said  he  could  not  swim;  (this  was  not  objected  to.) 
He  was  found  on  Sunday  morning,  and  was  drowned  on 
Friday. 

Cross  Examined, — The  negro  went  to  put  the  logs  in  the 
boom.  The  water  was  only  21^  feet  but  grew  deeper  as  you 
went  out  into  tlie  stream.  From  the  log  to  the  opening  of 
the  boom  the  water  was  not  over  2i/2  feet  deep.  Witness  was 
told  that  the  boys  were  hired  to  work  at  the  mill;  no  par- 
ticular work  was  specified  ;  sometimes  we  had  one  in  the 
boom  and  tlien  another,  (this  was  objected  to  by  plaintifiPs 
counsel;)  the  risk  of  life  is  net  greater  on  boom  work  than 
other  work  in  tlie  mill;  (this  was  also  objected  to.)  When 
we  hired  men  at  the  mill,  we  generally  put  them  at  such 
work  as  we  thought  them  bcFt  qualified  to  perform,  and 
which  was  most  profitable.  Was  not  present  when  Major 
told  Peter  to  go  after  the  log;  when  the  negro  was  missed 
Major  then  said  he  had  sent  him,  Peter,  and  had  not  heard 
of  him  since;  did  not  see  Peter  engaged  in  getting  tliis  log; 
witno--^  ?ay«^  Pel  or  was  not  exposed  to  any  more  danger  than 
any  other  hands  on  the  mill  from  order  of  any  one;  (this  was 
also  objected  to  by  counsel  for  plaintiff.)  Tliis  negro  was 
only  employed  in  the  log  pen  at  times;  he  was  about  the 
work,  and  was  not  in  the  pen  more  than  other  hands,  and 
not  as  much  as  Feme;  most  always  with  some  other  hands; 


TERM  AT  JACKSONVILLE,  1856.  693 

Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Testimony. 

he  was  good  at  hauling  logs  into  the  mill,  that  is  fixing 
them  for  that  purpose.  The  log  Peter  went  after  was  about 
40  feet  long — it  was  a  heavy  log.  No  one  ever  saw  Peter 
out  side  of  the  boom;  no  one  knew  what  had  become  of 
him;  they  missed  him  and  thought  perhaps  he  had  run 
away  as  he  was  subject  to  run  away;  he  run  away  from 
witness  once  and  was  gone  a  month;  was  a  superintendant 
at  the  mill  of  "Kelly,  Timanus  &  Co.  The  log  was  on  the 
shore  when  Major  was  sent  for  it;  we  afterwards  found  it 
at  Finnegan's  wharf;  knew  it  was  the  same  log. 

Those  parts  of  the  direct  examination  which  were  objec- 
ted to  by  defendants'  counsel  were  then  and  there  permit- 
ted by  the  court  to  be  read  to  the  jury,  whereupon  the  de- 
fendant's counsel  tlreri  and  there  excepted. 

The  plaintiffs  counsel  then  called  William  H.  Dupray, 
who  testified  as  follows: 

Was  in  the  employ  of  defendants  in  the  year  1853  at 
their  mill  in  this  county;  knew  the  boy  Peter,  who  was 
hired  there;  has  heard  that  he  was  hired  of  Doctor  Mur- 
dock;  he  was  an  ordinary  negro  about  25  years  of  age;  he 
was  very  good  at  the  work  he  was  put  at. 

The  boy  was  drowned  while  witness  was  at  the  mill; 
can't  say  when  he  was  drowned;  has  seen  him  employed 
in  the  log  pen  two  or  three  times;  witness  saw  him  the 
day  previous  in  the  pen;  saw  him  the  morning  he  was 
drowned  for  the  last  time;  out  side  of  the  boom  the  water 
is  deep;  don't  know  whether  the  boom  was  open  the  day 
the  boy  was  drowned;  there  was  a  stick  outside  on  the 
day  before;  the  logs  were  hauled  from  the  inside  of  the 
boom  into  the  mill;  does  not  know  whether  the  boy  could 
not  swim;  does  not  know  that  the  defendants  or  Mr.  Kem- 
ble  knew  he  could  not  swim. 

J.  W.   Moore  was  called   by  the  plaintiff,   and  testified 
as  follows  to  wit : 
46 


694  SUPREME  COURT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Testlmonj. 

Was  in  the  employ  of  the  defendants  in  1853;  knew  Pe- 
ter; has  heard  Mr.  Kemble  say  he  was  hired  from  Doctor 
Murdock;  he  was  about  25  years  of  age;  he  was  a  valua- 
ble negro;  he  was  generally  employed  in  the  log  pen;  at 
the  outer  edge  of  the  boom  the  water  is  10  or  12  feet  deep; 
inside,  the  water  is  shallow;  the  logs  sometimes  lie  all  over 
the  pen,  and  often  are  lying  against  the  outer  edge,  and 
have  to  be  removed  from  there  to  get  to  the  mill;  it  is  dan- 
gerous employment  for  a  person  to  go  to  the  outer  edge  of 
the  boom  to  get  logs  for  the  mill,  particularly  one  that 
could  not  swim;  thinks  this  was  not  proper  employment 
to  set  one  at  that  could  not  swim;  thinks  the  boy  could 
not  swim,  for  witness  saw  him  before  off  of  a  log  and  went 
to  his  rescue;  thinks  he  would  have  been  drowned  then 
if  he  had  not  been  helped;. Mr.  Kemble  saw  this  and 
knew  of  it;  this  was  the  only  boy  of  the  name  of  Peter 
hired  at  the  mill  by  Doctor  Murdock;  the  bank  goes  out 
gradually  into  deep  water;  it  is  about  40  feet  from  the 
shore  to  the  outside  of  the  boom ;  when  hands  are  sent 
for  logs  they  are  usually  sent  all  over  the  boom  for  logs 
of  particular  size;  does  not  know  what  the  custom  was 
in  setting  men  at  work;  40  or  50  yards  from  the  slip  to 
the  boom. 

John  Chapman,  called  by  plaintiff,  testified  as  follows, 
to  wit : 

Was  in  the  employment  of  defendants  in  1853 ;  knew 
the  boy  "Peter;"  thinks  that  it  was  generally  known  that 
he  could  not  swim;  thinks  Mr.  Kemble  knew  it;  Peter 
always  acted  as  though  he  was  afraid  when  he  went  near 
the  deep  water;  has  known  Mr.  Kemble  to  send  him  to 
the  outer  boom  for  logs;  thinks  it  was  understood  by  Mr. 
Kemble  that  the  boy  could  not  swim,  because  he  picked 
him  to  go  for  logs,  and  was  always  kicking  and  cuffing 
him. 


TERM  AT  JACKSONVILLE,  1856.  695 

Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Testimony. 

James  M.  Daniels  called  for  plaintiff. 
Knew  the  boy  "Peter;"  has  always  understood  he  was 
the  property  of  Doctor  Murdock's  wife,  and  belonged  to 
Andrew  Wallace,  as  trustee  for  her;  knows  of  no  other 
boy  of  the  name  belonging  to  them  or  in  the  possession  of 
Dr.  Murdock;  he  was  in  the  employ  of  defendants,  and 
general  rumor  says  he  was  drowned;  he  was  a  valuable 
negro;  knows  of  negroes  that  sold  for  $1,200;  thinks  he 
was  drowned  in  1853;  Dr.  Murdock  bought  some  at  that 
price  not  as  good ;  could  not  say  of  his  own  knowledge 
what  the  value  of  that  boy  was. 

Joseph  Finnegan  swore  for  plaintiff. 

Bought  some  negroes  in  the  fall  of  1853;  thinks  they 
were  worth  $1,000  in  the  spring  and  summer  of  those 
years. 

Here  plaintiff  rested. 

George  K.  Fairbanks  swore  for  defendants. 
Has  charge  of  a  mill  in  this  town;   has   been  accustomed 
to  hire  negroes. 

Counsel  for  defendants  here  proposed  to  ask  the  witness 
what  was  the  general  custom  among  mill  men  in  hiring 
negroes;  whether,  when  hired,  generally,  they  were  cm- 
ployed  in  any  work  about  the  mill  the  managers  saw  fit  to 
put  them  at  by  such  custom.  This  evidence  wa<?  objected 
to  by  plaintiff's  counsel,  which  objection  was  sustained  by 
the  court  and  the  testimony  rejected.  Whereu|)on  tlie  de^ 
fendant's  counsel  then  and  tliere  excepted. 
James  H.  McRoy,  Jr.,  sworn : 

Heard  the  testimony  of  Kemhle  read;  remembers  the 
siding  log  spoken  of;  saw  it  outside  of  tlie  boom  and  re- 
quested Mr.  Kemble  to  get  it  in;  he  said  he  would  send 
Major  after  it;  the  next  witness  heard  was  that  Peter  was 
drowned;  thinks  good  negroes  were  worth  at  that  time 
from  $800  to  $1,000. 


696  SUPREME  COUBT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Ctaarge  to  Jair. 

,  •  -  —  18  .^i. 

\ 

Wm.  H.  Dupray  sworn : 

Says  that  the  negro  was  a  very  ordinary  negro,  and  did 
ordinary  work  about  the  mill;  considered  him  an  ordinary 
negro;  he  was  not  placed  at  sawing;  don't  think  his  ser- 
vices about  the  mill  as  valuable  as  others;  he  bore  the 
name  of  runaway. 

Here  defendants  rested. 

The  court  then  charged  tlie  jury  as  follows : 

"The  plaintiff  in  this  action  brings  this  suit  for  the  re- 
covery of  a  negro  named  Peter,  who,  it  is  alleged,  was 
hired  to  the  defendants,  and  while  in  the  employment  of 
the  defendants,  owing  to  their  negligence  and  want  of  or- 
dinary care,  was  drowned  and  lost  to  the  plaintiff.  The 
hiring  of  a  slave  constitutes  a  bailment  of  the  slave,  and  in 
sucli  hiring,  as  in  the  hiring  of  any  other  personal  pro- 
perty, the  person  hiring  is  bound  to  take  ordinary  care  of 
liim,  and  must  answer  for  ordinary  neglect.  If,  therefore, 
you  find  from  the  evidence  that  said  negro  was  the  pro- 
perty of  the  plaintiff,  and  was  hired  to  the  defendants,  and 
while  in  their  employment  he  was  lost  through  the  care- 
lessness and  misconduct  of  the  defendants  or  their  agent, 
then  the  plaintiff  is  entitled  to  recover.  In  all  ordinary 
transactions  (not  criminal)  a  principal  is  liable  for  any  act 
of  his  agent  where  there  is  negligence,  if  done  within  tlie 
scope  of  his  authority.  If,  therefore,  you  find  from  the 
evidence  that  an  order  was  given  to  the  said  slave  Peter 
by  a  person  in  the  employ  of  the  defendants,  who  had  au- 
thority from  them  to  do  so,  which  no  ordinary  prudent 
man  would  have  given,  and  that  in  consequence  of  said 
order  the  negro  was  lost,  then  the  plaintiff  is  entitled  to 
recover;  but,  if  such  order,  in  your  opinion,  was  not  an 
unusual  one  under  the  circumstances,  and  that  there  was 
not  negligence  in  giving  the  order,  then  the  plaintiff  is  not 
entitled  to  recover.     If  you  find  from  the  evidence  that  the 


TERM  AT  JACKSONVILLE,  1866.  697 

— 

Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Argument  of  Counsel. 

agent  of  the  defendant  knew  that  the  said  Peter  could  not 
swim,  and  he  knowing  this,  gave  an  order  to  said  Peter 
within  his  scope  of  authority^  as  such  agent,  which  order 
no  prudent  man  with  this  knowledge  would  have  given, 
tlien  the  knowledge  of  the  fact  that  he  could  not  swim  by 
the  said  agent  is  sufficient.  It  was  the  duty  of  the  defend- 
ants to  employ  careful  and  capable  agents. 

To  all  and  every  part  of  which  charge  the  defendant's 
counsel  then  excepted. 

Philip  Fraser  and  G.  TF.  Call,  for  Appellants. 

The  appellants,  who  are  mill  men,  hired  Peter  of  appel- 
lee by  general  contract  for  service  at  their  mill.  During 
the  term  an  agent  of  the  appellants  sent  the  boy  to  the 
boom  to  run  logs  to  the  mill.  While  there  he  was  sent  by 
another  negro  outside  the  boom  for  a  loose  log,  and  in  that 
service  was  drowned. 

It  was  proven  Peter  said  he  could  not  swim.  Testimony 
was  offered  and  refused  as  to  the  custom  of  mill  men. 

We  take  the  following  points : 

1st.  The  declarations  of  the  boy  that  he  could  not  swim 
were  not  admissable  evidence. 

2nd.  The  testimony  of  the  custom  of  mill  men  should 
have  been  received.— 17  Ala.,  379;  U.  S.  Digest,  1853, 
75,  §  45. 

3d.  The  charge  of  the  court  was  calculated  to  produce 
the  impression  that  Peter  was  drowned  in  obeying  an  or- 
der of  appellants,  which,  not  being  true,  the  charge  was 
error. — 14  Geo.,  136. 

4th.  It  was  error  to  leave  the  question  of  negligence  to 
the  jury.    It  is  a  question  of  law  for  the  court. 

5th.  It  is  not  negligence  to  send  one  who  cannot  swim 
upon  the  water. 

6th.  Under  a  general  contract  of  hiring  the  owners  will 


698  SUPREME  COURT. 

Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Argument  of  Counsel. 

be  presumed  to  have  consented  to  the  necessary  risks. — 2 
Wheaton,  100;  2  Richardson,  458;  11  Iredell,  640;  U.  S. 
Digest,  1851,  59,  §  11;  4  Porter,  239;  1  U.  S.  Digest,  374; 
§  138. 

McQueen  Mcintosh,  for  Appellee. 

The  bailment  of  a  slave  was  a  contract  technically 
known  as  "locato  rei/'  (letting  to  hire,)  and  is  well  de- 
fined by  Justice  Story  in  his  quotation  from  Pothier. 
Story  on  Bail,  mar.  p.  368. 

And  the  use  and  enjoyment  of  the  thing  bailed  does  not 
contemplate  its  misuse  and  abuse,  or  its  entire  destruction. 

The  contract  is  one  involving  mutual  and  reciprocal  ob- 
ligation— both  parties  are  mutually  benefitted;  but  as  the 
owner,  who  has  never  parted  with  his  proprietary  interest, 
anticipates  a  return  of  his  property,  he  reasonably  expects 
that  the  bailee  will  confine  himself  to  its  reasonable  use 
and  enjoyment,  and  that  he  will  preserve  and  protect  it 
with  reasonable  care. — 2  Kent  Com.,  mar.  p.,  589,  (5  ed.) 

The  implied  obligation  to  protect  the  property  is  as 
much  an  element  in  the  contract  as  the  express  engage- 
ment to  pay  the  hire  therefor,  and  this  undertaking  is  tm- 
pHed  by  law. — Story  Bail,  mar.  p.,  373,  citing  Pothier  in 
note ;  Walker's  Am.  Law,  406,  408. 

If,  then,  under  a  general  hiring,  the  implied  obligation 
to  use  the  subject  bailed  with  reasonable  care  constituted 
a  part  of  the  agreement,  these  defendants  are  liable  to  the 
plaintiff,  not  only  for  their  own  acts,  but  for  the  culpable 
negligence  and  mismanagement  of  those  who  act  under 
their  authority. — Wood's  Inst.,  237;  Coop.  Inst.,  279;  1 
Dom.  Civ.  L.,  97,  98,  §  1,  3,  4,  5,  6;  3  Petersd.  Com.  L., 
257,  citing  Coggs  vs.  Bernard. 

The  bailee  must  not  only  use  the  property  let  to  hire  as 
the  owner  would,  but  he  must  exercise  all  the  care  consis- 


TERM  AT  JACKSONVILLE,  1856.  699 

Kelly  et  al.  vs.  Wallace,  Trustee.  &c. — Argument  of  Counsel. 

tent  with  the  value  of  the  hiring  and  the  nature  of  his  con- 
tract.— Hice,  183,  Coggs  vs.  Bernard.  Cited  in  Smith's 
Lead.  Cases,  17  Law  Lib.,  mar.  p.  91 ;  Story  Bail,  268. 

The  contract  of  hiring,  as  well  as  the  use,  may  be  im- 
plied, although  there  is  no  contract  between  the  owner  and 
the  hirer;  and  it  does  not  matter  whether  the  loss  of  a 
slave  by  death  occurred  by  reason  of  his  want  of  skill  or 
not. — King  vs.  Shanks,  12  B.  Mun.  Cited  in  12  U.  S. 
Dig.,  74. 

And  whenever  a  slave  is  lost  and  it  appears  that  he  ex- 
posed himself,  the  presumption  will  be  that  he  did  not 
voluntarily  expose  himself,  and  that  his  loss  was  not  occV 

sioned  by  his  own  act. Ivy  vs.  Wilson,  Cheves  Law  Rep., 

74. 

The  abuse  of  a  lawful  possession,  or  an  appropriation  of 
the  subject  hired  to  a  purpose  other  than  that  contem- 
plated by  the  owner  thereof,  is  a  conversion  of  it,  and  if 
used  in  a  different  manner  or  for  a  different  purpose,  or 
for  a  longer  time  than  was  agreed  by  the  parties,  the 
bailee  is  answerable  for  all  damages  and  even  for  a  loss 
which  due  care  could  not  have  prevented. — Duncan  vs.  R. 
R.  Co.,  2  Rich.  So.  Ca.  Rep.,  613,  citing  Strawbridge  vs. 
Turner,  9  Law  Rep.,  613;  Homer  vs.  Thwing,  3  Pick., 
492;  Mayor  of  Columbus  vs.  Howard,  6  Geo.  213;  Luns- 
ford  vs.  Ba}Tiham,  10  Hump.,  242.  Cited  from  12  U.  S. 
Dig.,  74,  §  24. 

The  law  of  bailments  is  the  same,  no  matter  bv  what 
lawful  means  the  subject  is  in  the  hands  of  the  possessor. 
Jones  Bail.,  48,  citing  in  note.  Lord  Raymond. 

If  in  the  trial  of  a  civil  issue,  the  court  see  that  justice 
has  been  done  between  the  parties,  they  will  not  set  aside 
the  verdict  nor  enter  into  a  discussion  of  the  question  of 
law. — Edmondson  vs.  Machell,  2  Durn.  &  East,  4;  Smith 
vs.  Page,  2  Salkeld,  644;  Deetly    vs.    Msarine,    ibid,    646; 


700  SUPREME  COUBT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Opinion  of  Court. 

Cox  VS.  Kitchen,  1  Bos.  &  Pull.,  338;  Brazier  vs.  Clapp, 
5  Mass.,  mar.  p.  10;  Eemington  vs.  Congdon,  2  Pick,  310; 
Peters  vs.  Bamhill,  1  Hill  S.  C.  Sep.,  234;  E.  M.  Charl- 
ton, 7;  Peck  vs.  Land,  2  Geo.,  16,  17;  Ames  vs.  Baker, 
411,  173;  Stroud  vs.  Mays  et  al,  7  ibid,  269;  Killen  vs. 
Listrienk,  7  ibid,  283 ;  Spears  vs.  Smith,  7  ibid,  436 ; 
Lang  et  al.  vs.  Hopkins,  10  ibid,  37;  Arrington  vs.  Cheny, 
10  ibid,  429. 

Court  did  not  err  in  permitting  the  negroe's  statements 
to  Kemble  to  be  given  to  the  jury. — 1  Geo.,  511. 

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

This  is  a  suit  instituted  to  recover  the  value  of  a  negro 
man  slave,  alleged  to  be  drowned  in  the  service  of  defend- 
ants, through  the  negligence  or  improper  conduct  of  their 
agent. 

One  error  complained  of  is  in  the  charge  to  the  jury, 
given  by  the  judge  of  the  circuit.  Its  correctness  can 
alone  be  ascertained  by  a  full  understanding  of  the  testi- 
mony, which  it  is  not  proposed  to  give  in  detail,  but 
rather  a  summary  -of  its  contents.  Peter,  the  slave  giv- 
ing rise  to  this  contest,  was  hired  to  work  at  a  saw- 
mill owned  by  defendants  in  Jacksonville,  on  the  St 
Johns  river,  for  a  year,  at  the  rate  of  $15  a  month.  He  was 
of  the  age  of  about  25  or  30,  variously  described  by  the  wit- 
nesses as  "ordinary,  very  ordinary,  as  an  awkward  green 
hand,  and  his  services  as  not  valuable;  as  valuable,  very 
good  at  the  work  he  was  put  at,  good  at  hauling  logs  into 
the  mill,  that  is  fixing  tliem  for  that  purpose."  The 
nature  of  the  employment  in  which  he  was  enagged  when 
drowned  may  be  thus  described :  The  pen  or  boom  is  an 
enclosure  in  the  water  near  the  mill,  made  to  secure  logs 
designed  for  sawing.  "The  water  in  it,  for  the  most  part> 
is  21/2  ^^et  deep,  extending  to  8  feet,  whilst  at  the  outer 
edge  it  is  11  or  12  feet."    "The  logs  lie  all  over  the  boom, 


TERM  AT  JACKSONVILLE,  1856.  701 

Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Opinion  of  Court, 

often  are  lying  at  the  outer  edge,  and  have  to  be  removed 
from  there  to  be  got  to  the  mill  when  hands  are  sent  for 
logs  of  a  particular  size.  They  are  usually  all  over  the 
boom."  It  is  stated  by  one  witness  to  be  "a  dangerous 
employment  for  a  person  to  go  to  the  outer  edge  to  get 
logs,  particularly  for  one  that  could  not  swim."  The 
superintendent  of  the  mill  thinks  that  the  risk  of  life  is  con- 
sidered no  greater  than  other  work  at  the  mill,  &c. ;  says 
Peter  was  not  exposed  to  any  more  danger  than  any  other 
hand  in  the  mill.  He  states  that,  "the  boy  told  him  he 
could  not  swim;  that  he  fell  into  the  river  on  a  prior  oc- 
casion— at  least,  Peter  said  he  fell  in;  he  saw  him  in  the 
water,  and  Peter  said  a  dog  saved  him  once  from  drown- 
ing." Another  witness  thinks  the  boy  could  not  swim. 
He  saw  him  some  time  before  fall  from  a  log,  and  went  to 
his  rescue;  thinks  he  would  have  drowned  if  he  had  not 
been  helped;  the  superintendent  saw  this."  A  third  wit- 
ness "thinks  it  was  generally  understood  at  the  mill  that 
Peter  could  not  swim ;  that  he  acted  as  though  he  was 
afraid  when  he  went  near  deep  water;  has  known  super- 
intendent send  him  to  the  outer  boom  for  logs."  The 
occasion  of  his  death  is  thus  stated:  "Peter  was  found  dead 
in  the  water;  was  drowned  while  he  was  at  work  at  the 
mill;  was  found  at  Finnegan's  wharf;  was  employed  at 
work  in  the  boom  by  order  of  the  superintendent  when 
drowned;  another  boy,  named  Major,  was  sent  outside  by 
him  for  a  particular  stick;  he  told  Peter  to  go  for  it,  who 
did  so;  it  was  tlien  when  he  was  drowned;  witness  did 
not  send  Peter  for  said  stick,  but  sent  him  into  the  boom; 
there  were  r.ound  and  sided  logs  in  the  boom;  the  stick 
Peter  went  out  after  was  a  very  large  sided  stick;  he 
was  drowned  on  Friday  and  found  on  Sunday;  was  not 
present    when  Major    told  Peter  to  go  for  the  log;  when 


702  SUPREME  COUBT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Opinion  of  Court. 

the  negro  was  missed.  Major  then  said  he  had  sent  Peter 
and  liad  not  heard  of  him  since.*' 

On  this  state  of  facts,  the  judge  instructed  the  jury  as 
follows:     The  hiring  of  a  slave  constitutes  a  bailment,  and 
in  such  hiring,  as  in  the  hiring  of  any  other  personal  pro- 
perty, the  person  hiring  is  bound  to  take  ordinary  care  of 
him,  and  must  answer  for  ordinary  neglect.     If,  therefore, 
you  find  from  the  evidence  that  said  negro    was    the    pro- 
perty of  plaintiff,  and  was  hired  to  defendants,  and,  While 
in  their    employment,  he  was  lost  through  the  carelessness 
and  misconduct  of  the  defendants  or  their  agent,  then  the 
plaintiff  is  entitled  to  recover.     In    all    ordinary'    transac- 
tions (not  criminal)  a  principal  is  liable  for  any  act  of  his 
agent,  when  there  is  negligence,  if  done  within   the  scope 
of  his  authority.     If,  therefore,  you  find  from  the  evidence 
that  an  order  was  given  to  the  said    slave  Peter    by    a    per- 
son in  the  employ  of  the  defendants    who    had    authority 
from  them  so  to  do,  which  no  ordinary  prudent  man  would 
have  given,  and  that  in  consequence  of  said  order  the  ne- 
gro was  lost,  then  the  plaintiff  is  entitled  to  recover;  but 
if  such  order,  in  your  opinion,    was    not    an    unusual    one 
under    the    circumstances,   and   that  there  was   not    negli- 
gence in  giving  the  order,  then  the  plaintiff  is  not  entitled 
to  recover.     If  you  find  from  the  evidence  that  the  agent 
of  the  defendants  knew  that  the  said  Peter  could  not  swim, 
and  he  knowing  this  and  acting  within    his    authority  as 
such  agent,  gave  an  order  to  said   Peter  within  his  scope 
or  authority   as  such   agent,   which   order  no   prudent   man 
with  this  knowledge  would  have  given,    then    the    knowl- 
edge of  the  fact  that  he  could  not  swim  by  the  said  agent 
is  sufficient.     It  was  the  duty  of  the  defendants    to    have 
employed  careful  and  competent  agents.^^ 

It  was  objected  to  these  that  "they    were    calculated  to 
produce  the  impression  that  Peter  was  drowned  in  obey- 


TERM  AT  JACKSON  VILLE,  1856.  703 

Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Opinion  of  Court 

ing  an  order  of  appellants,  which,  not  being  true,  the 
charge  was  error.  The  boy  Major  gave  the  order,  and  not 
the  agent  of  the  appellants."  The  instructions  are  not 
liable,  we  think,  to  the  objection.  They  are  hypothetical, 
and  leave  the  matter  to  the  jury  without  any  intimation  of 
the  opinion  of  the  court.  "If  you  fmd  from  the  evidence 
that  the  agent  gave  an  order  to  Peter,"  etc.  This  is  the 
language  of  the  instruction.  It  is  not  that  Major  gave  the 
order  to  Peter — at  least  there  is  no  evidence  to  that  effect 
before  us.  The  superintendent  of  the  mill  states  this,  but 
says,  in  another  part  of  his  examination,  "that  he  was  not 
present  when  Major  told  Peter  to  go  after  the  log.  When 
the  negro  was  missed,  Major  then  said  he  had  sent  Peter 
and  had  not  heard  of  him  since."  Striking  out  the  hear- 
say statement  of  Major,  which  is  not  testimony,  and  then 
removing  the  statement  of  this  same  witness  that  he,  the 
agent,  sent  him  into  the  boom,  it  will  be  remarked  that  the 
question  before  us  is  not  whether  such  an  order  was  abso- 
lutely given,  but  whether  there  was  sufficient  in  the  evi- 
dence to  justify  the  court  in  referring  the  question  of  its 
existence  to  the  jury,  and  we  have  no  hesitation  in  saying 
that  there  was. 

If  there  be  error  in  this  charge  and  those  instructions,  it 
consists,  in  our  opinion,  in  applying  the  term  negligence 
to  what  we  cannot  but  regard  otherwise  than  as  an  act  of 
misfeasance;  and  if  a  positive  wrong,  an  error  however  to 
the  injury  of  plaintiff  and  not  of  the  defendants,  and  of 
which  the  latter  are  not  entitled  to  complain.  The  first 
instruction  is  nearly  a  copy  of  one  given  in  the  case  of 
Forsyth  and  Simpson,  which  received  the  approbation  of 
this  court,  and  will  be  more  fully  noticed  hereafter. 

It  is  very  obvious  that  the  merits  and  strength  of  the 
case  lie  in  the  last  instruction.  It  is  the  act  of  the  agent 
of  the  defendants  in  causing  the  negro  to  go  into  the  boom, 


704  SUPREME  COURT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Opinion  of  Court, 

or  outside  of  it,  in  quest  of  a  log,  knowing  that  he  could 
not  swim,  that  creates  the  responsibility,  and  to  this  the 
attention  of  the  court  will  be  addressed. 

A  person  hiring  a  slave  is  but  the  assignee  of  the  master, 
and  by  the  act  of  hiring  acquires  for  the  time  his  rights  to 
the  labor  and  services  of  the  slave,  has  the  power  and  do- 
minion over  him  which  the  master  has,  has  the  responsi- 
bility, too,  of  a  master,  with  the  additional  obligation  that 
in  case  of  abuse  or  injury  to  the  slave  by  improper  con- 
duct on  his  part,  he  will  make  compensation  for  the  dam- 
age. 

Now,  what  is  the  extent  of  this  power  and  authority  of 
the  master?  Is  it  absolute,  unlimited,  uncontrolled?  By 
no  means.  The  slave  is  subject  to  his  master  to  the  ex- 
tent of  his  capacity  and  power,  mental  as  well  as  physical, 
and  his  duty  is  to  obey  his  orders  to  the  extent  of  his  abili- 
ty. Hence,  then,  results  a  duty  on  the  part  of  the  hirer  to 
inform  himself  of  this  capacity,  so  as  not  to  engage  him, 
the  slave,  in  a  service  or  labor  for  which  he  is  unfitted  or 
incapacitated  by  his  mental  or  physical  organization. 
Tliere  is  a  duty,  too,  on  the  part  of  the  owner  to  be  frank 
and  explicit  in  effecting  a  hire.  Cood  faith,  honesty,  the 
true  interests  of  the  master  and  the  slave  and  the  person 
hiring  require,  that  there  be  a  clear  and  full  understanding 
on  tliis  subject.  It  is  said  that  a  slave  hired  to  work  at  a 
mill  is  subject  to  any  work  to  be  performed  there.  We 
think  not.  A  hand  used  to  the  saw  may  be  in  peril  if  put 
at  the  engine  or  on  slippery  logs  in  the  water.  The  en- 
gineer, though  fearless  in  his  position,  may  be  in  immi- 
nent danger  from  the  saw  or  getting  logs  in  the  water.  A 
hand  not  skilled  should  not  be  put  at  any  of  these,  espe- 
cially if  in  addition  there  is  a  physical  infirmity  to  pre- 
vent an  execution  of  the  duty.  Take  the  case  of  a  green 
hand,  unused  to  a  steam  saw  mill.     May  he  at  once  be  put 


TERM  AT  JACKSONVILLE,  1866.  706 

Kelly  et  al.  vs.  Wallace,  Trustee,  Ac. — Opinion  of  Court 

to  the  saw  or  about  parts  of  the  machinery  most  liable  to 
produce  injury  to  inexperienced  persons,  and  when,  in  ad- 
dition, it  is  ascertained  that  from  alarm  and  fright  he  loses 
his  self-possession  and  is  incapable  of  his  own  preserva- 
tion? Such  work,  most  obviously,  is  beyond  his  reach 
and  capacity.  He  should  not  be  subjected  to  it.  The  exer- 
tion of  such  power  is  not  the  exercise  of  authority,  but  the 
abuse  of  it — an  act  of  cruelty  and  oppression  having  no 
sanction  of  law  or  morality.  A  master  could  not  rightly 
punish  for  disobedience  to  such  an  order,  and,  if  he  did  so, 
might  be  liable  to  the  criminal  law,  which  provides  "that 
no  cruel  or  unusual  punishment  shall  be  inflicted  upon  a 
slave  by  any  master,  employer  or  owner.'* — Thompson's 
Digest,  511. 

With  this  view  of  the  principle  it  remains  to  apply  it  to 
the  case  before  us.  Ability  to  render  service  on  the  water, 
for  the  most  part  is  acquired,  and  is  the  effect  of  early  prac- 
tice and  training.  It  takes  time  and  use  for  those  unac- 
quainted with  the  element  to  accommodate  themselves  to 
their  new  position.  With  some  there  is  a  natural  infir- 
mity, often  not  to  be  overcome,  that  disables  from  service 
on  or  near  it.  They  at  once  lose  their  faculties  and  self- 
possession,  and  are  scarcely  intelligent  beings.  Should 
there  have  been  a  narrow  escape  from  drowning,  it  but 
adds  to  the  embarrassment  and  difficulty. 

To  say  or  even  supose  that  a  master  would  force  such 
a  slave  into  such  a  service  is  wholly  to  misunderstand  and 
misrepresent  him.  It  is  alike  a  mistake  that  he  would  or 
could  communicate  such  authority  in  hiring  him. 
,  In  the  present  case  we  have  seen  that  Peter  was  afraid 
in  going  near  deep  water;  that  he  told  the  agent  he  could 
not  swim,  and  it  was  generally  understood  he  could  not. 
He  was  seen  to  fall  in  and  was  rescued  from  drowning  by 
the    help    of    another.     He  said  he  had  been  saved  from 


706  SUPREME  COURT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Opinion  of  Court. 

drowning  by  a  dog  prior  to  this.  More  than  this,  the  em- 
ployment itself  was  of  an  unusually  perilous  character,  re- 
quiring a  resolute  and  stout  head  and  heart  and  active 
and  expert  limbs,  and  experience  and  acquaintance  with 
the  subject. 

Under  such  a  state  of  facts,  there  can  be  no  hesitancy 
on  the  part  of  this  court  in  agreeing  with  the  court  below 
and  jury  in  regarding  the  act  of  this  agent  as  wholly  un- 
warrantable and  illegal  and  in  holding  his  principals  re- 
sponsible. 

On  the  trial,  the  superintendent  said,  "The  boy  Peter 
told  him  the  dog  saved  him  once  from  drowning,  and  the 
negro  said  he  could  not  swim.''  This  was  objected  to 
by  defendants  as  not  being  legal  testimony,  and  the  court 
below  admitting  it,  this  is  presented  as  groiind  of  error. 
It  is  very  obvious  the  only  effect  of  these  expressions  was 
to  show  that  the  superintendent  was  aware  of  this  inability 
of  this  boy.  We  think  the  point  not  at  all  material,  as 
there  is  abundant  other  testimony  in  the  case  establishing 
the  fact  of  knowledge,  so  that  the  exclusion  of  this  could 
have  had  no  effect  whatever  if  the  ruling  was  erroneous. 
The  statement  is  not  mere  hearsay  from  the  negro — it  is 
the  admission  of  the  party  himself  charged  with  the  con-, 
duct  of  this  slave  that  he  had  information  as  to  his  ability. 
It  may  have  been  imperfect,  still  it  was  knowledge,  and 
we  think  it  was  admissable.  We  shall  not,  however,  for  the 
reason  just  stated,  enter  into  any  argument  to  show  that  it 
was  entirely  unexceptionable. 

The  next  exception  is  to  the  refusal  of  the  court  below 
to  admit  the  testimony  of  George  E.  Fairbanks.  It  was 
proposed  to  ask  him  the  general  custom  among  mill-men 
in  hiring  negroes;  \fhether,  when  hired  generally,  they 
were  employed  in  any  work  about  the  mill  the  managers 
can    find    to    put    them  at.     This  is  upon  the  supposition 


A 


TERM  AT  JACKSONVILLE,  1856.  707 

Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Opinion  of  Court. 

that  the  rights  of  the  parties  in  these  contracts  are  not  un- 
derstood or  defined  ])y  law,  and  that  it  was  necessary  to 
resort  to  witnesses  to  ascertain  them.  Admitting  this  to 
be  the  case,  it  would  scarcely  comport  witli  right  or  jus- 
tice to  appeal  to  one  of  the  parties  to  a  contract,  or  to  any 
number  of  parties,  when  there  are  numerous  contracts  of  a 
like  character  to  give  the  rule  of  construction  so  as  to  fix 
and  ascertain  their  own  rights  and  responsibilites  and 
those  of  the  other  contracting  parties. 

A  custom  Or  mode  of  dealing  between  persons  engaged 
in  a  particular  pursuit  sometimes  reaches  to  the  estima- 
tion of  an  implied  bargain.  It  does  not  extend  to  others 
not  parties  to  the  custom  nor  participant  in  it.  If  the 
question  had  been  proposed  to  owners,  or  persons  hiring, 
as  to  their  consideration  and  custom  of  treating  the  sub- 
ject, there  would  be  greater  plausibility  in  it.  We  think 
there  is  no  difficulty  in  the  application  of  the  law  to  the 
case  and  in  ascertaining  the  rights  of  the  parties,  and 
therefore  think  the  evidence  was  rightly  rejected. 

From  the  view  already  taken  of  the  subject,  it  will  be 
evident  that  we  are  not  inclined  to  favor  the  motion  for  a 
new  trial. 

Whilst  such  is  our  conclusion  as  to  the  law  of  the  case, 
it  is  yet  a  part  of  our  duty  to  see  that  it  has  the  support 
and  sanction  of  other  courts,  and  especially  of  those  of  our 
sister  States  familiar  with  this  peculiar  species  of  property 
and  the  relations  incident  to  it.  Unfortunatelv,  we  have 
not  access  to  books,  and  particularly  those  bearing  most 
directly  on  the  points,  and  are  confined,  in  some  degree, 
to  digests.  Those  in  our  power  have  received  very  careful 
and  attentive  consideration.  A  case  of  this  kind  was  be- 
fore the  Supreme  Court  of  this  State  in  1853,  reported  in 
5th  vol.  Florida  Rep.,  p.  337 — Forsyth  vs.  Simpson.  In 
this  the  instruction  of  the  Circuit  Court  was  almost  iden- 


708  SUPEEMB  COURT. 


Kelly  et'al.  vs.  Wallace,  Trustee,  Ac— Opinion  of  Court. 

tical  with  those  given  here,  excepting  that  as  to  swimming, 
and  this  court  sustained  the  ruling.  The  facts^  as  stated 
in  the  opinion,  were  that  the  slave  was  ordered  to  jump 
on  board  a  steamer  from  a  flat  boat  lying  along  side.  In 
the  attempt  to  do  so,  he  struck  the  guards  of  the  steamer, 
fell  into  the  water  and  was  drowned.  The  court  say,  "the 
contract  for  hiring  constitutes  a  bailment  of  the  property, 
and,  it  being  mutually  beneficial  to  both  parties,  some- 
thing more  than  good  faith  is  required.  The  owners  of 
the  boat  were  bound  to  take  ordinary  care  of  the  slave, 
and,  failing  to  do  so  through  their  agents,  they  are  respon- 
sible for  the  consequences.  Apart  from  other  views,  con- 
siderations of  public  policy,  the  interests  of  the  master  and 
humanity  to  the  slave  require  that  he  should  be  shielded 
from  the  unrestricted  control  and  oppression  of  irresponsi- 
ble subordinates.  Public  policy  emphatically  demands 
that  the  owners  of  boats  and  railroads,  and  other  public 
conveyances,  should  employ  careful  and  capable  agents  in 
their  respective  business.'^  It  is  to  be  regretted  that  the 
facts  and  circumstances  connected  with  the  order  to  the 
slave,  and  which  would  principally  give  it  character,  are 
not  stated  in  the  opinion  nor  the  report.  It  is  only  stated 
that  the  jury  found  gross  negligence,  yet,  without  these,  it 
is  difficult  to  conclude  that  in  the  mere  giving  of  such  an 
order  there  was  gross  negligence.  The. force  of  the  decis- 
ion on  this  account  is  somewhat  diminished. 

In  the  case  of  Ives  vs.  Wilson,  decided  by  the  Court  of 
Appeals  of  South  Carolina,  which  was  for  the  loss  of  a  ne- 
gro occasioned  by  a  mortal  injury  produced  by  the  collis- 
ion of  two  steamers,  the  jury  were  instructed  that  "to 
make  the  defendant  liable  the  collision  must  have  resulted 
from  his  intention,  his  want  of  skill  or  negligence  in  navi- 
gating his  vessel."  The  court  say  the  jury  had  evidence 
upon  which  they  might  conclude  the    defendant    was    guilty 


TEEM  AT  JACKSONVILLE,  1866.  709 

Kellj  et  aL  ▼■.  Wallace,  Tnittee,  Ac. — Opinion  of  Court 

of  negligence;  if  so,  the  verdict  is  right/^ — Cheeves^  Law 
Eep.,  75. 

The  Supreme  Court  of  Tennessee  hold  language  of  this 
kind:  "The  law  exacts  from  the  hirer  of  a  slave  an  obser- 
vance of  humanity  and  that  measure  of  care  and  attention 
to  his  comfort  and  welfare  that  a  master  with  a  humane 
sense  of  his  duty  would  feel  it  incumbent  on  him  to  exer- 
cise in  the  treatment  of  his  own  slaves/' — 10  Hump.,  267. 

In  Georgia,  language  is  used  to  the  same  effect:  "He 
ought  to  use  the  thing  and  take  the  same  care  in  the  pre- 
servation of  it  which  a  good  and  prudent  father  of  a 
family  would  take  of  his  own.  Hence,  the  hirer  being  re- 
sponsible only  for  that  degree  of  diligence  which  the  gene- 
rality of  mankind  use  in  keeping  their  own  goods  of  the 
same  kind,  it  is  very  clear  he  can  be  liable  only  for  such 
injuries  as  are  shown  to  arise  from  an  omission  of  that  dili- 
gence; in  other  words,  for  ordinary  negligence.'' — 6  Geor- 
gia. 

In  Alabama,  it  is  held,  that  "the  hirer  is  liable  only  for 
gross  negligence,  which  is  defined  to  be  the  want  of  slight 
diligence  or  a  failure  in  the  commonest  degree  of  pru- 
dence, or  an  omission  to  exercise  the  diligence  which  men, 
habitually  careless  or  of  little  prudence  generally,  take  in 
their  own  concerns." — Ware  vs.  Taylor,  4  Port.,  239. 

In  North  Carolina  it  was  held  that  the  hirer  of  a  slave 
was  bound  to  use  such  diligence  and  prudence  as  a  man 
of  ordinary  prudence,  could  if  the  property  were  his  own; 
that  as  a  slave  was  a  being,  so  much  care  was  not  neces- 
sary as  would  be  required  of  the  bailee  of  a  brute  or  in- 
animate thing;  that,  as  F  had  hired  the  slave  for  this  very 
purpose,  he  would  be  presumed  to  know  all  the  dangers 
and  risks,  and  therefore  plaintiff  could  not  recover. — 11  Ire., 
640 ;  U.  S.  Dig.,  1851,  p.  59. 

This  was  the  case  of  a  boy  12  years  old,  hired  to  drive  a 
47 


710  SUPREME  COURT. 


Kelly  et  al.  vs.  Wallace,  Trustee,  &c. — Opinion  of  Court. 

horse  near  the  shaft  of  a  gold  mine.  The  boy  whilst  work- 
ing at  night,  being  without  an  overcoat,  had  gone  to  the 
fire  to  warm  himself,  and  on  his  being  called  to  start  the 
horse,  being  drowsy,  fell  into  the  mine  and  was  killed. 

In  the  case  of  McDaniel  vs.  Ewing,  decided  by  the  Court 
of  Appeals  of  S.  Carolina,  a  negro  man.  Jack,  was  hired 
as  one  of  the  crew  of  a  steamboat  and  was  lost,  being 
knocked  overboard,  he  and  the  captain  being  excited  by 
spirits  at  the  time.  The  court  decided  that  the  hirer  was 
liable,  inasmuch  as  Jack  was  detained  after  his  time  had 
expired.  In  another  aspect  of  the  case,  if  Jack  was  not 
discharged,  that  "the  company  could  not  be  liable  for  the 
loss  of  Jack,  unless  it  resulted  from  some  wilful  miscon- 
duct of  the  captain,  or  such  as  should  be  regarded  in  the 
light  of  carelessness  or  negligence."  They  say  further,  the 
captain  had  a  right  to  order  the  boat  to  be  turned  back, 
and  Jack  was  bound  to  obey  the  order,  and  whether  the 
manoeuvre  was  conducted  with  skill  or  not  on  the  part  of 
the  captain,  could  make  no  difference,  as  the  negro  was 
bound  to  run  all  the  liazards  of  employment  from  orders 
given  in  good  faith  and  by  an  officer  competent  at  the 
time  the  company  employed  him.    2  Rich.,  4t57. 

These  two  latter  decisions  by  no  means  impugn  the 
force  of  the  views  we  have  taken.  They  decide,  that  when 
a  boy  is  hired  for  a  special  purpose — for  instance,  as  one 
of  a  boat's  crew — he  undertakes  the  hazards  of  the  em- 
ployment; so  does  an  engineer  of  a  steamboat;  or  a  hand 
at  the  saw.  If  either  of  them,  without  any  order  or  mis- 
conduct of  his  superior,  gets  entangled  in  the  macliinery 
so  as  to  lose  his  life,  the  loss  may  not  fall  on  the  person 
hiring.  The  other  cases  most  evidently  show  the  propriety 
of  the  present  find  and  the  appropriate  ruling  of  the 
court  below.  We  see  no  reison,  on  a  view  of  the  whole 
case,  to  disturb  the  judgment  of  the  court  below,  and  it  is 
therefore  affirmed  with  costs. 


TERM  AT  JACKSONVILLE,  1856.  711 


Ilarrlaon  and   Wife  vs.   Roberts. — Opinion  of  Court. 


Ephraim  L.  Harbison  and  wife.  Appellants,  vs.   Hiram 

Roberts,  Appellee. 

1.  The  lien  of  a  judgment  at  law  attaches  to  and  binds  the  real  estate  of  the 
defendant  therein,  acquired  subsequent  to  the  rendition  thereof. 

2.  There  is  no  rule  of  law  or  principle  of  equity  which  prevents  a  first  mort- 
gagee from  purchaning  the  mortgaged  property  when  sold  at  sheriff's  sale  un- 
der a  judgment  prior  to  the  mortgage  ;and,in  such  case,he  takes  absolute  title. 

3.  When  a  surplus  remains  after  the  satisfaction  of  a  prior  execution  under 
which  property  mortgaged  has  been  sold,  equity  will  regard  the  fund  as  sub- 
stituted for  the  land,  and  pursue  and  distribute  the  same  amongst  subsequent 
mortgagees  according  to  their  priorities. 

4.  The  court  will  not  consider  the  validity  of  a  bargain  and  sale  of  real  estate 
between  parties  who  make  no  objection  to  the  transfer,  at  the  instance  of  an- 
other, whose  rights  are  not  affected  thereby. 

Appeal  from  Duval  Circuit  Court. 

For  the  facts  of  the  case,  reference  is  made  to  the  opin- 
ion of  the  court. 

McQ.  Mcintosh  and  0.  W.  Call,  for  Appellants. 

P.  Fraser,  for  Appellee. 

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

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of 
Duval  County,  sitting  in  chancery. 

On  the  22d  of  September,  1851,  Samuel  Spencer,  being 
the  owner  of  lot  No.  4,  in  square  No.  2,  in  the  town  of 
Jacksonville,  mortgaged  the  same  to  Joseph  S.  Baker,  to 
secure  the  sum  of  1,100  dollars,  payable  on  the  Ist  day  of 
July,  1852. 

Thereafter,  on  the  22d  of  November,  1851,  he  mort- 
gaged the  same  property  to  Hiram  Roberts,  to  secure  the 
payment  of  the  sum  of  1,410  dollars  and  forty-three  cents, 
payable  on  the  first  day  of  January,  1853. 


712  SUPBEME  COUKT. 


Harrison  and  Wife  ts.  Roberts. — Opinion  of  Court. 

At  the  time  of  and  previous  to  the  execution  of  these 
mortgages  Spencer  was  otherwise  indebted,  and  particu- 
larly there  was  a  judgment  in  force  against  him,  recorded 
in  Duval  Circuit  Court  on  the  3rd  of  June,  1851,  in  favor 
of  Thomas  W.  Jones,  for  the  sum  of  92  dollars  and  twenty- 
one  cents,  together  with  interest  and  costs.  On  the  27th 
of  November,  a  few  days  after  the  execution  of  the  second 
of  the  mortgages  aforesaid,  Jones  sued  out  an  execution 
upon  his  judgment,  which  he  caused  to  be  levied  upon  the 
house  and  lot  of  Spencer,  which  was  the  subject  of  the 
aforesaid  mortgages,  under  and  by  virtue  of  which  levy  the 
property  was  sold  by  the  sheriff  of  Duval  county  on  the 
5th  of  January,  1852,  Joseph  S.  Baker,  the  first  mortagee, 
becoming  the  purchaser  for  the  sum  of  1,750  dollars.  Jo- 
seph S.  Baker,  on  the  17th  of  January,  1862,  sold  his  interest 
in  the  property  to  Mrs.  Julia  L.  Harrison,  who,  together 
with  her  husband,  the  said  Ephraim  L.  Harrison,  were  ad- 
mitted into  possession  and  have  ever  since  occupied  the 
premises  as  their  own,  adding,  in  the  meantime,  mate- 
rially to  their  value  by  substantial  and  permanent  im- 
provements thereupon. 

On  the  17th  of  January,  1853,  Hiram  Roberts  filed  his 
bill  for  a  foreclosure  of  liis  mortgage,  and,  on  the  7th  of 
July  thereafter,  Harrison  and  wife  filed  their  cross-bill  to 
adjust  the  equities  between  all  the  parties. 

Such  is  the  state  of  facts,  in  the  opinion  of  the  court, 
presented  by  the  record,  and  for  the  better  understanding 
of  the  matter,  we  choose  to  regard  them  in  this  aspect  for 
the  present,  leaving  for  further  consideration  the  details  of 
the  subject  which  are  relied  upon  as  varying  in  some  de- 
gree this  view  of  the  case. 

It  is  urged  that  the  judgment  of  Jones  was  not  a  lien 
upon  any  other  real  estate  of  Spencer  than  that  of  which 
he  was  seized  and  possessed  at  the  date  of  the  rendition  of 


TEEM  AT  JACKSONVILLE,  1856.  713 


Harrison  and  Wife  ts.  Boberts.— Opinion  of  Court. 

■  "^-^ 

the  judgment,  and  as  this  property  was  subsequently  ac- 
quired by  him,  there  was  no  judgment  lien  upon  it,  and 
consequently  the  sheriff's  sale  was  void  and  the  mort- 
gages took  preference  agreeable  to  their  priorities.  This 
can  scarcely  be  regarded  as  an  open  question  in  this  State, 
having  received,  if  not  a  direct  adjudication  upon  the 
point,  at  the  least,  such  a  manifest  indication  of  the  opin- 
ion and  views  of  this  court  as  to  remove  all  prior  doubts 
on  the  subject.  When  a  statute  as  we  think  this  does, 
(Thompson's  Digest,  sect.  4.,)  expressly  and  clearly  de- 
clares the  design  of  the  Legislature,  it  is  not  allowable  by 
an  extremely  refined  and  technical  construction  to  do 
away  with  its  force  and  impair  its  efficiency.  When  it  is 
enacted  that  judments  '^shall  create  a  lien  and  be  bind- 
ing upon  the  real  estate  of  the  defendant,"  it  is  not  for  this 
court  to  say  that  any  portion  of  that  estate  shall  be  exempt 
from  such  lien.  This  would  be  to  create  a  distinction  and 
make  a  restriction  not  contemplated  by  the  legislative  au- 
thority. Such  a  distinction  is  in  itself  unnatural  and  un- 
reasonable. Why  should  property,  acquired  perhaps  by 
the  very  means  of  a  loan,  be  relieved  from  liability  to  a 
judgment  rendered  for  the  identical  fund  with  which  it 
was  purchased?  Such  a  rule  would  confound  all  our  ideas 
of  right  and  justice.  This  question  was  very  fully  con- 
sidered in  the  court  below,  and  the  authorities  cited  in  the 
opinion  of  the  Circuit  Court,  in  our  opinion,  conclude  the 
question  of  the  lien  of  a  judgment  upon  real  estate  ac- 
quired by  defendant  subsequent  to  its  rendition.  The 
lien  of  the  judgment  then  prevailing  on  this  property,  a 
sale  of  the  same  by  execution  founded  upon  the  judgment, 
would  carry  the  title  free  from  the  incumbrance  of  the 
mortgages.  If  indeed  the  mortgages  had  been  executed 
and  recorded  in  due  legal  form  anterior  to  the  date  of  the 
judgment,  a  sale  under  it,  as  provided  by  our  statute,  could 


714  SUPREME  COURT. 


Harrison   and   Wife  vs.    Roberts. — Opinion    of   Court. 

only  have  affected  the  equity  of  redemption    and    left   the 
property  itself  suhject  to  the  mortgages  and  their  equities. 

But,  it  is  further  argued,  that  Baker,  being  the  first 
mortgagee,  was  thereby  estopped  from  purchasing,  as  an- 
other might  have  done,  at  the  sheriff's  sale.  Is  this  so? 
Was  he  prevented  by  any  law  or  any  rule  or  principle  of 
equity  from  making  such  purchase?  Does  his  purchase 
connect  itself  with  his  mortgage  interest,  so  that  the  sum 
paid  by  him  on  the  sale  under  execution  creates  but  an 
addition  to  his  mortgage  debt,  and  so  to  be  held  by  the 
same  security?  Or,  does  he  obtain  by  such  purchase  the 
legal  estate  in  the  property  absolutely?  A  mortagee  may 
not  contract  with  the  mortgagor  "at  the  time  of  the  loan 
for  an  absolute  purchase  of  the  lands  for  a  specified  sum, 
in  case  of  default  made  in  payment  of  the  mortgage  money 
at  the  appointed  time,  justly  considering  it  would  throw 
open  a  wide  door  to  oppression  and  enable  the  creditor  to 
drive  an  inequitable  and  hard  bargain  with  his  debtor, 
who  is  rarely  prepared  to  discharge  his  debt  at  the  speci- 
fied time.''    Coot  on  Mortgages,  p.  14. 

Otherwise,  there  is  no  objection  to  his  purchase  of  the 
equity  of  redemption;  and,  where  the  transaction  was  fair, 
though  the  full  value  was  not  given,  the  agreement  has 
been  enforced.     3  Simons,  42:  11  Clark  and  Finnellv,  648. 

If,  then,  the  mortgagee  may  purchase  the  equity  of  re- 
demption from  the  mortgagor,  we  see  no   reason   why  he 
may  not  purchase  it  and  the  entire  property,  when  sold  at 
sheriff's  sale,  at  the  instance    of    a    third  party.      In  such 
case,  there  is  no  room  for  oppression    or    opportunity  for 
taking  advantage  of  the  necessities  of  the  mortgagor.    To 
deny  this  right  to  purchase  on  the  part  of  Baker  would  be 
to  place  it  out  of  his  power  to  secure  his  mortgage  debt  in 
the  event  another  had  become    the    purchaser   at  sheriffs     ^ 
sale,  and  thereby  secured  the  title    in    fee.     Indeed,  con-    J 


TERM  AT  JACKSONVILLE,  1856.  715 


Harrison  and   Wife  vs.   Roberts. — Opinion  of  Court. 

sidering  the  insolvency  of  Spencer,  the  mortgagor,  the  pur- 
chase of  Baker  and  the  suspension  of  the  surplus  pur- 
chase money  above  the  amount  of  the  execution,  so  far 
from  working  or  operating  as  an  injury  to  Roberts,  has 
been  the  means  of  securing  a  considerable  portion  of  his 
mortgage  debt,  which  otherwise  might  have  been  lost; 
and  he  may  now  obtain  all  the  relief  which  equity  would 
have  afforded  him  had  he  filed  his  bill  in  the  first  instance 
for  a  foreclosure  of  his  mortgage,  offering,  as  he  was  bound 
to  do,  to  redeem  all  prior  incumbrances.  The  mortgagee. 
Baker,  then,  having  the  legal  right  to  purchase,  by  so  do- 
ing, ce.ased  to  hold  the  property  in  pledge  under  and  by 
virtue  of  his  mortgage  and  became  absolute  owner  of  the 
same  in  fee. 

It  is  further  argued  that  Baker  did  not  complete  the 
purchase  of  the  property  under  the  execution,  and  is  not, 
therefore,  entitled  to  be  regarded  as  such  owner.  So, 
therefore,  it  becomes  necessary  to  examine  the  facts  con- 
nected with  this  sale.  The  sum  paid  by  Baker  to  the 
sheriff  in  satisfaction  of  the  execution  at  the  time  of  the 
sale,  was  about  140  dollars,  while  his  bid  for  the  property 
was  1,750  dollars.  The  premises  being  indivisible,  a  sale 
of  a  smaller  portion  of  them  to  satisfy  the  execution  could 
not  be  had. 

Such  is  the  fair  inference  from  the  facts,  as  there  has 
been  no  complaint  of  irregularity  in  the  sale,  and  none 
have  moved  to  set  it  aside  or  insisted  that  too  much  was 
sold.  The  sheriff  receives  on  Baker's  bid  a  ?um  sufficient 
to  pay  tlie  execution  in  favor  of  Jones  and  returns  tlie 
same  satisfied,  together  with  the  fact  of  his  sale.  But 
there  is  a  balance  of  some  1,410  dollar?,  whic-i  Baker  in- 
sists on  discharging  in  part  by  his  mortgage  of  1,100  dol- 
lars and  interest,  and  the  remainder  in  cash.  The  sheriff 
refused  to  accede  to  this  arrangement,  and  so  the  matter 


716  SUPBEME  COTJBT. 


Harrison  and  Wife  ts.  Roberts. — Opinion  of  Court. 

has  stood  until  the  filing  of  these  bills  and  the  proceedings 
had  thereupon.  It  is  very  obvious  that  Baker  was  equi- 
tably entitled  to  the  mode  of  settlement  he  proposed  with 
the  sheriff,  and  if  at  that  time  a  court  of  chancery  had 
been  applied  to,  it  would  have  allowed  his  claim  and 
compelled  the  receipt  of  the  mortgage  demand.  Upon  the 
clearest  principles  of  equity  jurisprudence,  if  another  per- 
son had  become  the  purchaser  at  the  sheriff's  sale  and 
actually  paid  the  purchase  money  into  the  hands  of  the 
sheriff,  the  residue,  after  satisfaction  of  the  execution, 
would  still  have  been  equitably  bound  by  the  mortgages, 
the  money  being  but  a  substitute  for  the  land.  Spencer 
being  insolvent,  equity  would  unquestionably  have  en- 
forced this  claim  against  him.  The  rule  is  that  a  com- 
plainant must  do  equity  as  a  condition  of  claiming  equi^. 
After  adjusting  the  mortgage  of  Baker,  the  remainder  of 
the  fund  would,  upon  application  of  Eoberts,  have  been 
paid  over  upon  his  second  mortgage;  and  this,  we  think, 
is  the  whole  extent  of  the  interest  which  he  can  rightfully 
claim,  either  in  the  lot  or  the  proceeds  of  its  sale.  If  he 
had  filed  his  bill  against  the  prior  incumbrances,  Jones 
with  his  judgment  and  Baker  with  his  mortgage,  and  a 
sale  had  been  ordered,  he  could  have  obtained  no  more 
than  this.  But  this  has  already  been  effected  by  the  sale 
under  Jones'  execution;  that  execution  is  satisfied;  Baker 
tenders  his  prior  mortgage  for  satisfaction,  and  the  remain- 
der of  the  funds  arising  from  the  sale,  to  Roberts. 

It  is  not  pretended  that  there  was  any  unfairness  in  the 
sale,  or  that  the  property  was  sold  for  less  than  its  full 
value;  nor  is  it  doubted  that  Jones  had  a  right  to  sell  it 
under  his  execution.  Why  then  another  sale,  with  no 
other  purpose,  as  far  as  we  can  discover,  than  to  obtain  a 
better  price  by  reason  of  the  improvements  made  by  Mrs. 
Harrison  since  her  occupancy  under    the    impression  that 


TERM  AT  JACKSONVILLE,  1856.  717 

Harrison  and  WMe  vf.   Roberts. — Opinion  of  Court. 

Bhe  was  the  owner,  and  thereby  increase  the  dividend  of 
the  second  mortgage.  We  see  neither  equity  nor  good  con- 
science in  this,  and  upon  the  principle  that  equity  will 
consider  that  as  done  which  should  have  been  done,  are 
fully  satisfied  that  neither  in  law  nor  in  equity  should  the 
position  of  the  parties  be  disturbed. 

Objection  was  made  upon  the  argument  to  the  rights  of 
Mrs.  Harrison  as  against  Baker;  but  we  see  no  diflB- 
culty  in  that  respect.  Baker  concurs  with  her  in  her  ap- 
plication to  the  court  for  the  title  of  the  property  in  ques- 
tion, and  it  is  not  for  Roberts  to  interfere  by  taking  excep- 
tions proper  only  for  the  parties  in  interest  themselves. 
When  Baker  claims  the  benefit  of  the  statute  of  frauds  to 
protect  him  against  his  sale  to  Mrs.  Harrison,  or  raises 
any  other  objection  to  the  consummation  of  his  bargain 
with  her,  it  will  be  time  enough  to  consider  that  question. 
Baker  himself  makes  no  such  objection,  and  his  answer  is 
in  full  support  of  Mrs.  Harrison's  claim.  She  has  been  in 
possession^  from  the  date  of  her  purchase,  has  made  con- 
siderable repairs  and  improvements,  paid  a  large  portion 
of  the  purchase  money  and  is  willing  and  offers  to  pay  the 
residue,  and  there  is  no  reason,  that  we  can  see,  to  doubt 
the  integrity  and  fairness  of  Baker  in  the  transaction. 

We  are,  then,  of  opinion  that  by  the  purchase  under 
Jones'  execution  Baker  became  owner  of  the  lot  and  is  en- 
titled to  a  conveyance  of  the  same  upon  the  payment 
which  he  made  of  the  amount  of  the  execution,  the  satis- 
faction of  his  mortgage  since  assigned  to  Mrs.  Harrison 
and  the  payment  of  the  residue  of  his  bid. 

Let  the  decree  of  the  Circuit  Court  be  reformed  in  ac- 
cordance with  the  principles  laid  down  herein,  and  the 
cause  remanded  for  further  proceedings  consistent  there- 
with. 

The  appellee  Roberts  to  pay  the  costs  in  this  court. 


718  SUPREME  COURT. 

Summerlln  vs.  Tyler  and  Wife. — Statement  of  Case. 

Jacob  Summeblin,  Appellant,  vs.  Simeon  S.   Tyleb  and 

WIFE,  Appellees. 

1.  The  provision  of  the  statute  which  prescribe  the  time  which  appeals 
from  the  Justices'  Court  to  the  Circuit  Court  may  be  taken,  has  reference  to 
the  adjournment  of  the  court,  and  not  to  the  date  of  the  rendition  of  the  Judg- 
ment. 

2.  Where  tbo  record  furnishes  no  evidence  at  what  time  the  court  adjourned, 
the  presumption  of  law  is  that  the  Justice,  in  approving  the  appeal  bond,  did 
his  duty,  and  that  the  same  was  perfected  within  the  time  prescrit>ed  by  the 
statute.  In  the  absence  of  proof  to  the  contrary,  the  legal  presumption  al- 
ways is  that   the  officer  has  acted  strictly  within  the  line  of  his  duty. 

3.  It  is  not  a  compliance  with  the  requisition  of  the  statute  to  merely  pray  the 
appeal  within  the  three  days.  It  must  be  perfected  within  that  time  by  the 
actual  payment  of  the  costs  and  the  tender  of  the  appeal  bond. 

Appeal  from  Duval  Circuit  Court. 

The  appellee  instituted  a  suit  against  the  appellant  in 
a  Justices'  Court  of  Duval  county.  On  the  15th  day  of 
February,  1855,  judgment  was  rendered  against  the  appel- 
lant, and  an  appeal  being  taken  to  the  Circuit  Court,  he 
filed  his  appeal  bond  as  required  by  law  on  the  20th  day 
of  the  same  montli.  There  is  nothing  in  the  record  to 
show  vvlien  the  Justices'  Court,  in  which  the  judgment 
was  rendered,  adjourned.  At  the  spring  term,  1855,  of  the 
Circuit  Court,  on  motion  of  the  appellees,  the  appeal  was 
dismissed  on  the  ground  that  "more  than  three  days  had 
elapsed  from  the  trial  of  the  case  and  the  signing  and  ap- 
proval of  the  appeal  bond." 

From  this  ruling  an  appeal  was  taken  to  the  Supreme 
Court. 

F.  J.  Wheaton,  for  Appellant. 

P,  Eraser,  for  Appellees. 


^ 


TERM  AT  JACKSONVILLE,  1856.  719 


Kummerlln  vh.  Tyler  and  Wife. — Opinion  of  Court. 


DV  PONT,  J.,  delivered  the  opinion  of  the  court. 

Tlie  (juestion  pre.^^nted  hy  the  record  in  this  case  for  our 
adjudication  arises  out  of  the  provision  of  the  statute  im- 
posing a  limitation  of  time  within  which  a  party  in  a 
Justices'  Court  may  take  an  appeal  to  the  Circuit  Court, 
viz:  whether  within  three  days  after  the  rendition  of 
judgment,  or  within  that  time  after  the  adjournment  of 
the  court?  The  statute  may  be  found  in  Thompson's  Di- 
gest, at  page  474,  and  is  in  the  following  words,  viz:  "If 
either  party  shall  be  disssatisfied  with  the  judgment  of  the 
Justice  of  the  Peace,  in  any  cause  tried  before  him  where 
the  amount  in  controversy  shall  exceed  the  e<um  of  ten  dol- 
lars, such  party  may,  within  three  days  after  the  adjourn- 
ment of  the  court  at  which  the  said  judgment  was  rendered^ 
demand  an  appeal  to  the  Circuit  Court  of  the  county;  and 
it  shall  be  the  duty  of  the  said  justice  to  grant  said  appeal 
upon  the  applicant's  paying  the  costs  and  giving  bond  and 
security  for  the  eventual  costs  and  condemnation  money/* 
&c.,  &c. 

A  careful  reading  of  the  statute  is  alone  necessary  \o 
solve  the  question  raised  in  the  assignment  of  errors.  It 
is  very  manifest  that  the  appeal  must  l)e  taken  within 
three  days  after  the  adjournment  of  the  court,  and  not 
after  the  date  of  the  rendition  of  the  judgment. 

In  this  case,  the  record  furnishes  the  fact  that  the  judg- 
ment was  rendered  on  the  15th  day  of  Febniary,  A.  D. 
1855,  and  that  the  appeal  bond  was  given  on  the  20th  day 
of  the  same  month,  or  five  days  after  the  date  of  the  judg- 
ment. But  it  nowhere  informs  us  at  what  date  the  court 
adjourned ;  and,  in  the  absence  of  proof  on  that  point,  the 
legal  presumption  is  that  the  justice  did  his  duty  in  ap- 
proving the  appeal  bond,  and  that  tlie  appeal  was  per- 
fected   within    three    days   after   the    adjournment   of   the 


720  SUPBEME  COUBT. 

Summerlln  ¥•.  Tyler  and  Wife. — Opinion  of  Court 

court.  In  the  absence  of  proof  to  the  contrary,  the  legal 
presumption  always  is,  that  the  officer  has  acted  strictly 
within  the  line  of  his  duty. 

To  meet  a  supposed  difficulty  in  the  case,  the  counsel 
for  the  appellant  argued,  that  the  notification  of  an  inteip- 
tion  to  take  the  appeal,  made  within  the  three  days,  is  a 
sufficient  compliance  with  the  requisition  of  the  statute, 
and  that  the  costs  might  be  paid  and  the  bond  given  at 
any  time  thereafter.  We  do  not  coincide  in  this  interpre- 
tation of  the  statute.  Our  opinion  is,  that  the  appeal  must 
be  perfected  within  the  three  days  by  the  payment  of  the 
costs  and  the  actual  tender  of  the  bond. 

Let  the  judgment  of  the  Circuit  Court  be  reversed,  with 
directions  to  reinstate  the  cause  and  to  proceed  therein  ac- 
cording to  law. 


Decisions 


WTHE 


Supreme  Court  of  Florida, 


AT 


MARCH  TERM,  1856, 
Held  at  Tampa. 


B.  J.  Haoler,  Appellant,  vs.  John  Mehcer,  Appellee. 

Where  a  clerk  has  failed  to  enter  judgment  on  an  order  of  court  to  that  effect 
at  one  term,  it  is  proper  to  have  it  done  thereafter  at  the  next  term. 

Appeal  from  Hillsborough  Circuit  Court. 
The  opinion  of  the  court  contains  a  full  statement  of  the 
facts  presented  by  the  record. 

James  Oettis,  for  Appellant. 

J.  K.  Olover,  for  Appellee. 

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

John  Mercer  instituted  his  action  to  recover  of  the  de- 
fendant Hagler  the  sum  due  on  promissory  note  for  $350. 
The  defendant  filed  a  plea,  which  having  been  withdrawn, 
judgment  was  given  by  nil  Didt,  and  a  writ  of  enquiiy 
was   awarded   to   the   derk  to  aBsera  the  damages. 


722  SUPREME  COURT. 


Hagler  vs.   Mercer. — Opinion  of  Court, 

was  at  April  term,  1854.  At  that  term  the  clerk  died 
during  the  session  of  the  court,  having,  however,  entered 
a  judgment  formally,  omitting  and  leaving  a  blank  for  the 
damages  and  amount  as  well  as  that  of  the  costs,  which  it 
is  admitted  was  not  perfected  on  account  of  his  death.  At 
the  next  term,  on  application  of  the  court,  a  judgment  was 
entered,  on  motion,  to  supply  this  deficiency,  inserting  the 
amount  due  after  an  assessment  by  the  clerk  and  complet- 
ing the  judgment  as  originally  designed  to  be  entered. 

We  have  no  hesitancy  in  saying  that  the  court  was  right 
in  granting  the  order  asked  for.  It  was  but  to  complete 
that  which  had  been  left  undone  at  the  previous  term 
through  a  dispensation  of  Providence,  and  not  tlirough 
the  fault  or  laches  of  the  party.  The  order  was  to  the 
clerk  to  assess  the  damages  and  enter  judgment.  He 
omitted  to  assess  the  damages,  and  without  this  could  not 
enter  the  judgment.  The  order,  then,  was  unexecuted, 
and  remained  as  a  duty  to  be  performed,  without  any  fur- 
ther direction  of  the  court,  by  his  successor. 

Nor  was  it  necessary  to  give  notive  by  scire  facias  to 
defendant.  He  had  already  admitted  the  debt  in  the  de- 
claration, the  amount  of  the  note,  to  be  due.  The  addi- 
tion of  the  interest  to  the  principal — matter  of  calculation 

merely  and  purely  ministerial   in  its  character ^was  all 

that  was  required  to  ascertain  the  amount  for  which  judg- 
ment should  be  entered.  This  calculation  is  not  made  on 
motion  of  the  party;  it  is  usually  by  the  plaintiff's  attor- 
ney for  the  clerk,  or  by  himself  without  aid. 

We  have  spoken  of  the  judgment  in  this  case  as  by  nil 
dicit,  and  this  is  its  proper  appellation,  although  the  term 
default  is  used  in  the  order.  The  defendant  had  with- 
drawn his  plea,  and  -said  nothing  further — ^hence  the  judg- 
ment was  against  him.  The  substance  is  to  be  regarded, 
and  not  the  form,  in  considering  questions  of  this  nature. 


TERM  AT  TAMPA,  1856.  723 

Mercer  v«.  Booby. — Opinion  of  Court. 

There  are  two  judgments  in  the  record;  one  entering  the 
judgment  as  of  the  date  of  the  8th  of  November,  1854,  to 
which  our  remarks  are  addressed,  and  which  is  the  judg- 
ment directed  to  be  affirmed;  tlie  other  is  an  entry  of  judg- 
ment nunc  protunc  which  it  will  be  the  duty  of  the  judge 
below  to  order  to  be  vacated. 

The  judgment  will  be  affirmed  with  costs. 


John  Mercer,  Appellant,  vs.   Herbert   H.   Booby^  Ap- 
pellee. 

The  appearance  by  attorney  of  a  party  summoned  as  a  garnishee,  cures  anyd^ 
feet  in  the  service  of  the  writ  of  garnishment. 

Appeal  from  Hillsborough  Circuit  Court.  For  the  facts 
of  the  case,  reference  is  made  to  the  opinion  of  the  court. 

Jos,  B,  Lancaster,  for  Appellant. 

J.  T.  Magbee,  for  Appellee. 

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

Tlie  appellant  John  Mercer  was  summoned  by  a  writ  of 
garnishment,  to  answer  and  set  forth  what  goods  and  chat- 
tels, rights  and  credits,  money  or  effects  were  in  his  posses- 
sion or  control,  belonging  to  Philip  S.  Lever,  the  plain- 
tiff in  execution.  The  indorsement  on  the  writ  is  as  fol- 
lows: "Served— ,7uly  25th,  1851— E.  T.  Kendrick,  Sher- 
iff." The  record  shows  that  at  the  fall  term,  1854,  the  par- 
ties appeared  by  their  attorneys  and  that  a  judgment  was 
entered  against  the  garnishee  for  the  want  of  a  plea  or 
answer. 

The  error  assigned  is  that  the  endorsement  on  the  writ 


724  SUPEEME  COUBT. 

Campbell  vs.  Cbaffee  et  al. — Statement  of  Case. 

does  not  show  how  the  service  was  perfected,  whether  by 
delivery  of  a  copy  or  otherwise. 

The  statute  (vide  Thompson's  Digest,,  372,)  provides 
that  the  service  of  the  writ  of  garnishment  shall  be 
the  same  as  is  provided  in  the  case  of  a  summons  ad  res- 
pondendum, and  it  has  been  heretofore  decided  by  this 
court  that  the  appearance  of  a  defendant  in  a  suit  cures 
any  defect  in  the  service  of  the  writ.  (D.  B.  Wood  &  Co. 
V.  Bk.  of  the  State  of  Geo.,  1  Fla.  Eeps.,  378.)  We  can 
perceive  no  good  reason  why  the  same  rule  should  not  be 
applicable  to  the  service  of  writs  of  garnishment. 

Therefore  let  the  judgment  of  the  Circuit  Court  be 
affirmed. 


William  L.  Campbell,  Appellant,  vs.  Chaffee,  St.  Ab- 

NAUD  AND  Croft,  Appellees. 

1.  From  the  terms  of  the  statute  proriding  for  the  commencement  of  snlts  tn 
the  court  of  common  law,  it  is  clearly  deducible  that  the  debt  or  damas«i 
sued  for,  as  set  forth  in  the  prspcipe,  ought  to  be  inserted  in  the  summoni 
ad  respondendum  ;  but  the  omission  by  the  clerk  to  do  so  does  not  render  the 
summons  void. 

2.  Where  an  amendment  in  the  original  process  is  allowable,  the  Supreme 
Court,  upon  error  brought,  will  give  to  the  party  entitled  thereto  the  same 
benefit  of  the  amendment  as  though  it  had  been  actually  made. 

8.  A  defect  or  irregularity  which  is  apparent  upon  the  face  of  the  original  writ 
or  summons,  (If  the  same  is  not  carried  into  the  declaration)  is  not  the  sub- 
ject of  plea  in  abatement.  It  can  be  taken  advantage  of  only  by  motion  to 
quash.  Only  matters  extrinsic  or  dehors  the  writ  or  summons  can  be  so 
pleaded. 

Appeal  from  Hillsborough  Circuit  Court. 

The  opinion  of  the  court  contains  a  full  statement  of  the 
facts  of  the  case. 


James  Oettis,  for  Appellant. 


TERM  AT  TAMPA,  1856.  725 

Campbell  vs.   Chaffee  et  al. — Opinion  of  Court 

J.  T.  Magbee,  for  Appellee. 
DuPONT,  J.,  delivered  the  opinion  of  the  court. 

This  was  an  action  of  assumpsit,  brought  by  the  appel- 
lees to  recover  from  the  appellant  the  amount  due  upon  a 
promissory  note.  The  summons  ad  respondendum  omit- 
ted to  state  the  damages,  but  was  in  other  respects  in  the 
usual  form.  At  the  appearance  term  the  defendant  filed 
a  plea  in  abatement  in  the  following  words,  to-wit: 

"The  defendant,  by  James  Gettis,  prays  judgment  of 
the  said  writ  and  declaration,  because  he  says  that  there 
is  no  sum  of  money  whatever  set  forth  or  spoken  of  in 
said  writ;  and  this  the  said  defendant  is  ready  to  verify. 
Whereupon  he  prays  judgment  of  the  said  writ  and  decla- 
ration, and  that  the  same  may  be  quashed,'^  &c. 

To  this  plea  there  was  a  demurrer  filed  which  was  sus- 
tained by  the  court,  and  the  plea  adjudged  to  be  bad.  At 
the  next  succeeding  term  a  judgment  for  the  damages  was 
entered  for  the  plaintiffs;  whereupon  the  defendant  prayed 
an  appeal  to  this  court,  and  now  assigns  for  error  the  over- 
ruling of  his  said  plea  in  abatement. 

Under  this  assignment  of  error  two  questions  are  pre- 
sented for  our  consideration:  First,  whether  the  omission 
to  state  the  damages  in  the  summons  is  such  a  defect  as 
will  render  the  summons  entirely  void?  and,  secondly,  if 
it  were,  whether  it  could  be  taken  advantage  of  by  plea  in 
abatement  ? 

The  statute  regulating  the  commencement  of  suits  pro- 
vides for  the  filing  of  a  praecipe  or  memorandum  in  the 
clerk^s  office,  previous  to  the  commencement  of  the  suit,  in 
which  is  to  be  set  forth  a  statement  of  "the  names  of  the 
parties,  the  nature  of  the  action  and  the  amount  of  the 
debt,  or  damages"  sued  for.  It  further  provides,  "that  it 
shall  be  the  duty  of  the  clerk  upon  the  receipt  of  such 
48 


726  SUPREME  COURT. 


Campbell  vs.   Chaffee  et  al. — Opinion  of  Court. 

praecipe  or  memorandum,  to  make  out  therefrom  a  writ  of 
capias  or  summons  ad  respondendum,  which  shall  be 
called  the  original  and  which  shall  be  served  by  the 
sheriff/'  &c. — Vide  Thompson's  Digest,  325. 

From  the  fact  that  it  is  required  that  the  praecipe  shall 
state  the  debt  or  damages  sued  for  and  that  the  summons 
shall  be  made  out  therefrom,  it  is  but  a  natural  inference 
that  the  debt  or  damages  should  also  appear  in  the  latter. 
This  inference  is  too  obvious  to  need  any  elaboration. 
But  whilst  we  adopt  this  conclusion  and  would  enforce 
upon  the  clerks  of  the  Circuit  Courts  the  propriety  of  a 
strict  attention  to  this  direction  of  the  statute,  we  cannot 
admit  that  the  omission  to  insert  the  debt  or  damages  will 
render  the  summons  void.  We  are  rather  inclined,  where 
the  debt  or  damages  are  stated  in  the  praecipe,  to  look 
upon  such  omission  as  a  misprison  of  the  clerk,  and  to  ac- 
cord to  the  plaintiff  the  benefit  of  an  amendment.  As  the 
defence  to  the  merits  is  always  made  to  the  cause  of  action 
as  set  forth  in  the  declaration,  there  can  be  no  surprise  to 
the  defendant,  nor  can  the  omission  work  any  detriment 
to  his  riglits.  Tlie  office  of  the  summons  ad  respondendum 
is  to  notifv  the  defendant  of  tlie  nature  of  the  demand  to 
be  made  against  him,  and  to  call  him  into  court  to  re- 
spond thereto.  If  the  names  of  the  parties  to  the  suit,  the 
nature  of  the  action  and  the  time  for  the  appearances  be 
distinctlv  set  forth  in  the  sunmions,  it  would  seem  to  be 
all  that  is  requisite,  until  the  filing  of  the  declaration,  to 
enable  the  defendant  to  prepare  for  his  defence;    and    the 

onii<*sion  to    state    the    amount    of    the    debt    or    damages 

IT? 

must  be  viewed  merely  as  an  irregularity  and  curable 
hv  amendment. 

It  is  true  that  in  this  case  no  amendment  was  asked  for 
or  made,  but  the  plaintiff  proceeded  to  take  his  judgment 
for   the   damages   while   the   summons   remained    thus   un- 


.^ 


TERM  AT  TAMPA,  1856.  727 


Camp!)ell   vs.   Chaffee  et  al. — Opinion  of  Court. 

amended.  It  is,  however,  well  settled,  that  upon  error 
brought,  where  an  amendment  in  matter  of  form  is  admis- 
sible, tlie  law  will  presume  that  it  has  been  made  and  will 
give  the  party  entitled  to  the  same,  the  full  benefit  of  it,  as 
though  it  had  been  actually  made. — Vide  Tidd's  Practice, 
928,  citing  2  Str.  1,011;  Stephens  vs.  White,  2  Wash.  R. 
203.  The  cases  of  McClelland  vs.  Crafton,  6  Greenleaf, 
307,  and  Clark  vs.  Herring,  5  Binn.,  33,  cited  to  the  point 
under  consideration  by  the  counsel  for  the  appellant,  from 

1  Metcalf  &  Perkin's  Digest,  146,  §  60,  do  not  support  the 
position  assumed,  but  rather  sustain  our  views.  The  cita- 
tion from  the  Digest  is  as  follows:  "The  total  omission  or 
the  smallness  of  the  ad  damnum  in  a  writ  cannot  pro- 
perly be  considered  as  merely  a  circumstantial  error 
within  the  statute  of  1821,  chap.  59,  after  the  rendition 
of  judgment;  but,  until  judgment,  it  may  be  so  con- 
sidered. Therefore,  where  no  damages  had  been  laid  in 
the  writ,  the  plaintiff,  after  verdict  and  before  judgment, 
may  have  leave  to  amend  by  inserting  a  sufficient  sum." 
Now  it  will  be  here  noted  that  the  materiality  of  the 
omission  is  made  to  depend  upon  the  peculiarity  of  the 
local  statute,  and  that  notwithstanding  such  materiality, 
the  error  was  amendable  before  judgment. 

On  the  same  page  of  the  Digest,  and  in  paragraph  61,  it  is 
said,  "but  where  no  ad  damnum  is  inserted  in  the  writ,  and 
the  jurisdiction  of  the  court  depends  on  the  amount  of  the 
damages  demanded,  the  defect  cannot  be  amended,"   citing 

2  N.  H.,  322,  Holt  vs.  Molony.  In  thia  case  it  will  be  seen 
that  the  refusal  to  admit  the  amendment  is  based  upon 
the  fact  that  the  amount  of  the  ad  damnum  determined  the 
jurisdiction  of  the  court,  and  as  our  Circuit  Courts  are  not 
thus  limited,  the  authority  is  not  applicable. 

As  a  further  argument  in  support  of  our  views,  it  may  be 
remarked  that   in   the   majority   of   the   States   where   this 


728  SUPBEME  COUBT. 


Campbell  vs.  Cb&ffee  et  mL — Opinion  of  Coort. 

question  has  been  adjudicated^  special  bail  is  allowed^  and 
therefore  the  amount  of  the  ad  damnum  is  in  some  meas- 
ure essential  to  be  stated  in  order  to  determine  the  amount 
of  the  bail,  while  in  our  State  there  is  no  such  thing  as 
special  bill.  It  is  doubtful  whether  even  at  common  law 
it  was  usual  or  necessary  to  insert  in  the  original  process 
the  amount  of  the  debt  or  damages.  This  inference  is 
clearly  deducible  from  what  is  said  by  Mr.  Tidd  in  his 
treatise  on  Practice.  Speaking  of  the  original  process  used 
in  the  several  courts,  he  says:  "Before  the  making  of  the 
statute  of  13  Car.  II,  Stat.  2,  c.  2,  a  defendant  might  have 
been  arrested  and  holden  to  bail  for  any  sum  of  money  up- 
on a  common  bill  of  Middlesex  or  latitat,  &c.,  not  expres- 
sing the  particular  cause  of  action.  It  consequently  hap- 
pened that  he  was  frequently  arrested  and  holden  to  bail 
or  imprisoned  for  a  large  sum  of  money,  when  perhaps 
there  was  no  real  plaintiff  or  no  cause  of  action.  To  rem- 
edy this  mischief,  it  was  enacted  that  "no  person  arrested 
by  any  sheriff,  &c.,  by  force  or  color  of  any  bailment  writ, 
bill  or  process,  issuing  out  of  King's  Bench,  wherein  the 
certainty  and  true  cause  of  action  is  not  expressed  partic- 
ularly, shall  be  compelled  to  give  security  for  his  appear- 
ance in  any  penalty  or  sum  of  money  exceeding  the  sum 
of  forty  pounds.'  *'****  "in  trespass,  therefore, 
and  in  other  cases,  where  the  defendant  either  cannot  or  is 
not  meant  to  be  arrested  and  held  to  special  bail,  the  pro- 
cess is  in  general,  in  common  form,  requiring  the  defendant 
to  answer  the  plaintiff  in  a  plea  of  trespass."  ♦  ♦  ♦  ♦  ♦ 
"When  the  cause  of  action  is  of  a  bailable  nature,  and  it 
is  intended  to  arrest  the  defendant  and  hold  him  to  special 
bail  for  a  larger  sum  that  forty  pounds,  there  should  be  a 
clause  of  ac  etiam  in  the  process,  and  in  such  case,  an  omis- 
sion in  the  ac  etiam  part  of  the  writ  of  the  sum  for  which 
the  defendant  is  arrested,  or  that  it  was  due  on  promises, 


TERM  AT  TAMPA,  1856.  729 

Campbell  vs.  Chaffee  et  al. — Opinion  of  Court. 

is  irregular  and  he  cannot  be  holden  to  special  bail  thereon." 
2  Tidd  Prac,  149-'50. 

The  same  author  at  page  159,  remarks  further  on  this 
subject,  "By  the  statute  12  Geo.  1,  c.  29,  s.  2,  the  sum 
specified  by  the  affidavit  of  the  cause  of  action  is  required 
to  be  indorsed  on  the  back  of  the  writ  or  process  for  holding 
the  defendant  to  special  bail.  This  part  of  the  statute,  how- 
ever, is  merely  directory  to  the  sheriff,  and  does  not  avoid 
the  process  when  the  sum  sworn  to  is  not  indorsed  up- 
on it." 

From  this  authority  it  would  seem  that  the  only  object 
to  be  accomplished  by  stating  the  amount  of  the  debt  or 
damages  in  the  process,  is  to  lay  the  foundation  for  holding 
the  defendant  to  bail,  but  as  by  our  statute  no  bail  can  be 
required  of  the  defendant,  the  rule  would  seem  to  be  inap- 
plicable to  our  practice,  upon  the  maxim  of  ceaante  ratione, 
cesat  ipsa  lex. 

The  next  question  proposed  to  be  considered  is  how 
such  omission  may  be  taken  advantage  of,  whether  by 
motion,  or  by  plea  in  abatement.  It  is  laid  down  in  all 
of  the  treatises  on  the  subject  of  pleading  that  as  oyer  of 
the  writ  cannot  now  be  craved,  no  matter  apparent  upon 
the  face  of  the  writ  can  be  made  the  subject  of  a  plea  in 
abatement,  unless  the  mistake  in  the  writ  be  carried  also 
into  the  declaration.  Only  matters  extrinsic,  or  dehors 
the  writ,  such  as  misnomer,  coverture,  non-joinder,  &c., 
&c.,  can  be  thus  pleaded.  Vide  1  Chitty  on  Pleading,  279, 
485,  and  '6;  Tidd^s  Practice,  636.  Matters  apparent  upon 
the  face  of  the  writ  must  therefore  be  the  subject  of  motion. 

The  citations  made  by  the  counsel  for  the  appellant, 
from  1  TJ.  S.  Dig,  p.  5,  8  85,  86  and  87,  are  manifestly  in 
conflict  with  the  English  rule  upon  the  subject.  We  have 
not  had  access  to  the  cases  referred  to,  and  it  is  not  improb- 


730  SUPREME  COURT. 

Ilooker  vs.  Johnson. — Statement  of  Case. 

able  that  the  doctrine  as  laid   down  in   the   Digest,  may  be 
broader  than  is  warranted  by  the  cases. 

Upon  a  mature  consideration  of  the  subject,  we  are  of 
opinion  that  there  was  no  error  in  overruling  the  defen- 
dant's plea  in  abatement.  Therefore  let  the  judgment  of 
the  Circuit  Court  be  affirmed. 


William  B.  Hooker,  Appellant,  vs.  William  H.  John- 
son, Appellee. 

1.  Where  a  witness  has  a  Joint  interest  with  the  party  for  whom  be  is  called  to 
testify,  either  in  the  subject  matter  to  be  recovered  or  in  the  contract  as  a 
general  partner,  Joint  or  part  owner,  or  joint  contractor,  by  which  he  has  an 
interest  in  the  very  thing  claimed  or  in  the  money  to  be  received,  he  Is  in- 
competent. 

2.  Although  a  witness  has  answered  that  he  is  not  interested  in  the  result  of 
the  suit  pending,  this  does  not  prevent  a  further  examination  into  bis  real 
situation  and  the  facts  of  the  case  as  to  his  interest. 

^.  The  statute  of  1854,  as  to  the  admission  of  shop  books  and  other  accounts 
in  evidence  construed.  Held,  to  adopt  the  liberal  principle  of  the  American 
courts  with  their  reatrlctions,  that  It  is  not  confined  to  merchants  ;  that  the 
entries  to  be  admitted  must  be  originally  made  or  contemporaneous  with 
the  transaction  :  that  the  book  must  appear  to  be  fairly  kept,  and  free  from 
erasures  and  interlineations,  and  the  party  make  affidavit  that  the  articles 
were  delivered  and  the  labor  and  services  actually  performed  ;  that  the  en- 
tries were  made  at  or  about  the  time  of  the  transactions  and  are  the  original 
entries,  and  that  the  charges  have  not  been  paid. 

4.  As  a  general  rule,  evidence  must  be  given  to  the  Jury  before  the  case  is  sub- 
mitted and  the  Judge  gives  his  charge,  yet  there  are  exceptions,  and  the 
omission  to  read  the  obligation  declared  on,  which  is  admitted  by  the  plead- 
ings, is  one  of  these. 

5.  The  instructions  of  the  court  to  the  Jury  should  be  confined  to  the  issue 
made  by  the  pleadings,  even  although  this  be  immaterial. 

Appeal  from  Hillsborough  Circuit  Court. 

Johnson,  the  appellee,  instituted  an  action    of    covenant 


TERM  AT  TAMPA,  1856.  731 


Hooker  vs.  Johnson. — Statement  of  Case. 

against  the  appellant  in  the  court  below,  on  an  agreement 
in  writing  between  the  parties,  dated  18th  January,  1853, 
which  agreement  is  fully  set  forth  in  the  opinion  of  the 
court.  The  declaration  alleges  that  Hooker  the  defend- 
ant, did  not  perform  his  covenants  in  the  several  respects 
set  forth  in  the  agreement,  and  that  he  did  not  furnish 
seed,  corn,  &c.,  as  he  therein  agreed.  The  defendant  filed 
five  pleas — to  the  two  first  of  which  there  was  a  demurrer, 
and,  the  demurrer  being  sustained,  the  said  two  first  pleas 
were  stricken  out.  The  remaining  three  pleas  allege,  first, 
that  the  plaintiff  hath  not  well  and  truly  performed  his 
part  of  the  said  contract;  second,  that  whatever  part  of 
said  contract  was  left  unperformed  by  defendant  was  so 
left  by  reason  of  the  non-performance,  by  plaintiff,  of  his 
part  of  said  contract;  third,  that  the  plaintiff  was  indebted 
to  defendant  in  a  large  sum  of  money  on  various  accounts, 
which  he  prays  may  be  set  off,  &c. 

At  the  trial,  the  plaintiff  offered  two  witnesses,  who 
were  first  sworn  on  their  voir  dire.  One  of  them,  .lessee 
Gibson,  being  questioned  as  to  his  interest,  answered  that 
"he  was  not  interested  in  the  result  of  the  present  suit." 
He  was  then  asked,  if  "he  and  plaintiff  had  not  agreed  to 
plant  the  premises  in  the  declaration  mentioned  in  part- 
nership before  or  at  or  after  the  said  contract  between 
plaintiff  and  defendant,"  but  plaintiff  by  his  counsel  ob- 
jected, and  tlie  court,  sustaining  the  objection,  refused  to 
allow  the  witness  to  answer.  Plaintiff's  counsel  then  ad- 
vised the  court  and  defendant's  counsel  that  they  with- 
draw their  objection  to  the  above  interrogatory;  but  de- 
fendant's counsel  replied  that  they  would  impeach  the  tes- 
timony by  other  witnesses.  With  this  view,  Seth  Howard 
was  asked  by  defendant  what  he  knew  in  relation  to  the 
partnership  of  Jesse  Gibson  with  plaintiff  in  planting,  &c. ; 
but  the  counsel  for  plaintiff  objected  and  the  court  sus- 


732  SUPREME  COURT. 


Hooker  vs.  Johiuoo. — Opinion  of  Conrt. 

tained  the  objection.  To  which  ruilng  of  the  court  defen- 
dant by  his  counsel  excepted. 

Defendant  by  his  counsel  then  proposed  to  introduce 
the  book  of  defendant  in  which  the  original  entries  were 
made  of  the  supplies  the  plaintiff  had  received  from  defen- 
dant, without  having  first  introduced  evidence  to  show  that 
said  book  was  a  merchant's  book,  or  to  show  its  character; 
but  plaintiff's  counsel  objected,  and  the  court  ruled  that 
the  book  could  not  be  introduced  as  evidence.  To  which 
ruling  defendant  by  his  counsel  excepted. 

After  the  case  was  submitted,  and  the  court  was  about 
to  charge  the  jury,  the  plaintiff's  counsel  asked  leave  to 
read  the  agreement  or  obligation  in  which  the  suit  was 
founded  to  the  .jury,  which  leave  being  allowed,  defendant 
by  his  counsel  excepted. 

Defendant  by  his  counsel  then  moved  the  court  to  in- 
struct the  jury,  that  if  they  believed  from  the  testimony 
that  the  plaintiff  did  not  perform  his  part  of  the  contract, 
then  they  should  find  for  he  defendant.  The  court  gave 
this  instruction,  with  the  qualification  that  if  the  jury  find 
that  such  non-performance  on  the  part  of  the  plaintiff  was 
occasioned  by  the  act  of  the  defendant,  then  the  defendant 
would  be  liable.  To  which  qualification  defendant  by  his 
counsel  excepted. 

James  Oettis  and  Jamies  T,  Magbee,  for  Appellant. 

J.  K.  Olover,  J.  B,  Lancaster  and  3f.  Whit  Smithy  for 
Appellee. 

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

This  is  an  action  of  covenant  on  an  obliagtion  dated  the 
18th  of  January,  1853,  between  William  B.  Hooker,  of  the 
one  part,  and  William  H.  Johnson  of  the  other.  William 
B.  Hooker  of  the  first  part  agrees  and  binds  himself  to  fur- 


TEBM  AT  TAMPA,  1856.  733 

Hooker  va.  Jobnaon. — Opinion  of  Court 

nish  three  hands,  negroes,  to-wit:  Nancy,  Dick  and  Josh, 
two  horses  to  plough  and  plenty  of  horse  feed  for  the  same, 
all  to  be  furnished  on  the  premises  now  occupied  by  said 
Hooker  about  four  miles  north  of  Fort  Hamer  in  Hills- 
borough county,  and  the  said  Hooker  further  obligated 
himself  to  furnish  sea  island  cotton  seed,  to  plant  say  thirty 
three  acres  of  said  premises,  and  all  other  seeds  necessary 
for  planting,  say  com,  potatoes,  cane,  rice,  &c.,  the  balance 
of  said  premises,  say  20  acres;  also  to  furnish  a  sufficiency  of 
teams  to  do  all  necessary  hauling  about  the  same.  He  also 
agrees  and  binds  himself  to  furnish  a  sugar  mill  to  grind 
the  cane  that  may  be  made  free  of  toll,  also  a  cotton  gin  on 
the  premises  to  pick  the  crop  of  cotton  that  may  be  made 
free  of  toll,  and  all  necessary  farming  tools  to  cultivate  the 
before  i^ientioned  premises.  He  further  binds  himself  to 
furnish  said  Johnson  and  all  others  that  may  be  with  him, 
say  his  family,  sons  in  law  and  families  with  provisions  at 
the  customary  prices  of  the  country  for  their  use  and  con- 
sumption during  the  cultivation  and  gathering  of  the  be- 
fore mentioned  crops.  He  also  agrees  to  give  said  John- 
son and  others  aforesaid,  access  to  his  cowpens  to  milk  as 
much  as  they  may  want,  &c.,  to  furnish  the  present  build- 
ings for  the  use  of  the  said  families,  also  to  build  two  other 
houses  or  rooms  during  the  next  spring  for  their  use  and  oc- 
cupation during  the  making  and  gathering  the  crop.  For 
and  in  consideration  of  the  before  mentioned  farm  hands, 
horses,  feed,  &c.,  the  said  Hooker  is  entitled  to  have  one 
equal  half  part  of  all  the  before  mentioned  crop. 

And  said  Johnson  obligates  himself  to  cultivate  to  the 
best  of  his  skill  and  ability  the  farm  and  premises,  and 
gather  and  house  the  same  as  early  as  practicable,  with 
three  hands  in  conjunction  with  said  negroes  furnished  by 
Hooker,  said  negroes  to  be  furnished  by  Johnson.  For 
and  in  consideration  of  said  hands,  &c.,  Johnson  is  entitled 


734  SUPBEME  COURT. 


Hooker  vs.  Johnson. — Opinion  of  Court. 

to  have  and  receive,  one  equal  half  part  of  the  above  men- 
tioned crop,  that  is  to  say  the  crop  of  1853. 

It  is  alleged  that  the  defendant  did  not  perform  his  cove- 
nant in  the  several  respects  above  stated  by  not  furnish- 
ing seed  corn,  &c.  There  are  five  pleas  to  which  a  demur- 
rer was  filed,  but  this  it  is  agreed  applied  only  to  the  first 
and  second,  which  were  stricken  out  by  order  of  the  court, 
80  that  there  remain  but  three,  on  which  issue  was  joined 
which  the  jury  was  sworn  to  try.     . 

These  allege,  1st.  That  plaintiff  hath  not  well  and  truly 
performed  his  part  of  the  said  contract.  2d.  That  what- 
ever part  of  said  contract  was  left  unperformed  by  defen- 
dant was  so  left  by  reason  of  the  non-performance  by  plain- 
tiff of  his  part  of  said  contract,  and  3dly.  That  the  plain- 
tiff was  indebted  to  defendant  in  a  large  sum  of  money  on 
various  accounts  which  he  prays  may  be  set  off,  &c.  Dn- 
riug  the  trial  plaintiff  offered  two  witnesses,  who  being  sworn 
on  their  voir  dire,  one  of  them,  Jesse  Gibson,  was  ques- 
tioned as  to  his  interest,  and  answered,  that  "he  was  not  in- 
terested in  tlie  result  of  the  pending  suit;"  he  was  then  aske<l 
if  "he  and  the  plaintiff  liad  not  agreed  to  plant  the  premises 
ill  the  declaration  mentioned  in  partnership  before,  at  or 
after  the  said  contract,"  but  plaintiff  objected  and  the 
court  sustained  the  objection  and  refused  to  allow^  the  wit- 
ness to  answer.  Plaintiff's  counsel  informed  the  court  and 
defendant's  counsel  that  they  withdrew  their  objections  to 
the  above  interrogatories,  but  defendant  by  his  counsel 
replied  that  they  would  impeach  the  testimony  by  other 
witnesses.  With  this  view  Seth  Howard  was  asked  bv 
defendant  what  he  knew  in  relation  to  the  partnership  of 
Jesse  Gibson  with  plaintiff,  in  planting,  &c.,  but  the 
counsel  for  plaintiff  objected,  and  the  court  sustained  the 
objection. 

This  ruling  of  the  court  being  excepted   to,   forms  the 


TERM  AT  TAMPA,  1856.  735 


Hooker  vs.  Johnson. — Opinion  of  Court. 

first  question  for  our  consideration.  The  rule  for  the  rejec- 
tion of  a  witness  so  situated  is,  that  "wliere  actual  gain  or 
loss  would  result  simply  and  immediately  from  the  verdict 
and  judgment,  he  is  incompetent,  as  where  the  proffered 
witness  is  a  party,  though  hut  a  nominal  party  to  the  suit, 
or  is  a  party  in  henefiical  interest,  or  where  the  immediate 
effect  of  the  verdict  will  he  to  increase  or  diminish  a  fund 
in  which  he  has  a  joint  interest,  as  where  a  partner  seeks 
to  increase  the  joint  funds  or  one  jointly  interested  in  the 
subject  of  the  suit  is  called  as  a  witness  for  the  party,  or 
in  short,  wherever  the  direct  effect  of  the  executed  judg- 
ment as  contradistinguished  from  its  efficacy  in  establish- 
ing or  evidencing  any  other  right  or  claim  or  for  any  other 
collateral  purpose  would  be  to  produce  some  benefit  or 
make  some  prejudice  to  the  proposed  witness."  1  Starkie 
108,  9. 

In  a  note  to  the  same  note  it  is  said,  "a  co-partner  or  par- 
ty jointly  interested  in  the  subject  of  the  suit  has  usually 
a  direct  interest  in  the  particular  subject  as  contra-distin- 
guished from  a  mere  liability  to  contribution.  This  seems 
to  be  generally  true  where  he  is  jointly  interested  with  the 
plaintiff  in  the  subject  of  the  suit,  for  he  would  be  jointly 
entitled  to  the  fruit  of  the  proceeding  when  reduced  into 
possession,  whether  it  were  in  money  or  goods,"  &c.  Ibid, 
note  9,  p,  108. 

The  rule  is  further  laid  down  in  these  terms,  "in  gener- 
al where  it  is  admitted  or  asserted  that  the  proffered  wit- 
ness has  a  joint  interest  with  the  party  who  calls  him  eith- 
er in  the  subject  matter  to  be  received  or  in  the  contract 
as  a  general  partner,  joint  or  part  owner,  or  joint  contrac- 
tor, by  which  he  has  an  interest  in  the  yery  thing  claimed 
or  in  the  money  to  be  recovered,  or  in  the  costs  incidental 
to  the  suit,  he  is  incompetent  to  give  evidence  for  that  par- 
ty."   1  Starkie,  164. 


736  SUPBEME  COUBT. 


Hooker  vs.  Johnson. — Opinion  of  Court. 

It  was  proposed  to  show  that  the  witness  had  an  interest 
such  as  is  here  stated,  and  his  answer  if  in  the  afl5rmati?e 
would  have  shown  that  he  was  a  partner,  or  jointly  or  ben- 
eficially interested  in  the  thing  claimed.  Viewed  in  this 
light  we  think  the  question  was  a  proper  one,  and  that  the 
court  should  have  permitted  it.  Nor  do  we  think  that  the 
fact  of  the  witness  having  answered  that  he  had  no  inter- 
est, was  any  cause  or  8u;fficient  reason  for  preventing  furth- 
er enquiry;  the  party  was  entitled  to  know  his  position  and 
real  situation — the  facts  of  the  case  so  as  to  test  the  accura- 
cy of  his  belief  or  opinion. 

We  do  not  concur  in  the  position  of  counsel  of  plaintiff 
that  defendant,  by  questioning  this  witness  on  his  voir 
dire,  made  the  witness  his  own. 

Defendant's  counsel  then  proposed  to  introduce  the 
book  of  defendant  in  which  the  original  entries  were  made 
of  the  supplies  the  plaintiff  had  received  from  defendant, 
without  first  having  introduced  evidence  to  show  that  said 
book  was  a  merchant's  book,  or  to  show  the  character  of 
the  book;  but  plaintiff's  counsel  objecting,  the  court  ruled 
that  the  book  could  not  be  introduced  as  evidence,  and  this 
ruling  was  excepted  to.  In  the  absence  of  the  book  or  its 
contents,  without  having  the  charges  and  entries  before  us, 
it  is  impossible  for  this  court  to  say  Nwhether  the  court  was 
right  or  wrong  in  this  ruling.  The  exceptions  should  un- 
doubtedly have  given  the  entries  and  charges  desired  to 
be  introduced,  and  if  the  original  book  was  desirable,  an 
order  might  be  obtained  for  its  inspection  by  this  court. 
We  cannot  then  say,  under  this  state  of  the  case,  that  the 
court  erred  in  the  exclusion  of  the  book.  Whilst  we  have 
come  to  this  conclusion,  as  the  subject  may  arise  again,  on 
the  further  trial  of  the  case,  it  is  proper  that  we  should 
give  a  construction  of  the  statute  under    which    this    testi- 


TEEM  AT  TAMPA,  1866.  787 


Hooker  ts.  Johnsoii. — Opinion  of  Court 

mony  is  sought  to  be  introduced.  It  is  very  brief,  and  is 
in  the  following  words : 

"Hereafter,  in  all  suits  and  actions  at  law  or  in  equity, 
the  shop  books  and  books  of  accounts  of  either  party  in 
which  the  charges  and  entries  shall  have  been  originally 
made,  shall  be  admissible  in  evidence  in  favor  of  either 
party:  Provided,  that  the  credibility  of  such  evidence 
shall  be  judged  of  by  the  jury  in  cases  of  trial  at  law,  and 
by  the  court  in  case  of  a  hearing  in  equity." — Laws  1854, 
p.  65. 

"There  are  three  points  to  be  considered  in  the  con- 
struction of  all  remedial  statutes:  the  old  law,  the  mis- 
chief and  the  remedy;  that  is,  how  the  common  (or 
old)  law  stood  at  the  making  of  the  act,  what  the  mis- 
chief was  "for  which  the  common  (former)  law  did  not 
provide,  and  what  remedy  the  Legislature  hath  provided 
to  cure  this  mischief.  And  it  is  the  business  of  the  judge 
so  to  construe  the  act  as  to  suppress  the  mischief  and  ad- 
vance the  remedy." — I  Blks.  Com.,  87. 

The  Supreme  Court  of  the  State  had  declared,  in  tlie 
case  of  Shehee  vs.  Higgs,  decided  at  January  term,  1852, 
that  "a  book  account  is  not  admitted  in  this  State  to  be 
evidence  of  the  sale  and  delivery  of  goods."  They  say: 
"The  facts,  though  admitted  by  the  demurrer  to  be  true, 
that  the  witness  was  clerk  and  book-keeper  for  the  plain- 
tiff, and  knew  of  the  existence  of  the  account  and  of  its 
amount  from  an  examination  of  the  books,  that  the 
account  filed  was  a  correct  transcript  from  the  books  and 
that  he  believed  the  books  to  be  fairly  and  honestly  kept, 
are  not  direct  proofs  of  the  assumpsit  of  the  defendant,  as 
charged  in  the  declaration."  In  this  State,  they  say,  "we 
have  not  adopted  the  English  rule,  which  is  in  perfect  con- 
sistency with  the  law  of  evidence." — 4  Florida  Rep.,  391. 
The  judges  differed  in    opinion,    so    that    a  definite    rule 


788  SUPBBME  COTTBT. 


Hooker  vs.  Johnson. — Opinion  of  Court. 

could  scarcely  be  regarded  as  established  by  the  decision. 
Referring  to  decisions  of  otlier  States,  we  find  a  great  di- 
versity ,of  opinion,  some  not  admitting  the  books  at  all, 
others  admitting  them  with  qualifications. 

An  American  author  of  great  ability  and  distinction 
takes  this  view  of  the  subject:  "Though  this  evidence  has 
been  sometimes  said  to  be  admitted  contrary  to  the  rules 
of  the  common  law,  yet,  in  general,  its  admission  will  be 
found  to  be  in  perfect  harmony  with  those  rules,  the  entry 
being  admitted  only  when  it  evidently  was  contempora- 
neous with  the  fact  and  part  of  the  register.  Being  the  act 
of  the  party  himself,  it  is  received  with  greater  caution; 
but  still  it  may  be  seen  and  inspected  by  the  jury." — 1 
Greenleaf  Ev.*,  205,  §  118. 

In  a  note,  the  same  author  says:  "The  rules  of  the  seve- 
ral States  in  regard  to  the  admission  of  this  evidence  are 
not  uniform  but  in  what  is  about  to  be  stated,  it  is  be- 
lieved that  they  concur.  Before  the  books  of  the  party 
can  be  admitted  in  evidence,  they  are  to  be  submitted  to 
the  inspection  of  the  court,  and  if  they  do  not  appear  to  be 
a  register  of  the  daily  business  of  the  party,  and  to  have 
been  honestly  and  fairly  kept,  they  are  excluded.  If  they 
appear  manifestly  erased  and  altered  in  a  material  part, 
they  will  not  be  admitted,  unless  the  alteration  is  ex- 
plained. If  objectionable  in  this  respect,  the  party  then 
is  required  to  make  oath  in  open  court  that  they  are  the 
books  in  which  the  accounts  of  his  ordinary  business  trans- 
actions are  usually  kept.  He  must  also  swear  that  the 
articles  therein  charged  were  actually  delivered  and  the 
labor  and  services  actually  performed;  that  the  entries 
were  made  at  or  about  the  time  of  the  transactions  and  are 
the  original  entries  thereof,  and  that  the  sums  charged  and 
claimed  have  not  been  paid. — Greenleaf,  §  118,  p.  215,  n.  1. 

In  this  state  of    uncertainty    in    our    own    State    as   to 


TERM  AT  TAMPA,  1856.  739 

Hooker  vs.  Johnson. — Opinion  of  Court. 

whether  the  rigid  and  strict  rule  sliall  prevail,  or  the  more 
relaxed  one  existing  in  other  States,  it  was  appropriate 
for  the  Legislature  to  assert  the  true  law  and  thereby  ter- 
minate the  difficulties.  This  they  have  done  by  the  law 
under  consideration.  Thev  declare  that  the  relaxed  rule 
shall  prevail  that  hooks  shall  be  evidence,  not  absolutely, 
but  with  the  qualification  that  "the  entries  and  charges  in 
it  shall  have  been  originally  made,"  by  which  we  under- 
stand that  there  must  be  proof  adduced  to  show,  in  the 
first  instance,  that  they  were  so  made.  We  think,  also, 
that  the  law  does  not  confine  the  privilege  to  merchants, 
but  extends  to  either  party  in  all  suits  and  actions, 
whether  merchants  or  not. 

It  is  perceived  that  the  law,  whilst  declaring  that  books 
shall  be  received  in  evidence,  is  silent  as  to  the  mode  of 
their  admission,  except  so  far  as  it  says  that  the  books  in 
which  the  charges  and  entries  shall  have  been  originally 
made,  shall  be  admissible.  Under  such  circumstances,  we 
have  no  difficult}'  in  saying  that  the  wise  and  beneficent 
design  of  the  Legislature  would  be  best  effected  by  hold- 
ing, as  we  do,  that  the  relaxed  rule  in  operation  in  our 
sister  States,  with  the  restrictions  and  qualifications  at- 
tached thereto,  shall  prevail  here.  This  will  secure  and 
attain  the  end  and  object  of  the  Legislature,  and  avoid  the 
injury,  mischief  and  frauds  sure  to  attend  the  adoption  of 
a  more  latitudinous  construction. 

After  the  case  was  submitted  and  the  court  was  about 
giving  instructions  to  the  jury,  the  plaintiff  asked  leave  to 
read  the  obligation  on  which  the  suit  was  founded  to  the 
jury,  which  having  been  allowed,  an  exception  was  taken. 
Undoubtedly  the  general  rule  is  that  all  the  testimony  shail 
be  given. to  the  jury  before  the  argument  of  the  case,  yet 
there  are  exceptions  within  the  discretion  of  the  court  be- 
low. See  United  States  Digest,  722,  §  1497;  5  Dana,  504; 
6  Metcalf,  412 ;  1  Hill,  300 ;  4  B.  M.,  575.    And    we    think 


740.  SUPEEMB  COUBT. 


Hooker  vs.  Johnson. — Opinion*  of  Court. 

that  discretion  was  wisely  exerted  on  the  present  occasion. 
It  is  indeed  difficult  to  see  how  the  case  could  have  pro- 
gressed at  all  without  the  obligation  being  before  both  the 
court  and  jury;  it  was  part  of  the  declaration  and  the  sub- 
stratum of  the  whole  proceeding.  As  there  was  no  plea 
denying  it,  the  defendant  is  understood  by  the  rules  of  law 
to  have  admitted  so  much  of  it  as  was  spread  upon  the  re- 
cord. It  was  not  then  a  contested  point  or  matter  about 
which  defendants  could  have  been  surprised  or  desired  to 
introduce  other  testimony.  Why  then  non-suit  the  pariy 
on  such  account  for  no  other  than  the  vain  and  idle  pur- 
pose of  having  another  trial  and  doing  a  laborious  work 
over  again? 

The  defendant  moved  the  court  to  instruct  the  jury  that 
if  they  believed  from  the  testimony  that  the  plaintiff  did  not 
perform  his  part  of  the  contract,  then  they  should  find  for 
the  defendant,  which  the  court  gave  with  a  qualification 
that  if  the  jury  find  that  such  non-performance  on  the  part 
of  the  plaintiff  was  occasioned  by  the  act  of  the  defendant, 
the  defendant  would  be  liable. 

It"  is  insisted  that  the  court  erred  in  attaching  this  qual- 
ification, and  we  are  inclined  to  that  opinion.  By  referring 
to  the  issues  which  the  jury  were  sworn  to  try,  we  find 
none  alleging  that  a  non-performance  of  the  plaintiff  was 
occasioned  by  defendant.  If  tliere  be  none,  then  there  was 
no  authority  on  the  part  of  the  court  to  give  to  plaintiff  the 
advantage  of  a  position  he  had  not  assumed  in  his  plead- 
ings. If  the  pleadings  presented  an  immaterial  issue,  the 
remedy  is  not  by  instructions  but  by  pleadings,  raising  the 
proper  issue.  We  tliink  then  that  under  the  issues  before 
the  jury  the  defendant  was  entitled  to  the  instruction  prayed 
for.  As  tlie  case  will  be  reversed  for  the  reasons  already 
stated,  permission  should  be  given  to  amend  as  well  the 
declaration  as  the  other  pleadings  so  as  to  present  the  case 
fully  and  fairly  upon  the  merits. 


Decisions 


OF  THE 


Supreme  Court  of  Florida, 


AT 

MARCH  TERM,  1856, 
Held  at  Mariana. 


James  M.  Brown^  Appellant,  vs.  Amos  Sxell,  Appellee. 

1.  Until  the  condition  of  a  mortgagee  be  broken  and  the  same  be  actually  fore- 
closed, the  mortgagor  and  all  claiming  under  him  may  maintain  an  ejectment 
to  recover  the  ponsession  of  the  mortgaged  premises. 

2.  When  the  land  of  one  individual  is  sold  by  the  Tax  Collector  to  pay  the  taxes 
due  upon  that  particular  tract,  together  with  the  taxes  due  upon  other  lands 
belonging  to  another  individual,  the  sale  is  invalid,  and  the  deed  from  the 
Tax  Collector  conveys  no  title. 

Appeal  from  the  Circuit  Court  of    the    Western    Circuit 
for  Jackson  county. 

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

At  the  trial  of  this  case  in  the  Circuit  Court,  a  jury  was 
waived  by  consent  of  the  parties,  and  the  court  was  called 
upon  under  the  provisions  of  the  statute,  to  give  judgment 
upon  the  facts,  as  detailed  in  the  record.  A  judgment  was 
rendered  for  the  plaintiff,  the  present  respondent,  and  from 
49 


742  SUPEEME  COURT. 

Brown  vs.   Snell. — Opinion  of  Court. 

that  judgment  the  defendant  appealed,  and  assigns  for  er- 
ror that  the  judgment  should  have  been  for  the  defendant 
This  state  of  the  case  renders  it  necessary  that  we,  also, 
should  look  into  the  facts  in  order  to  determine  tlie  cor- 
rectness of  the  ruling  upon  the  points  of  law  arising  there- 
upon. 

The  action  was  an  ejectment  brought  to  recover  the  pos- 
session of  two  quarter  sections  of  land  situated  in  the  coun- 
ty of  Jackson.  The  evidence  material  to  the  issue  is,  that 
this  land  originally  belonged  to  Amelia  B.  Blackwell  and 
was  by  her  mortgaged  to  the  Union  of  Florida,  prior  to  the 
year  1839.  That  on  the  13th  of  December,  1838,  Amelia 
B.  Blackwell,  by  deed  duly  executed,  conveyed  the  lands 
to  Sidney  S.  Blackwell  of  the  State  of  New  York,  which 
deed  was  duly  recorded  on  the  4th  of  January,  1839.  That 
Sidney  S.  Blackwell,  on  the  25th  of  September,  1854,  con- 
veyed the  same  to  the  lessor  of  the  plaintiff. 

The  evidence  further  says  that  Amelia  B.  Blackwell 
died  insolvent,  and  that  administration  on  her  estate  was 
committed  to  S.  Stephens,  who  repeatedly  returned  the 
land  in  controversy,  together  with  other  lands  in  Jackson 
county,  to  the  Tax  Assessor,  as  the  property  of  the  estate 
of  his  intestate;  that  upon  the  non-payment,  by  said  ad- 
ministrator, of  the  taxes  so  assessed,  the  lands  in  contro- 
versy were  advertised  and  sold  as  the  property  of  Amelia 
B.  Blackwell,  by  the  Tax  Collector,  on  the  3d  day  of  Jan- 
uary, 1851,  at  which  sale  the  defendant  purchased  and 
went  into  possession. 

Upon  this  state  of  facts  the  plaintiff  below  rested  his 
right  to  recover,  under  his  deed  from  Sidney  S.  Blackwell, 
and  the  defendant,  his  defence,  under  the  deed  from  the 
Tax  Collector. 

The  position  assumed  by  the  appellant  is,  that  to 
warrant  a  recovery  in  ejectment,  the  plaintiff  must  show  a 


TEKM  AT  MAEIANNA,  1856.  743 


Brown  vb.  8nell. — Opinion  of  Court. 

valid  legal  title  to  the  premises,  and  that  as  the  fee  in  the 
land  is  in  the  Union  Bank  of  Florida,  the  mortgagee  from 
Amelia  B.  Blackwell,  the  deed  exhibited  at  the  trial  by 
the  plaintiff  conveyed  only  an  equitable  interest,  to-wit: 
the  right  of  redemption. 

It  is  undoubtedly  correct,  as  a  general  rule,  that  in  order 
to  enable  a  claimant  to  support  an  action  of  ejectment,  he 
must  be  clothed  with  the  legal  title  to  the  land;  but  it 
will  be  found  that  this  doctrine  does  not  apply  where  the 
outstanding  title  is  a  mortgage. 

The  tendency  of  judicial  decisions  has  long  been  to  con- 
sider the  mortgage  as  a  mere  lien  or  security,  and  that  the 
mortgagor  remains  in  fact  the  real  owner  of  the  estate  and 
seized  of  it  against  all  persons  but  the  mortgagee  or  his 
representatives,  and  that  it  may  be  conveyed  and  other- 
wise dealt  with  as  the  estate  of  the  mortgagor.  Such  is 
now  the  well  settled  modern  doctrine,  and  it  is  sanctioned 
by  numerous  English  and  American  cases.  In  the  case  of 
the  King  vs.  St.  Michael's,  1  Doug.  E.,  632,  Lord  Mansfield 
remarks,  "The  mortgagee,  notwithstanding  the  form,  has 
but  a  chattel,  and  the  mortgage  is  only  a  security.  It  is 
an  affront  to  common  sense  to  say  the  mortgagor  is  not 
the  real  owner." 

In  Casborne  vs.  Scarfe,  1  Atkins,  606,  Lord  Hardwicke 
says:  "The  interest  of  the  land  must  be  somewhere  and 
cannot  be  in  abeyance;  but  it  is  not  in  the  mortgagee,  and 
therefore  must  remain  in  the  mortgagors.'^ 

The  same  doctrine  is  sustained  by  Kent,  C.  J.,  in  the 
case  of  Jackson  vs.  Willard,  4  John  E.,  42,  who  remarks 
as  follows:  "Mortgages  have  been  principally  the  subject 
of  equity  jurdisdiction.  They  have  been  considered  in  those 
courts  in  their  true  nature  and  genuine  meaning,  and  the 
rules  by  which  they  are  governed  are  settled  upon  clear 
and  consistent  principles.      The  case   is  far  different  in   a 


744  SUPREME  COURT. 


Brown  vs.  Snell. — Opinion  of  Court. 

court  of  law;  and  we  are  constantly  embarrassed  between 
the  force  of  technical  formalities,  and  the  real  sense  of  the 
contract.  The  language,  however,  of  modern  cases,  is 
tending  to  the  same  conclusions  which  have  been  adopted 
in  equity;  and  whenever  the  nature  of  the  case  would  pos- 
sibly admit  of  it,  the  courts  of  law  have  inclined  to  look 
upon  a  mortgage,  not  as  an  estate  in  fee,  but  as  a  mere  se- 
curity for  the  debt"  ' 

Shaw,  C.  J.,  in  commenting  upon  the  subject  in  the 
case  of  Ewer  vs.  Hobbs,  5  Met.,  3,  remarks:  "Herein  it  is 
that  as  between  mortgagor  and  mortgagee,  the  mortgage 
is  to  be  regarded  as  a  conveyance  in  fee,  because  that  con- 
struction best  secures  him  in  his  remedy,  and  his  ulti- 
mate right  to  the  estate  and  its  incidents,  the  rents  and 
profits.  But  in  all  other  respects,  until  foreclosure,  when 
the  mortgagee  becomes  absolute  owner,  the  mortgage  is 
deemed  to  be  a  lien  or  charge,  subject  to  which  the  estate 
may  be  conveyed,  attached,  and  in  other  respects  dealt 
with  as  tlie  estate  of  the  mortgagor.  And  all  the  statutes 
upon  the  subject  are  to  be  so  construed;  and  all  rules  of 
law,  whether  administered  in  law  or  in  equity,  are  to  be 
go  applied  as  to  carry  these  objects  into  effect." 

Mr.  Ililliard,  in  his  admirable  Treatise  on  Mortgages, 
has  laid  down  the  doctrine  in  clear  and  precise  language, 
which  bears  directly  upon  the  very  question  involved  in 
the  objection  of  the  appellant.  He  remarks  as  follows:  "The 
rule  that  a  plaintiff  in  ejectment  cannot  recover  premises, 
the  title  to  which  is  in  a  third  person,  does  not  apply 
when  the  outstanding  title  is  a  mortgage.  A  mortgage 
constitutes  a  title  when  the  mortgagee  comes  into  court  to 
enforce  it;  but,  until  then,  the  mortgagor  is  the  owner. 
Upon  the  same  principle,  the  mortgagor  may  maintain 
ejectment  against  one  who  claims  by  a  conveyance  in  fee 
simple  absolute  from  the  mortgage.       So,  a  mortgagor  or 


TEEM  AT  MARIANNA,  1856.  746 


Brown  vs.  Snell. — Opinion  of  Court. 

purchaser  of  the  equity  of  redemption  may  maintain  tres- 
pass against  the  mortgagee,  or  one  acting  under  his  license, 
where  the  defendant  pleads  liberum  tenementum,  and  the 
plaintiff  replies  that  the  freehold  was  in  himself;  and,  upon 
this  ground,  a  mortgagor  in  possession  gains  a  settlement." 
Hilliard  on  Mortgages,  109. 

These  authorities  fully  sustain  the  doctrine,  that  until 
the  condition  of  a  mortgage  be  broken,  and  the  same  be 
actually  foreclosed,  the  mortgagor  and  all  claiming  under 
him  may  maintain  an  ejectment  to  recover  the  possession 
of  the  mortgaged  premises;  and,  consequently,  we  hold 
that  this  case  is  not  obnoxious  to  the  first  objection  in- 
sisted on  by  the  counsel  for  the  appellant. 

The  next  position  assumed  by  the  appellant  is,  that  the 
statute  gives  a  lien  upon  the  particular  piece  of  property 
for  taxes  due  thereon;  that  the  assessment  of  the  tax  cre- 
ates a  lien  upon  the  thing  itself,  and  not  simply  a  debt 
against  the  owner  of  the  property,  and  that,  therefore,  a 
purchase  under  a  tax  sale  overrides  any  prior  title  to  the 
property.  This  proposition  it  is  unnecessary  to  decide, 
because  it  does  not  apply  to  the  case  before  us,  for  the  rea- 
son that  it  is  shown  by  the  evidence  that  the  land  in  con- 
troversy was  sold  by  the  tax-collector,  not  to  pay  the  taxes 
on  this  particular  tract  of  land  only,  but  for  taxes  due 
upon  this  and  other  lands  which  had  been  listed  by  the 
administrator  of  Amelia  B.  Blackwell  as  belonging  to  the 
estate  of  his  intestate. 

Now,  the  evidence  in  this  case  shows  that  the  land  in 
controversy  had  been  sold  by  the  intestate  to  Sidney  S. 
Blackwell,  who  sold  to  the  lessor  of  the  plaintiff  long  prior 
to  the  tax  sale,  and  to  allow  his  land  to  be  sold  to  pay  the 
taxes  due  upon  lands  belonging  to  the  estate  of  Amelia  B. 
Blackwell  would  be  to  subject  the  property  of  one  man  to 
the  payment  of  a  debt  due  exclusively  .by  another  —  a  re- 


746  SUPREME  COURT. 


Hurly's  Executor  tb.  Roche.— ;-Opiiiion  of  Court. 

suit  which  cannot  be  sustained  upon  any  principle  of  law 
or  equity.  A  purchaser  at  a  tax  sale  purchases  at  his 
peril,  and  he  must  see  to  it  that  the  sale  is  valid. 

As  these  views  are  decisive  of  the  rights  of  the  parties, 
it  becomes  unnecessary  that  we  should  consider  or  deter- 
mine the  point  made  by  the  counsel  for  the  respondent, 
which  involves  the  question  how  far  a  deed  of  conveyance 
from  the  tax-collector  shall  be  valid  to  convey  an  interest  in 
the  land  where  the  premises  are  listed  and  sold  as  tlie  pro- 
perty of  one  man,  when  in  fact  and  in  truth  they  were 
owned  by  another.  It  will  be  time  enough  to  decide  that 
question  when  a  case  shall  arise  in  which  its  decision  may 
become  necessary. 

Upon  a  review  of  the  whole  record,  we  are  of  the  opin- 
ion that  the  court  did  not  err  in  giving  judgment  for  the 
plaintiff.  Therefore  let  the  judgment  of  the  Circuit  Court 
be  affirmed  with  costs. 


John  Hurley's  Ex'or,  Appellant,  vs.  Francis  Roche, 

Appellee. 


1.  The  failure  to  Join  a  defendant  as  joint  contractor  or  partner  Is  onlypleada* 
ble  in  abatement,  and  cannot  be  taken  advantage  of  as  matter  of  yariance  at 
the  trial. 

2.  When  an  account  is  presented  to  a  party,  according  to  the  recoUection  of  a 
witness,  for  over  three  hundred  dollars,  which  defendant  promised  to  pay, 
the  Jury  should  be  instructed  to  find  to  the  extent  of  the  sum  admitted. 

Appeal  from  the  Circuit  Court  for  the  Western  Circuit. 
BALTZELL,  C.  J.,  delivered  the  opinion  of  the  court. 
This  was  a  suit  instituted  by    plaintiff    to    recover    the 


TERM  AT  MABIANNA,  1856.  747 

Hurly's  Executor  vs.  Roche. — Opinion  of  Court. 

amount  of  an  open  account,  alleged  to  be  due  by  defen- 
dant lloche  to  plaintiff's  testator. 

On  the  trial,  Philip  A.  Carro  was  introduced  as  a  wit- 
ness by  the  plaintiff.  Upon  the  account  which  was  filed  in 
the  case  being  placed  in  his  hands,  he  said  that  he  had  pre- 
sented an  account  to  the  defendant  for  payment  in  favor  of 
John  Hurley,  dec'd,  for  something  over  three  hundred 
dollars,  which  defendant  promised  to  pa> ;  but  he  could 
not  say  that  this  was  the  same  piece  of  paper,  or  that  it 
contained  the  same  items  of  charges,  oi  any  of  them; 
thinks  the  account  was  against  Francis  Roche  &  Co.,  and 
that  the  goods  were  so  marked  which  were  sent  to  defen- 
dant. 

Whereupon  plaintiff's  counsel  moved  the  court  to  in- 
struct the  jury,  that  if  the  defendant  admitted  to  Carro, 
witness,  that  any  part  of  the  amount  was  due,  the  jury 
may  find  for  the  plaintiff  to  that  extent,  without  proof  of 
the  identical  amount  sued  on;  which  instruction  the  court 
refused  to  give,  but  instructed  the  jury  that  if  they  were 
satisfied  that  the  account  submitted  in  evidence  is  sub- 
stantially the  same  in  its  items  of  charges  as  that  pre- 
sented to  defendant  by  witness,  which  defendant  promised 
to  pay,  and  are  satisfied  that  the  defendant  promised  to 
pay  any  part  of  the  same,  then  they  may  find  a  verdict 
for  so  much  of  such  amount  as  was  proved  that  defendant 
promised  to  pay. 

Samuel  A.  Leonard  was  also  introduced  as  a  witness, 
and  said  the  account  sued  on  was  placed  in  his  hands  for 
collection;  that  he  presented  the  account  to  defendant, 
which  he  promised  to  pay.  The  account  which  he  pre- 
sented was  against  Francis  Bfoche  &  Co. 

The  court  charged  the  jury,  that  they  must,  in  order  to 
find  for  plaintiff  in  this  action,  be  satisfied  from  the  testi- 
mony that  the  account  sued  on  and  presented  at  the  trial 


748  STJPEEME  COUET. 


McMillan  &  Campbell  vs.   Savage. — Oninion   of  Court. 

is  substantially  the  same  in  its  items  of  charges  as  the  one 
presented  by  witness.  The  court  also  charged  the  jury, 
that  if  the  account  sued  on  and  filed  as  the  cause  of  action 
is  against  Francis  Roche,  and  the  account  presented  to  the 
defendant,  and  which  he  promised  to  pay,  was  against 
Francis  Roche  &  Co.,  there  will  be  a  variation  between 
the  evidence  and  the  declaration,  and  plaintiff  is  not  en- 
titled to  recover  on  such  evidence.  To  these  instructions, 
as  given,  and  the  refusal  to  give  those  asked,  exception 
was  taken,  and  they  present  the  ground  of  error  in  this 
court. 

It  is  conceded  by  defendant's  counsel  that  there  is  error, 
as  we  are  satisfied  there  was,  in  the  refusal  to  give  the  in- 
structions asked  for,  as  well  as  in  the  instructions  given. 

The  law  is  well  settled,  that  the  non-joinder  of  a  defen- 
dant is  pleadable  in  abatement  and  may  not  be  objected 
to  at  the  trial  as  matter  of  variance.  The  instructions 
asked  for,  too,  we  think,  should  have  been  given  as  being 
founded  on  obvious  principles  of  law  and  right. 

The  judgment  will  be  reversed  and  set  aside  and  the 
case  remanded  for  further  proceedings  not  inconsistent 
with  tliis  opinion. 


McMillan  &  Campbell  vs.  Archibald  Savage. 

The  Jurisdiction  of  the  Circuit  Court  by  the  Constitution  embraces  all  matters, 
civil  and  criminal,  and  therefore  extends  to  and  embraces  a  suit  on  a  note 
for  forty  dollars. 

This  is  an  application  for  a  mandamus  to  the   Circuit 
Court  of  the  Western  Circuit. 
The  facts  fully  appear  in  the  opinion  of  the  court. 


TEEM  AT  MAKIANNA,  1866.  749 

McMillan  k  Campbell  vs.   Savage. — Opinion   of  Court. 

D.  P.  Holland,  for  the  application. 

T.  J,  Eppes,  contra, 

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

This  is  an  application  to  cause  a  suit  instituted  for  the 
recovery  of  forty  dollars,  due  by  promissory  note,  to  be 
reinstate  by  the  Circuit  Court. 

It  was  dismissed,  on  account  of  the  smallne?s  of  the  sum, 
for  the  want  of  jurisdiction. 

The  Constitution  of  the  State  regulates  the  matter,  and 
to  it  we  must  look  as  the  guide  for  the  determination  of  the 
question. 

"The  Circuit  Court  shall  have  original  jurisdiction  in 
all  matters,  civil  and  criminal,  within  this  State  not  other- 
wise excepted  in  this  Constitution." — ^Art.  5,  sec.  6,  Con- 
stitution. 

This  provision,  it  is  admitted,  embraces  the  case  of  the 
plaintiff,  unless  it  is  excluded  by  the  exception,  and  it  is 
insisted  that  the  tenth  clause  of  the  same  article,  which  de- 
clares "that  justices  of  the  peace  shall  possess  such  juris- 
diction as  may  be  provided  by  law."  (Con.,  art.  5,  sec.  10,) 
makes  it.  Not  that  this  of  itself  has  that  effect,  but  that  it 
has  in  connection  with  an  act  of  the  Legislature  of  184? 
giving  to  justices  of  the  peace  exchmve  jurisdiction  in 
suits  for  the  collection  of  debts  where  the  principle  does 
not  exceed  the  sum  of  fifty  dollars. 

It  is  sufficient  to  say  that  the  exception  to  abridge  the 
jurisdiction  of  the  Circuit  Court  must  be  by  the  Constitu- 
tion. To  do  this,  and  by  this  means  to  effect  a  repeal  of  a 
constitutional  provision,  there  must  be  an  express  and  di- 
rect declaration  of  the  constitutional  will.  The  grant  of 
power  to  one  tribunal  does  not  necessarily  exclude  the 
possession  of  it  by  another.    The  clause  granting  the  juris- 


750  SUPREME  COURT. 


Lathrop  &  Wilkinson  vs.  Snell. — Opinion  of  Court. 

diction  confers  it  in  all  matters.  An  exception  to  take 
this  away  should  be  clear  and  manifest,  and  not  the  result 
of  mere  implication. 

Whilst  considering  this  view  conclusive,  we  find  our- 
selves sustained  by  the  action  of  the  constitutional  con 
vention  on  the  very  clause  under  consideration.  As  origi 
nally  proposed  to  that  body,  the  clause  contained,  in  addi- 
tion to  its  provisions,  these  words:  '^But  in  civil  cases 
only  where  the  matter  in  controversy  exceeds  twenty  dol- 
lars/' On  motion  they  were  stricken  out  so  as  to  relieve 
the  provision  of  this  limitation.  There  could  have  been 
but  one  design  on  the  part  of  the  Convention  in  this  ac- 
tion, and  this  was  not  to  abridge  or  limit  the  jurisdiction 
of  the  Circuit  Courts  in  this  respect. 

The  cause  will  then  be  reinstated  on  the  docket  of  the 
Circuit  Court. 

It  has  not  been  the  practice  of  the  court  to  award  a  man- 
damus, conceiving  that  the  intimation  of  the  opinion  of 
this  court  on  the  point  would  be  suflScient  to  influence 
their  action  without  the  formal  award  of  the  writ. 


Lathrop    &    Wilkinson,    Appellants,    vs.    Amos  Snell 

Appellee. 

Where  the  same  Indlvidauls  do  business  under  different  names  or  styles  In  two 
separate  houses,  the  parties  in  Interest  being  the  same,  their  rights  and  lia- 
bilities as  co-partners  will  not  be  affected  thereby  and  they  will  be  regarded 
as  constituting  one  and  the  same  firm  ;  and,  in  such  cases,  a  creditor  whose 
debt  Is  created  in  the  name  of  and  with  on^  house,  may  proceed  by  gamlBb- 
ment  to  subject  to  his  claim  a  debt  contracted  in  favor  of  such  copartners  in 
the  name  of  the  other  house. 

Appeal  from  the  Circuit  Court  of  the  Western  Circuit 


TERM  AT  MARIANXA,  1856.  751 


Lathrop  &  Wilkinson  vs.  Snell. — Opinion  of  Court 

For  the  facts  of  the  case,  see  the  opinion  of  the  court. 

J.  F.  McClellan,  for  Appellants. 

Bush  &  Milton,  for  Appellee. 

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

The  plaintiffs  brought  their  action  by  attachment  against 
the  defendants,  and  upon  the  return  of  nulla  bona  by  the 
sheriff  a  summons  in  garnishment  was  issued  and  served 
upon  the  garnishee  Amos  Snell.  The  plaintiffs  took  judg- 
ment against  the  defendants,  and  Snell  made  his  answer  to 
the  summons  in  garnishment,  in  which  he  admits  that  he 
is  indebted  to  the  late  firm  of  Simmons,  Stewart  &  Co.,  of 
Geneva,  Alabama,  in  the  sum  of  one  hundred  and  ninety 
dollars. 

The  plaintiffs  in  their  declaration  complain  of  Elijah  H. 
Simmons,  Elijah  J.  Hays  and  Ji)hn  B.  Simmons,  surviv- 
ing partners  of  the  late  firm  of  Simmons,  Hays  &  Co.,  for 
that  whereas  the  said  defendants,  together  with  one  Aus- 
tin J.  Stewart,  whom  they  have  survived  by  and  under  the 
name,  style  and  firm  of  "Simmons,  Hays  &  Co.,''  made 
the  several  promises  and  assumptions  upon  which  judg- 
ment was  rendered  against  them.  Upon  the  coming  in  of 
the  garnishee's  answer,  it  was  proven  by  the  confession  of 
two  of  the  defendants,  and  not  controverted  in  argument, 
that  the  members  of  the  copartnership  doing  business  at 
Geneva,  Alabama,  under  the  style  and  firm  of  Simmons, 
Stewart  &  Co.,  were  the  identical  persons  carrying  on 
their  business  under  the  style  of  Simmons,  Hays  &  Co.  at 
Elba,  Alabama,  and  the  copy  of  the  note  filed  as  the  cause 
of  action  with  the  plaintiff's  declaration,  upon  which  judg- 
ment was  rendered  against  the  defendants,  describes  them 
in  its  body  as  of  Elba,  State  of  Alabama. 

Upon  this  state  of  facts  the  plaintiffs  moved  for  judg- 


752  '      SUPREME  COUBT. 


Lathrop  &  Wilkinson  vs.  Snell. — Opinion  of  Court. 

ment  against  the  garnishee  Snell,  which  was  refused  and 
the  garnishment  dismissed  by  the  court  below.  To  which 
ruling  the  plaintiffs  excepted  and  bring  their  appeal. 

It  appears  to  us  that  the  defendants  must  be  regarded  as 
co-partners,  doing  business  both  at  Elba  and  Geneva  and 
designating  their  different  mercantile  houses  merely  by  a 
transposition  of  names.  The  parties  were  the  same,  and 
the  debts  due  to  either  house  were  their  common  property. 
There  was  as  perfect  an  identity  of  interest  and  liability 
in  both  houses  as  if  the  business  had  all  been  done  at  one 
counter.  The  fact  that  the  name  or  style  under  which 
their  business  was  transacted  in  the  separate  houses  was 
diilerent,  when  the  parties  in  interest  were  the  same,  can 
make  no  difference  in  their  legal  rights  or  liabilities.  The 
debt  of  Snell  was  due  to  the  defendants  in  their  co-part- 
nership character,  and  to  them  only.  The  plaintiffs  had 
the  unquestionable  right  to  subject  it  by  process  of  gar- 
nisliment  to  the  payment  of  their  debt. 

The  authorities  relied  on  by  the  defendants  are  all  cases 
wliere  the  separate  interest  of  one  partner  in  a  firm  was 
sought  to  be  subjected  to  a  debt  for  which  his  co-partners 
were  not  liable,  and  they  show  very  clearly  that  such  in- 
terest consists  only  in  whatever  share  may  remain  to  such 
partner  after  tlie  co-partnership  accounts  are  taken.  Tlie 
case  here  presented  is  entirely  different  and  does  not  in- 
volve questions  affecting  the  equities  arising  between  co- 
partners themselves  or  the  separate  creditors  of  one  of 
them. 

The  judgment  must  be  reversed  with  costs  and  the  case 
remanded,  with  directions  to  enter  judgment  against  tlie 
garnishee. 


INDEX 

TO  SIXTH  VOLUME  OF  FLORIDA  REPORTS 


ABATEMENT. 

The  fallore  to  Join  a  defendant  as  joint  contractor  or  partner  ii  only  pleada- 
ble in  abatement  and  cannot  be  taken  advantage  of  as  matter  of  variance  at 
tbe  trial.    Hurly's  ex'or  vs.  Roche,  746. 

ACCOUNT. 

Entries  in  the  account  book  of  a  shop-keeper  excluded  as  evidence  where 
the  proof  was  that  they  were  made  in  two,  three  and  sometimes  four  days 
after  the  transaction.  They  should  have  been  made  on  the  same  day  or  the 
day   after. 

No  objection  that  they  were  transcribed  from  a  slate. 

The  charges  should  be  definite,  stating  the  quantity  and  kind  of  the  article 
and  price,  and  not  accumulate  and  confound  prices  of  different  articles. 
Grady  vs.  Thigpin.  adm'r,  668. 

The  statute  of  1854,  as  to  the  admission  of  shop  books  and  other  accounts 
in  evidence  construed.  Held,  to  adopt  the  liberal  principle  of  the  American 
courts  with  their  restrictions,  that  it  is  not  confined  to  merchants  ;  that  the 
entries  to  be  admitted  must  be  originally  made  or  contemporaneous  with, 
the  transaction  ;  that  the  book  must  appear  to  be  fairly  kept,  and  free  from 
erasures  and  interlineations,  and  the  party  make  affidavit  that  the  articles 
were  delivered  and  the  labor  and  services  actually  performed ;  that  the  en- 
tries were  made  at  or  about  the  time  of  the  transactions  and  are  the  original 
entries  and  that  the  charges  have  not  been  paid.  Hooker  vs.  Johnson,  730. 

When  an  account  is  presented  to  a  party,  according  to  the  recollection  of  a 
witness,  for  over  three  hundred  dollars,  which  defendant  promised  to  pay, 
the  jury  should  be  instructed  to  find  to  the  extent  of  the  sum  admitted. 
Hurly's  ex'or  vs.  Roche,  746. 

AGENT. 

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


754  INDEX. 

AGENT—  (ConUnued.) 

He  stands  in  the  character  of  a  disinterested  and  indifferent  witness  be- 
tween the  parties  in  all  ordinary  cases. 

ff  the  plaintiff  recovers  on  his  agency  when  in  fact  he  wasnot  a^nUbntliad 
assumed  an  agency  which  could  only  be  established  by  his  own  evidence,  he 
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. 

A-gents  are  witnesses,  and  in  many  cases  they  are  so  iae  necessitate,  ercnk 
where  they  may  be  intersted. 

The  exception  being  founded  upon  considerati<m  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. 

^here  the  agent  has  direct  interest  in  the  event  of  a  suit  relating  to  a  coo- 
tract  made  by  him  independently  of  his  acts  as  agent,  he  is  not  a  competent 
witness  for  his  principal  in  regard  to  sucu  contract  Croom  vs.  Noll.  52. 

AGREEMENT. 

Where  there  is  an  express  agreement  on  the  part  of  the  stockholder  to  pty 
for  the  shares  of  stock  allotted  to  him, upon  default  of  such  payment  be  msy 
be  proceeded  against  by  action  at  the  suit  of  the  corporation,notw1thatandtaf 
the  Charter  may  provide  for  the  forfeiture  or  sale  of  the  shares  of  delinquents 
Barbee  vs.  Jacksonville  and  Alligator  Plank  R.  Co.,   262. 

ANSWER — {Sec   Evidence.) 

APPEALS. 

Appeals  may  be  taken  from  the  Justice's  Court  to  the  Circuit  Court  and 
tried  by  the  latter  agreeably  to  the  Constitution.  Exparte  Henderson,  279. 

The  Supreme  Court  has  no  authority  to  entertain  an  appeal  from  a  Judg- 
ment rendered  in  a  Justice's  Court.  Otoway  vs.  Devall,  302 ;  HalUday 
vs.  Jacksonville  and  Alligator  Plank  R.  Co.,  303. 

The  Supreme  Court  cannot  entertain  an  appeal  or  writ  of  error  in  s 
case  at  law,  until  after  a  final  judgment  McKinnon  vs.  McCollum.  376. 

The  provision  of  the  statute  which  prescribes  the  time  within  which 
appeals  from  the  Justices'  Court  to  the  Circuit  Court  may  be  taken.  ha< 
reference  to  the  adjournment  of  the  court,  and  not  to  the  date  of  the  ren- 
dition of  the  judgment. 

Where  the  record  furnishes  no  evidence  at  what  time  the  court  adjourned, 
the  presumption  of  law  is  that  the  justice,  in  approving  the  appeal  bond,  did 


INDEX.  755 

APPEAL—  ( Continued. ) 

bis  dnty.  and  that  the  same  was  perfected  within  the  time  prescribed  by  the 
statute.  In  the  absence  of  proof  to  the  contrary,  the  legal  presumption  al- 
ways is  that  the  officer  has  acted  strictly  within  the  line  of  his  duty. 


It  is  not  a  compliance  with  the  requisition  of  the  statute  to  merely  pray  the 
appeal  within  the  three  days.  It  must  be  perfected  within  that  time  by  the 
actual  payment  of  the  costs  and  the  tender  of  the  appeal  bond.  Summer- 
lin  vs.  Tyler,  718. 

ASSIONMEXT. 

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

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

In  an  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  vests 
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. 

• 

A  deed  of  assignment  is  to  be  construed  by  the  res  gestae,  and  thus  courts 
are  permitted  to  look  to  the  circumstances  and  motives  which  led  to  its  exe- 
cution, and  the  objects  to  be  accomplished.  Bellamy  vs.  Bellamy's  Adm*r. 
02. 

ATTACHMENT. 

The  provision  contained  in  the  4th  paragraph  of  the  3rd  Section  of  the 
Act  of  1834,  (Thomp.  Dig.,  370.)  which  requires  that  "the  evidence  shall 
be  confined  strictly  and  exclusively  to  the  state  of  facts  alleged  in  the  plain- 
tiff's affidavit,  as  they  existed  at  the  time  of  Issuing  the  attachment**  has  re- 
ference only  to  caseM  pending  at  the  time  of  the  passage  of  the  act. 

The  decision  In  the  case  of  Kennedy  vs.  Mitchell,  (4  Florida  R.  457.)  which 
is  an  adjudication  upon  the  proviso  contained  in  the  5th  paragraph  of  the 
name  Kertion,  referred  to  and  approved. 

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  hail"  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. 

A  debtor  may  by  his  declarations  of  Intention,  or  avowal  of  de8ign,in  regard 


756  INDEX. 

ATTACHMENT-—  ( Continued. ) 

to  the  fraudulent  disposal  of  his  property,  bring  himself  as  effectually  onder 
the  operation  of  the  statute,  as  by  the  commission  of  any  overt  act,  either 
consummated  or  in  progress  of  consummation. 

It  is  a  safe  rule  to  be  adopted  in  respect  to  the  admission  of  evidence  on  the 
trial  of  the  issue  of  fraud  or  no  frauds  arising  under  the  attachment  lav, 
that  the  evidence  whether  consisting  of  avert  acts,  or  mere  declaraticms  of 
intention,shall  not  have  transpired  at  so  remote  a  period  as  to  prevent  their 
becoming  a  part  of  the  res  gestae,  and  the  determination  of  this,  must  be 
left  to  the  sound  discretion  of  the  Judge,  presiding  at  the  trial  of  the  isroe. 
Hardee  vs.  Langford,  13. 

ATTORNEY'S  LIEN. 

The  statute  regulating  "commissions  for  collecting**  between  attorneys 
and  clients,  relates  only  to  per  centage  for  collecting.  For  other  services  a 
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.**  between 
attorney  and  client,and  constitutes  a  Ii6ii,whlch  should  be  enforced  under  the 
same  rules  of  law  as  In  England,  where  those  fees  and  coats  are  taxable 
so  far  as  consistent  with  onr  practice. 

The  right  of  set-off  prevails  in  general  cases,  so  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  lt.gal  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- 
ered for  the  costs  of  that  particular  litigation.  Carter  vs.  Bennett.  214. 

AVERMENT. 

All  averments  In  a  declaration  which  need  not  be  made,  or  proved  when 
made,  may  be  stricken  out  or  disregarded  in  the  proof,  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  as  laid.     Burritt  vs.  Doggett,  332. 

BILL  OF  EXCEPTIONS. 

miess  the  testimony  In  the  case  is  brought  before  the  Supreme  Court  by  a 
bill  of  exceptions,  it  connot  regard  it. 

The  bill  of  exceptions  is  given  by  the  statute  of  Westm..  13  Ed.  I.,  Chap. 
31. 

It  ought  to  be  upon  some  point  of  law  arising  upon  the  facts. 


INDEX.  757 

BILL  OF  EXCEPTIONS— (7ofiM«Mf«<i. 

It  l8  not  to  draw  the  whole  matter  into  examination  again  ;  it  la  onlj  for  a 
aingle  point,   and  the   truth  of  it  can  never  be  doubted  after  it  is  sealed. 

When  there  ia  no  bill  of  exceptions  to  show  on  what  ground  the  court  de- 
cided, it  will  be  presumed  that  it  decided  correctly. 

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.  Bailey  vs. 
Clark,  516. 

BOND. 

It  is  not  necessary  that  the  bond  in  an  action  of  re- 
pleyin,  should  contain  a  description  of  the  property,  but  the  affida- 
vit must  describe  it. 

• 

Statutory  bonds  will,  in  general,  be  sustained  as  voluntary  bonds, 
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  oppression, 
colore  officii.  Branch  vs.  Branch,  314. 

BOUNDARY. 

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. 

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  out  by  Commissioners  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. 

It  ia  not  proper  for  the  court  to  charge  the  jury  that  circumstantial  evi- 
dence tending  to  show  a  protMtbility  that  a  survey  covered  the  land  in  dis- 
pute, is  sufficient  to  found  their  verdict. 

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  t>e  impossible  to  prove 
the  existence  of  the  primitive  land  marks.  Doggett  vs.  Wiley.  482. 

CERTIORARI. 

Under  the  latitude  given  in  the  proviso,  to  the  second  section  of 
the  fifth  article  of  the  Constitution,  the  Supreme  Court  has  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.  Halllday  vs.  Jack 
sonville  and  Alligator  Plank  R.  Co.,  304. 


758  INDEX. 

CIRCUIT  COURTS.  (See  Jubisdiction.) 

CONSTITUTION. 


The  act  of  the  General  Assembly,  Incorporatiiig  the  Jacksonville  &  Alllbat«r 
Plank  Road  Company,  is  not  in  conflict  with  nor  does  it  contravene  either 
the  24th  Section  of  the  Ist  Article,  or  the  4th  Section  of  the  13th  Article 
of  the  Constitution  of  the  State.  Barbee  vs.  Jacksonville  and  Alligator 
Plank  R.  Co.,  262. 


The  grant  of  one  power  by  the  Constitution  is  not  necessarily  exdoslTe  of 
another  power. 


The  trial  of  an  appeal  case  by  the  Circuit  Court,  is  rather  the  exercise  of 
original  than  appellate  Jurisdiction,  but  whether  original  or  appellate  tht 
exercise  of  the  power  is  not  in  conflict  with  the  Constitution  of  the  State. 
Exparte  Henderson,  279. 


The  act  of  1845  which  restricts  the  jurisdiction  of  the  Supreme  Court  to 
the  entertainment  of  "causes  brought  by  appeal  or  writ  of  Error  from 
the  several  Circuit  Courts,  when  the  matter  in  controversy  exceeds  la 
amount  or  value  fifty  dollars*'  is  compatible  with  the  provisions  of  the 
constitution,  and  that  court  is  not  authorised  to  take  or  exercise  jurisdic- 
tion of  a  cause  In  which  the  matter  in  controversy  is  t>elow  that  Umit. 


The  several  acts  of  the  General  Assembly  granting  an  appeal  from 
the  Judgment  of  a  Justice  of  the  Peace,  to  the  Circuit  Court  do  not  contra- 
vene any  provision  of  the  Constitution  and  are  imperative  upon  the  coorti 
Anderson  vs.  Brown.  209. 


Cnder  our  State  Constitution  it  Is  the  appropriate  function  of  the  Judicial 
department  to  decide  whether  a  statute  of  the  Legislature,  be  or  be  not  con- 
stitutional ;  but  in  deference  to  a  co-ordinate  branch  of  the  Government  It 
ought  never  to  nullify  a  statute,  except  In  a  case  free  from  doubt. 


In  proceeding  to  define  and  determine  the  constitutional  power  of  the  Lefris- 
latlve  department,  it  is  proper  to  note  the  characteristic  difference  whidi 
marks  our  Federal  and  State  Constitutions.  Whilst  the  former  contains  onlj 
specific  grants  of  powers,  the  latter  makes  a  general  grant  of  all  the  political 
power  of  the  people,  restrained  only  by  specific  reservations.  Hence  in  de- 
termining upon  the  validity  of  statutes  the  acts  of  Congress  are  to  be  coa- 
strued  with  greater  stringency,  than  the  acts  passed  by  our  General  Assembly, 

No  certain  rule  can  be  prescribed  by  which  to  determine  when  a  work  of  in- 
ternal improvement  shall  be  deemed  to  be  embraced  within  the  meaning  of 
the  phrase,  "County  purpose"  as  the  same  is  used  in  the  4tb  clause  of  the 
8th  article  of  the  State  Constitution.  Neither  the  locality  of  the  work,  nor 


INDBX.  759 

CONSTITUTION—  ( Continued. ) 

the  anticipated  benefit  to  be  derived  from  it.  Is  of  Ittelf  a  certain  teat ;  bat  as 
fumiehlng  a  general  rule,  the  concurrence  of  the  two  would  teem  to  be  re- 
quired. 

Whether  the  2d  section  of  8th  article  of  the  State  Constitution  Imposes  an 
imperative  restriction  upon  the  taxing  power  of  the  General  Assembly,  and 
such  an  one  as  can  be  enforced  by  the  Judicial  department,  or  whether  it  is 
only  discretionary :     Queref 

The  act  of  subscription  to  the  capital  stock  of  the  Pensacola  and  Georgia 
Railroad  Company,  by  the  Board  of  County  Commissioners  of  Leon  County, 
is  within  the  meaning  of  the  phrase  "County  purposes'*  as  used  In  the  Con- 
stitution of  the  State. 

« 
The  word  "necessary"  occurring  in  the  2d  clause  of  the  8th  article  of  the 

Constitution  and  by  implication  transferred  to  the  4tn  clause  of  the  same 

article,  when  applied  to  the  taxing  power  of  the  county  authorities  is  to  be 

talcen  rather  as  an  indication  of  a  grant  of  ditcretion,  to  be  exercised  within 

the  appropriate  limits  of  their  general  power,  than  as  a  restraint  upon  that 

power. 

The  provision  of  the  act,  which  required  that  a  subscription  of  the  stock  of 
the  Railroad  Company,  by  the  County  Commissioners,  should  depend  upon 
a  vote  of  the  qualified  voters  of  the  county,  was  not  a  delegation  to  the  peo- 
ple of  legislative  powers,  but  only  a  legitimate  mode  of  4i>talning  an  expres- 
sion of  the  will  of  the  constituent,  as  a  guide  for  the  action  of  the  repre- 
sentative. 

writ  of  Error  from  the  several  Circuit  Courts,  when  the  matter  in  controver- 
rhe  provision  contained  in  the  act,  that  each  taxpayer  should  receive  a  re- 
muneration In  the  shape  of  Stock  In  the  Railroad  Company,  equivalent  to  the 
amount  of  his  tax  assessment.  Is  not  In  conflict  with  either  the  1st  or  24th 
clauses  of  our  "Declaration  of  Rights." 

The  provision  of  the  act  which  authorizes  the  counties  to  issue  Bonds  for 
the  purpose  of  raising  money  to  pay  for  stock  to  be  purchased,  does  not 
contravene  the  letter  or  spirit  of  the  13th  clause  of  the  13th  article  of  the 
Constitution,  which  prohibits  the  General  Assembly  from  pledging  the  faith 
and  credit  of  the  State  to  raise  funds  in  aid  of  Corporations. 

The  22d  section  of  the  act  of  the  General  Assembly  of  1855,  entitled  "An 
act  to  provide  for  and  encourage  a  liberal  system  of  Internal  Improvements 
In  this  State,"  declared  to  be  constitutional.  Cotten  et  al,  vs.  Co.  Commis- 
sioners, 610. 


760  INDEX. 

CONTRACT. 

The  general  principle  adopted  by  civilised  nations  ls,thftt  the  natnre^TaUdlty 
and  interpretation  of  contracts,  are  to  be  governed  by  th^lc^  loci  ot  the  cwm- 
try  where  the  contracts  are  made  or  are  to  be  performed  ;  but  the  remedies 
are  to  be  governed  by  the  lex  fori.  Perry  vs.  Lewis,  555. 

The  law  of  the  place  where  a  contract  is  made  is,  generally  speaking,  the 
law  by  which  the  contract  is  to  be  expounded,  but  it  is  nevertheless,  the 
right  of  this  government  to  prescribe  rules  and  regulations  for  the  protec- 
tion and  enjoyment  of  all  property  which  shall  be  brought  within  its  terri- 
torial jurisdiction. 

The  Sanction  of  the  Act  of  1823,with  reference  to  fraudulent  conveyance* 
(Tham{P^ig.,  217,  c,  11,  §1,)  requires,  that  where  the  po9ca9ion  of  personal 
p^d^^  te  one  person  and  the  use  in  another,  in  order  to  protect  it 
against  liability  for  the  debts  or  contracts  for  the  person  in  possession,  tbe 
deed  by  which  it  is  held  must  be  recorded  within  five  years.  Whether  or  not 
tills  4^(|9P  is  applicable  to  contracts  made  out  of  this  State :  Qneret 
Croweil.et  al.  vs.  Skipper,  580. 

CONVe¥JlNCE. 

It  is  essential  to  the  conveyance  of  real  estate  that  there  should  be  soow 
description  of  the  land.  Bellamy  vs.  Bellamy,  Adm.,  62. 

CORPORATION. 

Whether  a  corporation  can  maintain  an  action  upon  an  implied  promise  fbr 
the  collection  of  assessments  made  on  the  shares  of  stock  owned  by  a  corpon* 
tor,  and  whether  the  mere  svibacription  for  stock,  raises  an  implied  assnmp- 
sion,   quere? 

Where  there  is  an  express  agreement  on  the  part  of  the  stockholder  to 
pay  for  the  Rhares  of  stock  allotted  to  him,  upon  default  of  such  pay- 
ment, he  may  be  proceeded  against  by  acHon  at  the  suit  of  the  corpors- 
tlon  notwithstanding  the  Charter  may  provide  for  the  forfeiture  or  stl« 
of  the  shares  of  delinquents.  Barbee  vs.  Jacksonville  Plank  Road  Com- 
pany, 262. 

I 
CRIMINAL  LAW. —  {See  Indictment.) 

The  degree  of  strictness  spoken  of  in  the  books  as  applicable  to  criminal 

jurisprudence.  Is  Buch  as  is  comformable  to  rational  principles,   and  not 

Ruch  as  is  calculated  to  defeat  the  ends  of  the  law.  Cherry  vs.  The  State, 

679. 

DECREE. 

A  decree  in  favor  of  the  husband  of  a  daughter  against  the  father  and 
prantor  of  property  settled  to  the  use  of  grantor  and  wife  during  their 
natural  lives.  Is  conclusive  as  to  the  life  interest,  right  of  possession  and 
power  of  alienation  of  the  grantor.  Sanderson  vs.  Jones,  430. 

DEMURRER. 

If  the  defendant  demur  to  the  whole  declaration  and  any  one  of  the  counts 


INDEX.  761 

DEMURRER— (Con^nued.) 
be  good,  the  plaintiff  shall  have  Judgment  upon  the  count 

The  failure  to  flle  a  "bill  of  particulars/'  cannot  be  taken  advantage  of 
by  demurrer  to  the  declaration.  Barbee  ys.  Jacksonville  &  Alligator  Plank 
Road  Company,  2G2. 

Where  a  plea  is  required  to  be  verified  by  an  affidavit,  the  failure  to 

append  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.  Hagler  vs.  Mercer,  342. 

A  demurrer  opens  all  the  pleadings,  and  the  court  should  give  Judgment 
against  the  party  who  committed  the  first  error  (in  substance)  in  pleading. 

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.  Hooker  vs.  Gallagher,  351. 

On  overruling  a  demurrer,  if  the  demurrant  resorts  to  ulterior  pleadings 
on  the  same  point,  the  demurrer  is  waived.  Bailey  vs.  Clark,  516. 

DISCRETION. 

It  may  be  laid  down  as  a  safe  rule,  that  every  presumption  la  to  be  in  favor  of 
the  ruling  of  the  court  below,  where  the  same  is  made  in  reference  to  any 
point, which  at  common  law, was  a  matter  purely  otdiscretion  ;  to  induce  the 
appellate  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  asking 
its  interference.  Ahren  &  Hyer  vs.  Willis,  359. 

EJECTMENT. 

Until  the  condition  of  a  mortgage  be  broken  and  the  same  be  actually 
foreclosed,  the  mortgagor  and  all  claiming  under  him  may  maintain  an 
ejectment  to  recover  the  possession  of  the  mortgaged  premises.  Brown  vs. 
Snell,  741.  .   J 

EQUITY — {Bee  Injixction.) 

In  equity,  the  general  maxim  of  pari  delicto,  &c.,  does  not  always  prevail ; 
circumstances  of  the  particular  case,  often  form  exceptions,  and  where  it  is 
necessary  relief  will  be  granted.     Bellamy  vs.  Bellamy,  Adm.,  62. 

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 


762  INDBX. 

EQUITY— <flfc«  Injunction) — (Conthiuea,) 

same  rule  prevails  in  courts  of  law  and  equity,  but  there  are  instances  form- 
ing exceptions  to  this  general  rule  in  which,  under  peculiar  ctrcnmstancei, 
equity  will  entertain  a  second  suit  for  the  same  cause  of  action  and  the 
purpose. 


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 
plaintiffs  but  another  person,  or  that  the  plalntiflft  should  so  Into  a  coort  el 
equity,  though  that  instruction  was  erroneous.   The  only  way  of  avoidiag 

such  an  instruction  are  by  taking  a  non-suit  before  the  Jury  retired,  or  ob- 
taining a  reversal  of  the  Judgment. 


If  a  party  Intends  to  rely  upon  a  matter  as  constituting  a  ground  for  relief 
in  equity,  it  ought  to  be  sent  up  in  the  bill ;  if  not  so  set  up,  though  it  ap- 
pears by  the  evidence  in  the  record  to  have  been  proved,  it  will  not  be  coa- 
sidered  at  the  hearing.  Thornton  et  al.  vs.  Campbell's  Ex*or,  546. 

There  is  no  rule  of  law  or  principle  of  equity  which  prevents  a  first  mort- 
gagee from  purchasing  the  mortgaged  property  when  sold  at  sherilTs  sale  «a- 
der   a  judgment  prior  to  the  mortgage  :  and,ln  such  case,  he  takes  abaolute  tide. 


When  a  surplus  remains  after  the  satisfaction  of  a  prior  execution  under 
which  property  mortgaged  has  been  sold,  equity  will  regard  the  fund  as  8id>- 
stituted  for  the  land,  and  pursue  and  distribute  the  same  amongst  aubseqocst 
mortgagees  according  to  their  priorities. 


The  court  will  not  consider  the  validity  of  a  bargain  and  sale  of  real  estate 
between  parties  who  make  no  objection  to  the  transfer,  at  the  instance  of  an- 
other, whose  rights  whose  rights  are  not  affected  thereby.  Harriscm  vs. 
Roberts,   711. 

ERROR. 

ft  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. 
Hooker  vs.  Gallagher,  351. 


In  a  suit  by  executors  or  admini8trators,who  have  received  their  letters  tes- 
tamentary or  of  administration  in  another  State,  it  is  error  to  instruct  the 
jury  that  the  plaintiffs  cannot  recover  without  producing  the  probate  of  the 
will  or  letters  of  administration  duly  obtained.  &c.,  and  properly  authenti- 
cated.  Sullivan  et  al.  ex'ors  vs.   Honaker,  372. 

It  is  error  to  submit  an  issue  upon  one  plea  to  the  jury,  while  other  pleas 


INDEX.  763 

ERROR—  ( Continued. ) 

remain  undisposed  of.  when  It  appears  that  they  were  not  abandoned. 
McKlnnon  vs.  McCollum,  376. 

The  court  cannot  assume  the  concluHiveness  of  the  testimony  of  any  wit- 
ness, and  It  is  error  so  to  charge. 

The  court  will  not  regard  an  assignment  of  error  not  connected  with  or 
necessary  to  the  merits  of  the  caw*. 

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. Doggett  vs.  Willey.  482. 

EVIDENCE 

The  provision  contained  in  the  4th  paragraph  of  the  3rd  section  of  the 
Act  of  1834,  (Thomp.  Dig.,  370.)  which  requires  that  **the  evidence  shall 
be  confined  strictly  and  exclusively  to  the  state  of  facts  alleged  in  the 
plalntifTs  affidavit,  as  they  existed  at  the  time  of  issuing  the  attachment,** 
has  reference  only  to  cases  pending  at  the  time  of  the  passage  of  the  act. 

ft  Is  a  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  declaration  of 
Intention,  shall  not  have  transpired  at  so  remote  a  period  as  to  prevent 
their  becoming  a  part  of  the  res  gestae,  and  the  determination  of  this 
must  be  left  to  the  sound  discretion  of  the  Judge,  presiding  at  the  trial 
of  the  issue.     Hardee  vs.  Lanford.  13. 

The  answer  of  a  defendant  is  only  evidence  as  to  facts,  to  which  other  testi- 
mony could  be  received,and  it  will  not  be  admitted  to  show  that  the  Intent  and 
meaning  of  the  parties  to  a  written  agreement  was  contrary  to  what  appears 
on  the  face  of  it.    Carter  vs.  Bennett,  214. 

When  a  plaintiff  declares  in  assumpsit  on  a  promissory  note,  he  cannot 
properly  be  permitted  to  give  in  evidence,  a  sealed  instrument  as  the  founda- 
tion of  his  action.  Hooker  vs.  Gallagher,  351. 

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. 

Reputation  and  heresay,  of  themselves,  are  not  evidence ;  yet.  In  con- 
nection with  other  evidence,  they  may  be  entitled  to  respect  In  cases 
of  boundary  after  great  length  of  time,  and  when  it  may  be  impossible  to 
prove  the  existence  of  the  primitive  land  marks.    Doggett  vs.  Willey,  482. . 

Where  a  defendant,  who  is  sued  in  equity  by  an  administrator  for  the  re- 


764  INDEX. 

EVIDENCE—  ( Cfmtinued. ) 


covery  of  a  slave  alleged  to  belong  to  the  estate  of  bis  intestate,  sets  op  aa 
atoolute  title  to  the  same  and  relies  upon  a  bill  of  sale  from  the  intestate  di- 
rectly to  himself  to  support  his  claim,  if  the  other  evidence  in  the  cause 
shows  that  the  slave  was  in  possession  of  the  intestate  at  the  time  of  his 
death,  and  had  so  continued  from  the  date  of  the  bill  of  sale,  and  that  s 
stranger  took  possession  of  her  immediately  after  that  event,  and  there  is  no 
evidence  to  negative  the  idea  that  the  defendant  obtained  his  possessioa 
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.  McDongall,  adm'or, 
vs.  Van  Brunt,  570. 


In  case  of  a  charge  of  poisoning,chemical  tests  and  analysis  of  the  contents 
of  the  stomach  and  bowels  are  essential  to  the  ascertainment  of  the  tmtb, 
and  should  be  resorted  to  in  all  cases  where  there  is  no  direct  proof  of  the 
act. 


Symptoms,  of  themselves,  without  other  circumstances,  are  not  reliable, 
and  cannot  be  regarded  as  conclusive  evidence  of  guilt. 


A  new  trial  will  be  granted  where  there  is  evidence  of  symptoms  alone,sad 
those  imperfect,  no  tests  to  ascertain  the  presence  of  poison,none  discovered 
or  traced  to  the  prisoner  and  no  motive  or  other  fact  proved  to  induce  tbe 
presumption  of  guilt.  Joe  vs.  Tbe  State,  591. 

Entries  in  the  account  book  of  a  shop-keeper  excluded  as  evidence  wherT 
the  proof  was  that  they  were  made  in  two,  three  and  sometimes  four 
days  after  the  transaction.  They  should  have  been  made  on  the  same 
day  or  the  day  after. 

No  objection  that  they  were  transcribed  from  a  slate. 


The  charges  should  be  definite,  stating  the  quantity  and  kind  of  the 
article  and  price,  and  not  accumulate  and  confound  prices  of  different 
articles.  Grady  vs.  Thigpln,  adm'or,  668. 


The  fttatute  of  1854.  as  to  the  admission  of  shop  books  and  other  ac- 
counts In  evidence  construed  :  Held,  to  adopt  the  liberal  principle  of  the 
American  courts  with  their  restrictions,  that  it  is  not  confined  to  mer- 
chants ;  that  the  entries  to  be  admlted  must  be  originally  made  or  con- 
temporaneous with  the  transaction ;  that  the  tK>ok  must  appear  to  be 
fairly  kept,  and  free  from  erasures  and  Interlineations,  and  the  ptrtj 
make  affidavit  that  the  articles  were  delivered  and  the  labor  and  services 
actually  performed  ;  that  the  entries  were  made  at  or  about  the  time  of 
the  transactions,  and  are  the  original  entries,  and  that  the  charges  have 


INDEX.  765 

EVIDENCE—  ( Continued. ) 

not  been  paid. 

As  a  general  rule  evidence  must  be  given  to  the  jury  before  the  case  Is  sub- 
mitted and  the  Judge  gives  bis  charge,  yet  there  are  exceptions,  and  the 
omission  to  read  the  obligation  declared  on,  which  Is  admitted  by  the  plead- 
ings, is  one  of  these.  Hooker  vs.  Johnson,  730. 

When  an  acount  is  presented  to  a  party,  according  to  the  recollection 
of  a  witness,  for  over  three  hundred  dollars,  which  defendant  promised  to 
pay,  the  Jury  should  be  Instructed  to  find  to  the  extent  of  the  sum  admit- 
ted. Hurly*s  ex*or  vs.  Roche. 

EXCEPTIONS. 

When  no  exception  is  taken  to  the  charge  of  the  court  below,  In  a  crim- 
inal case,  and  a  motion  was  made  for  an  arrest  of  Judgment  and  for  a 
new  trial  without  alleging  it  as  a  ground  for  such  motion  there,  it  is  too 
late  to  make  the  objection  in  the  Supreme  Court.  Francis,  a  slave,  vs. 
The  State,  306. 

EXECUTORS  AND  ADMINISTRATORS. 

If  an  executor  or  administrator  receive  assets  of  the  estate  sufficient  to 
satisfy  his  debt  due  from  the  testator  or  Intestate,  this,  at  common  law, 
operates  an  extinguishment  of  his  demand. 

But  the  provision  of  the  statute,  which  takes  away  the  right  of  retainer 
in  cases  of  insolvency,  so  far  modifies  this  doctrine  as  to  confine  its  op- 
eration exclusively  to  solvent  estates. 

When  a  defendant  sets  up  as  a  bar  to  the  action  that  the  plaintiff  In 
the  character  of  executor  had  received  assets  sufficient  to  satisfy  his  debt, 
it  is  neither  necessary  nor  proper  that  the  plea  should  allege  that  the 
estate  was  solvent :  but  if  an  insolvency  is  relied  upon  to  bring  the  case 
within  the  operation  of  the  statute,  the  fact  should  be  distinctly 
averred  in  the  replication  by  way  of  avoidance.  Sealey  vs.  Thomas,  ex*r, 
Ac..  25. 

Cpon  the  death  of  the  testator  or  <ntestate,  if  any  injury  is  afterwards 
done  to  his  goods  and  chattels,  the  executor  or  administrator  may  bring 
an  action  for  damages  for  the  tort,  and  under  the  circumstances,  he  has 
his  option  either  to  sue  in  his  representative  capacity  and  declare  as  ex- 
ecutor or  administrator,  or  to  bring  the  action  in  his  own  name  and  in 
his  individual  character. 

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  bind- 
ing the  estate. 

Whether  such  a  bond  is  necessary  where  an  executor  or  administrator 
sues  in  such  a  case,  in  his  representative  character  as  executor  or  ad- 


766  INDEX. 

EXECUTORS  AND  ADMINISTRATORS— (Cont«»Mic<f.) 
ministrator :  Queref 

In  a  suit  by  an  executor  or  administrator,  in  his  representatiTe  charac- 
ter, he  must  describe  himself  and  malce  his  claim  as  administrator  or  ex- 
ecutor only ;  describing  himself  executor  or  administrator  is  mere  dcMcrip- 
tio  peraonae. 

The  statute  declares  that  the  plaintiff  in  replevin,  or  some  other  com- 
petent person  in  Ma  behalf,  shall  execute  the  bond  with  good  and  suffi- 
cient security ;  it  is  not  contemplated  by  the  latter  proTlaion  that  the 
persons  signing  the  bond  should  bind  anybody  but  themaelTea.  Whether, 
therefor,  an  executor  or  administrator  can,  even  In  such  an  action  as  this, 
by  proceeding  as  such  executor  or  administrator,  and  executing  a  bond  aa 
such,  bind  the  estate:  Queref     Branch  vs.  Branch,  314. 

In  a  suit  by  executors  or  administrators,  who  have  obtained  their  letter* 
testamentary  or  of  administration  in  another  State,  it  is  error  to  instruct 
the  Jury  that  the  plaintiffs  cannot  recover  without  producing  the  probate 
of  the  will,  or  letters  of  administration  duly  obtained,  &c.,  and  properly 
authenticated. 

Whether  such  letters  have  been  duly  obtained  or  not,  is  a  queatioa 
to  be  settled  in  another  stage  of  the  case. 

Whether  they  are  properly  authenticated  or  not,  is  a  question  for  the 
court  not  the  Jury. 

Every  executor  or  administrator  when  he  sues  as  «mcA,  should  make 
profert  of  his  letters  testamentary  or  of  administration. 

The  defendant  by  craving  over  of  the  letters  and  putting  in  the  proper 
plea,  may  avail  himself  of  the  want  of  title  of  such  plaintiff  to  sue. 

By  pleading  the  general  issue  only,  he  waived  all  objections  to  such  let- 
ters, and  admits  the  plalntllTs  right  to  sue  aa  auch  executor  or  adminis- 
trator. 

The  omission  of  the  profert  when  necessary,  is  now  aided,  unless  the 
defendant  demurs  specially  for  the  defect.  Sullivan  et  al.,  ex'rs.  vs.  Hon- 
acker,  372. 

EXTINGUISHMENT. 

The  doctrine  that  a  "personal  action  once  In  suspense  by  the  act  of  the 
party  entitled  to  it,  is  always  extinguished,"— questioned. 

If  an  executor  or  administrator  receive  assets  of  the  estate,saflicient  to  sat- 
isfy his  debt  due  from  the  festator  or  intestate,  this,  at  common  lato,  op- 
erates  an  estinguishment  of  his  demand.  Sealey  vs.  Thomas  Ac,  25. 


INDEX.  767 

FRAUD  AND  FRAUDULENT  CONVEYANCES. 

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

/L  deed  made  with  the  purpose  or  Intent  to  hinder,  delay  or  defraud  credi- 
tors, la  binding  as  between  the  parties  ;  but  as  to  creditors  it  is  deemed  to 
have  no  lawful  existence.  Bellamy  vs.  Bellamy's  Adm.,  62. 

The  3rd  Section  of  the  Act  of  1823,  with  reference  to  fraudulent  con- 
yeyances,  (Thomp.  Dig.  217,  c.  11,  §1,)  requires  that  where  the  postettion 
of  personal  property  is  in  one  person  and  use  in  another,  in  order  to  pro- 
tect it  from  liability  for  the  debts  or  contracts  of  the  person  in  possession, 
the  deed  by  which  it  is  held  must  be 'recorded  within  flye  years.  Whether 
or  not  this  section  is  applicable  to  contracts  made  out  of  this  State.  Queref 
Crowell  et  al.  vs.  Skipper.  680. 

GAMING. — (Bee  Indictment.) 

GRAND  JURY. —  {See  /ndictmbnt.) 

HUSBAND    AND    WIFE. 

The  husband  is  entitled  during  his  life  to  the  income  of  property  settled 
upon  himself  and  wife  Jointly,  as  acompensation  for  his  liability  to  maintain 
her ;  he  is  entitled  to  the  whole  of  the  profits  of  the  trust  estate  when  sup- 
porting the  expenses  of  the  household.  Sanderson  ts.  Jones,  430. 

INDICTMENT. 


In  an  indictment  for  gaming,  it  is  unnecessary  to  state  the  name  of  ths 
game  played  or  bet  upon. 


An  allegation  that  it  was  at  "a  certain  game  of  cards*'  is  sufficient. 

The  name  of  the  person  with  whom  the  bet  was  made  must  l>e  stated,  or 
it  must  be  alleged  that  such  person  was  to  the  Jurors  unknown. 

The  common  law  declares  that  an  indictment  for  an  offence  against  the 
statute.must  with  certalntpr  and  precision  charge  the  defendant  to  have  com* 
mitted  or  omitted.the  acts  under  the  circumstances,  and  with  the  intent  men- 
tioned in  the  statute. 


The  place  was  sufficiently  stated,  by  saying  (after  stating  the  yenue)    in  ths 
County  of  Leon,  and  at  a  certain  game  of  cards.  Groner  ts.  The  State,  39. 
The  indictment  of  a  slave  need  not  state  the  name  of  the  owner  of  such 
slave. 


A  slave  indicted  for  an  assault  and  battery,  not  alleged  to  have  been 
committed  upon  a  white  person,  should  be  tried  under  the  6th  section  of 
the  Act  of  November  21st,  1828,  entitled  "An  Act  relating  to  crimes  and 


768  INDEX. 

INDICTMENT— (  Con  Wfiv€d. ) 

misdemeanors  committed  by  slaves,  free  Negroes  and  Malattoes.*' 


When  the  record  contains  a  copy  of  the  indictment  endorsed  by  the  Fore- 
man of  the  Grand  Jury,  A  True  Bill,  and  a  plea  of  not  guilty  has  been 
put  In,  a  trial  had,  a  verdict  of  guilty  found,  and  motion  for  an  arrest 
of  Judgment  made  and  argued,  without  an  objection  that  it  does  not 
appear  by  the  record  that  the  Grand  Jury  returned  the  Bill  into  Court 
endorsed  by  the  Foreman,  *'A  True  Bilh"  the  objection  cannot  b«  made 
in  the  Supreme  Court  on  appeal  in  a  case  not  capital.  Francis,  a  slave, 
vs.  The  SUte.  306. 


When  an  indictment  has  upon  it  the  indorsement  of  the  title  of  the  case 
together  with  a  comprehensive  designation  of  the  oflTence  charged*  this  court 
will,  in  view  of  the  practice  which  is  known  to  prevail  in  the  circuit  coarta^ln 
regard  to  matters  of  this  kind,  view  such  indorsement  as  the  act  of  the  prose- 
cuting officer,  whose  duty  it  is  to  prepare  the  bills ;  and  the  words  of  "A  true 
bill,"  which  is  the  act  of  the  Grand  Jury,  will  be  taken  to  refer  to  the  offence 
as  charged  in  the  body  of  the  indictment,  and  not  to  that  designated  In  the  in- 
dorsement. 


Such  indorsement  of  the  prosecuting  offlcer.is  to  be  received  only  ma  a  mem- 
orandum for  the  convenience  of  reference,  and  to  distinguish  the  paper  from 
others  of  a  similar  character.  It  eonatltatet  bo  part  of  tho  tndtetBent-tt  Im- 
parts no  vitality,  nor  does  it  give  any  validity  to  the  instmment. 


The  Grand  Jury  have  the  right  to  qualify  and  limit  their  flndingrs  to  any  ex- 
tent they  may  deem  proper,  under  the  circumstances  and  facts  which  may  be 
developed  in  the  investigation  of  the  case ;  but  such  qualification  or  limitation 
must  not  be  presumed.  The  finding  must  be  taken  to  be  general  and  referable 
solely  to  the  offence  aa  charged  in  the  body  of  the  indictment,  unless  it  can  be 
reasonably  inferred  from  the  collocation  of  the  words,  that  such  quallflcatioB 
or  limitation  were  intended  to  be  made. 


it  will  not  be  permitted  to  distort  the  finding  of  the  Jury,  by  forcibly 
connecting  the  words  of  the  finding  with  the  incomplete  description  of  the 
offence,  to  be  found  in  the  usual  indorsement  of  the  prosecuting  attorney. 


Every  portion  of  the  record  that  comes  up  from  the  Circuit  court  is  entitled 
to  equal  credit ;  and  if  implicit  credence  is  to  be  given  to  that  portion 
which  sets  out  the  finding  of  the  Jury,  as  record^  in  the  minutes  of  the 
court,  the  same  degree  of  credence  is  to  be  given  to  that  portion  which  con- 
nects the  finding  with,  and  makes  it  applicable  to  the  particular  bill  of  Indict- 


^ 


INDEX.  769 

I NDICTMBNT—  ( ConUnued. ) 


ment  set  out  in  the  record.  Such  an  identity  between  the  record  of  the  find- 
ing and  the  particular  bill  of  indictment,  to  which  it  is  made  to  apply,  as 
will  leave  no  room  for  mistake  or  doubt,  is  all  that  is  necessary.  Cherry 
vs.  The  State,  679. 


INJUNCTION 


An  Injunction  will  be  granted  upon  motion  and  vHthout  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* 
Tided  for  In  the  statute  regulating  chancery  proceedings,  is  limited  and  res- 
tricted to  application  *'to  stay  proceedings  at  law." 


When  the  answer  fully  denies  all  the  circumstances  upon  which  the  E!quity 
of  the  bill  is  founded,  it  is  the  usual  practice  to  dissolve  the  injunction.  But 
there  Is  no  inflemihle  rule  to  this  effect  for  the  granting  or  continuing  of  the 
injunction,  must  always  rest  in  the  sound  discretion  of  the  court,  to  be  gov- 
erned by  the  nature  of  the  case.  Allen  vs.  Hawley,  142. 


Carter  vs.  Bennett,  214. 


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. 

It  Is  not  proper  to  dissolve  an  Injunction  or  dismiss  a  bill  for  want  of  a  suit- 
blebond  for  costs  or  for  insufficient  notice  or  non-payment  of  costs  ;  the  court 
should  correct  the  error  if  possible,  without  resort  to  this  alternative. 
Gamble  vs.  Campbell,  347. 

''Equity  will  enjoin  the  collection  of  the  purchase  money  of  land,  on  the 
ground  of  defect  of  title,  after  the  vendee  has  possession  under  a  conveyance 
from  the  vendor  with  general  warranty,  if  the  title  is  either  prosecuted  or 
threatened,  or  if  the  purchaser  can  shew  clearly  that  the  title  is  defective.'* 

On  a  motion  for  injunctionafter  answer,the  court  will  look  only  to  the  facts 
that  are  responsive  to  the  bill,  and  will  presume  against  defendant  when  he 
has  not  answered  when  he  ought  to  have  answered. 

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. 

On  a  motion  for  an  injunction,  the  court  will  not  commit  Itself  to  points  or 
questions  that  may  arise  at  the  final  hearing.  Yonge  &  Bryan  vs.  McCor- 
mick,  368. 


770  INDEX. 

INJUNCTION—  (Con«nttcd. ) 

The  principle  affirmed  in  the  case  of  Carter  ys.  Bennett,  et  ai.  6  Flor.  R.  236 
Tiz :  that  when  all  the  equities  of  the  bill  are  denied  by  the  answer,  it  is  not 
of  course  to  dissolve  the  injunction.  The  granting  and  continiiing  of  Injunc- 
tions rest  in  the  discretion  of  the  court  to  be  governed  by  the  nature  and 
circumstances  of  the  case — cited  and  approved. 

When  the  facts.circumstances  and  law  of  the  case  presented  In  the  bill  and 
answer  afford  a  strong  presumtion  that  the  cpmplainant  may  be  entitled  to 
relief  upon  the.flnal  hearing,  and  In  the  mean  time  might  suffer  Irremediable 
injury, the  injunction  should  be  continued  to  that  period  notwithstanding  the 
general  denial  of  the  equities  of  the  bill,  in  the  answer.  Linton  tb.  Den- 
ham  &  Palmer,  633. 

INSTRUCTIONS. 

The  instructions  of  the  court  to  the  Jury  should  be  confined  to  the  issoe 
made  by  the  pleadings,  even  although  this  be  Immaterial.  Hooker  vs.  John- 
son, 730. 

IRREGULARITY. 

Applications  to  set  aside  proceedings  for  mere  Irregularity,  should 
be  made  as  early  as  possible.  Branch  vs.  Branch,  314. 

JUDGMENT. 

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. 

Whore  promissory  notes  are  offered  in  evidence  and  ruled  out  by  the  court 
and  not  offered  again,  and  where  the  mortgage  given  to  secure  said  notes  is 
also  offered  in  evidence,  but  in  consequence  of  said  notes  not  being  In  evi- 
dence, the  said  mortgage  and  assignment  thereof,  were  not  and  could  not 
have  been  fully  considered  and  determined  by  the  Jury,  and  there  wert 
other  issues  before  the  Jury,  a  Judgment  rendered  under  such  circum- 
stances should  not  be  considered  as  a  final  and  conclusive  adjudication  in  re- 
spect to  said  mortgage  and  the  ownership  of  said  mortgage.  Carter  vs. 
Bennett,  214. 

It  Is  error  for  the  court  to  give  a  Judgment  by  default,  as  for  want 
of  plea  when  there  is  a  good  plea  In  the  case  upon  which  issue  has  been 
Joined.     Hooker  vs.   Gallagher,   351. 

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 
evidence.     Doggett  vs.  Willey,  482. 


INDEX,  771 

JUDGMENT—  ( Continued. ) 


Every  fair  intendment  is  to  be  made  in  support  of  the  Judgment  below. 
Bailey  ts.   Clark,  516. 


The  lien  of  a  Judgment  at  law  attaches  to  and  binds  the  real  estate  of  the 
defendant  therein,  acquired  subsequent  to  the  rendition  thereof,  llarri- 
son  vs.  Roberts,  711. 

Where  a  clerk  had  failed  to  enter  Judgment  on  an  order  of  court  to 
that  effect  at  one  term,  it  is  proper  to  have  it  done  thereafter  at  the  next 
term.  Hagler  vs.  Mercer,  721. 


JURISDICTION. 

In  cases  where  it  is  doubtful  whether  courts  of  law  can  give  relief, 
courts  of  chancery  will  entertain  Jurisdiction.     Carter  vs.   Bennett,   214. 
The  Circuit  Courts  are  not  confined  wholly  to  cases  of  original  Juris- 
diction. 


They  have  for  the  most  part  the  power  of  the  court  uf  King's  Bench  in 
England. 

A  mandamus  will  lie  from  this  court  to  the  Corcuit  Court  in  case  of 
refusal  to  entertain  Jurisdiction  when  directed  by  law. 

The  Jurisdiction  of  the  Circuit  Courts  and  Supreme  Courts  compared. 

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.  Ew  parte  Henderson,  270. 

The  act  of  1845,  which  restricts  the  Jurisdiction  of  the  Supreme 
Court  to  the  entertainment  of  ''causes  brought  by  appeal  or  writ  of  error 
from  the  several  Circuit  Courts,  when  the  matter  in  controversy  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 
Jurisdiction  of  a  cause  in  which  the  matter  in  controversy  is  below  that 
limit 

Where  the  Judge  of  a  Circuit  Court  shall  refuse  to  entertain  Jurisdiction  of 
an  appeal  taken  from  a  Justice's  Court,  a  writ  of  Mandamut,  issuing  from 
the  Supreme  Court,is  the  appropriate  process  to  compel  the  exercise  of  that 
Jurisdiction.     Anderson  vs.  Brown,  200. 

Under  the  latitude  given  in  the  proviso  to  the  second  section  of  the 
fifth  article  of  the  Constitution,  the  Supreme  Court  has  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  pre- 


772  INDBX. 

JUBISDICTION— (ConMntfed.) 

sented  Is  such  an  one  as  requires  the  interposition  of  the  court  in  order 
that  Justice  may  be  done.  Halllday  ts.  JacksonyiUe  and  Alligator  PIk. 
B.  Co.,  304. 


A  second  suit  will  not  be  allowed  when  it  appears  that  a  Judgment 
whether  by  confession,  upon  demurrer  or  yerdlct,  and  still  in  force,  has 
been  rendered  in  a  former  suit,  by  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  forming  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. 


It  is  not  sufficient  ground  to  entertain  a  bill  in  equity  that  on  a 
trial  of  the  same  question  in  a  suit  at  law,  upon  an  issue  inyolring  the 
merits,  the  Jury  gave  a  verdict  for  the  defendant,  because  of  an  instruc- 
tion by  the  court  that  if  they  believed  the  evidence,  the  right  to  sue  at 
law  was  not  In  the  plaintiffs  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  is  by  talcing  a  nonsuit  be- 
fore the  Jury  retired,  or  obtaining  a  reversal  of  the  Judgment. 


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  appears  by  the  evidence  in  the  record  to  have  been  proved,  it 
will  not  be  con8i(j|ered  at  the  hearing. 

When  a  Court  of  Equity  has  concurrent  Jurisdiction  with  a  Court  of  Law. 
of  a  question  which  has  beon  already  tried  at  law.  the  Court  of  Equity 
will  not  entertain  a  suit  to  try  the  same  qaastton,  beeaue  of  tome  mmttv 
of  which  the  plaintiff  could  have  availed  himself  had  he  first  sued  in  equity. 

Thornton  et  al.  vs.  rampbeH'a  Ex*or,  546. 


The  Jurisdiction  of  the  Circuit  Court  by  the  Constitution  embraces 
all  matters,  civil  and  criminal,  and  therefore  extends  to  and  embraces  a 
suit  on  a  note  for  forty  dollars.     McMillan  &  Campbell  va.  Savage,  748. 


.7URY. 

During  tho  trial  of  any  case  not  capital,  the  court  may,  In  the  exercise 
of  a  ftound  <ti/>rre1ion,  permit  the  Jury  under  the  proper  charge,  to  se- 
parate.    Francis,  a  slave,  vs.  The  State,  306. 


LIMITATIONS.   STATUTE  OF. 

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  this  State,  so  as  to  complete  a  statutory 


INDEX.  773 

LIMITATIONS,  STATUTE  OF— (Continued.) 

bar  of  the  right  of  action. 

The  rule  Is  that  a  foreign  statute  of  limitations  is  inoperative  except  in 
cases  where  it  not  merely  professes  to  bar  the  remedy,  but  goes  directly 
to  the  extinguishment  of  the  debt,  claim  or  right.    Perry  vs.  Lewis,  565. 

MANDAMUS. 

A  mandamus  will  lie  from  thlg  court  to  the  Circuit  Court  in  case  of 
refusal  to  entertain  Jurisdiction  when  directed  by  law.  Ex-parte  Hen- 
derson, 270. 

Where  the  Judge  of  a  Circuit  Court  shall  refuse  to  entertain  Jurisdic- 
tion of  An  appeal  taken  from  a  Justice's  Court,  a  writ  of  mandamu9. 
Issuing  from  the  Supreme  Court,  is  the  appropriate  process  to  compel 
the  exercise  of  that  Jurisdiction.     Anderson  vs.  Brown,  209. 

MARRIAGE  SETTLEMENT. 

Where  a  marriage  settlement  Is  made  by  husband  and  wife  in  trust  to  the 
use  and  behoof  of  husband  and  wife  during  their  natural  lives,  it  la  by 
no  means  clear  that  a  separate  estate  in  created  for  the  wife. 

The  husband  is  entitled  during  his  life  to  the  income  of  property 
settled  upon  himself  and  wife  Jointly,  as  a  compensation  for  his  liability 
to  maintain  her ;  he  Is  entitled  to  the  Whole  of  the  profits  of  the  trust 
estate  when  supporting  the  expenses  of  the  houshold. 

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.especiaily  where  there  Is  no-allegation  that  the  husband  has  not  prop- 
erty to  maintain  the  wife,  and  does  not  maintain  her.  Sanderson  vs. 
Jones,   430. 

MARRIED  WOMEN. 

^here  a  deed  of  gift  in  trust  for  the  separate  use  of  a  married  woman  was 
made  in  Alabama,  by  parties  living  thereat  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. 

f  n  a  deed  of  gift  of  property  to  the  separate  use  of  the  wife,  having  no  words 
of  restriction  or  direction  as  to  alienation.thepower  of  disposition  l8|  incident 
to  the  ownership,  and  she  may  dispose  of  it  as  if  she  were  a  feme  sole. 

The  English  and  New  York  rule  to  this  extent,  approved  and  adopted. 
51 


774  INDEX. 

MARRIED  WOMEN— (Con Wnned.) 

.V  married  woman  will  not  be  protected  or  suatained  in  a  course  of  doable 


dealing.calcalated  to  inyolye  an  innocent  purchaser,  and  throw  upon  him  the 
loss  to  arise  from  improper  action  of  her  husband.  Maiben  et  al.  ts. 
Bobe,   381. 


MORTGAGE. 

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  most  al- 
so be  a  valuable  consideration. 


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


A  sale  of  mortgagee's  interest  under  execution  doea  not  confer  a  complete  title 
in  personally,  but  gives  the  mortgagee's  rights  subject  to  redemption  by  the 
mortgagor.    Gotten  vs.  Blocker  et  al.,  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. 


In  case  of  sale  by  a  prior  incumbrancer,  the  subsequent  incumbrancer 
can  only  complain  by  showing  fraud  in  the  sale,  or  that  the  property 
was  more  than  sufficient  to  pay  both  debts,  and  that  something  re- 
mains for  his  benefit.    Wilson  &  Herr  vs.   Hayward,   171. 


A  mortgage  executed  in  Georgria  on  slaves  and  real  estate  then  in  Ga..    and 
said  slaves  subsequently  removed  to  Fla.,  and  the  equity  of  redemption  there- 
in sold  at  a  reduced  value.under  an  agreement  that  they  are  purchased    "sub- 
ject  to  all  the  liabilities  against  them,  in  the  way  of  debt  either  by  note, 
judgment,  or  mortgage  in  the  State  of  Georgia,  as  the   property    of    the 
vendor  or  mortgagor,  the  vendor  only  warranting  the  same  against  himeelf 
and  his  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  re- 
turn of  said  slaves  within  the  Jurisdiction  of  the  court,  or   decree    a    person- 
al liability,  may  not  be  foreclosed  in  a  Court  of  Chancery  having  Jurisdiction 
in   this  State,  on  the  slaves,  as  if  they  were  in  Florida  within  the  Jurisdiction 
of  the  court,  without  embracing  the  real  estate  or  any  other  property  in 
Georgia,  included  in  said  mortgage,  and  forming  no  part  of  said  purchase ; 


INDEX.  775 

MORTG  AGE—  ( Cantinmed. ) 

but  any  trmnuictloii  or  acta  of  the  mortgafee  or  holder  of  the  mortgage,  In 
Georgia,  which  In  equity  and  good  conscience,  under  all  the  circumstances 
of  the  case,  should  be  a  set-off,  or  reduction,  or  credit  on  the  indebtedness 
of  the  mortgage,  will  enure  to  the  purchaser  of  the  equity  of  redemption. 
Carter  ts.  Bennett,  214. 

There  Is  no  rule  of  law  or  principle  of  equity  which  prevents  a  first 
mortgagee  from  purchasing  the  mortgaged  property  when  sold  at  sherllTs 
sale  under  a  judgment  prior  to  the  mortgage ;  and,  in  such  case,  he  takes 
absolute  title. 

*^*Wiien  a  surplus  remaing  after  the  satisfaction  of  a  prior  execution 
under  which  property  mortgaged  has  been  sold,  equity  will  regard  the 
fund  as  substituted  for  the  land,  and  pursue  and  distribute  the  same 
amongst  subsequent  mortgages  according  to  their  priorities.  Harrison 
vs.   Roberta,  711. 

ITntll  the  condition  of  a  mortgage  be  broken  and  the  same  be  ac- 
tually foreclosed,  the  mortgagor  and  all  claiming  under  him  may  main- 
tain an  ejectment  to  recover  the  possession  of  the  mortgaged  premises. 
Brown  vs.  Snell.  741. 

NEW  TRIAL. 

Bill  for  a  new  trial  not  contenanced,  and  never  should  be  entertained 
except  in  a  very  clear  case  of  fraud  or  injustice,  or  upon  newly  discover- 
ed evidence,  which  could  not  possibly  have  been  produced  at  the  first  trial. 
Carter  vs.  Bennett,  214. 

When  no  exception  is  taken  to  the  charge  of  the  court  below,  in  a 
criminal  case,  and  a  motion  was  made  for  an  arrest  of  Judgment  and 
for  a  new  trial,  without  alleging  it  as  a  ground  for  such  motion  there, 
it  is  too  late  to  make  the  objection  in  the  Supreme  Court.  Frances,  a 
slave,  vs.  The  State,  306. 

A  new  trial  will  be  granted  where  there  is  evidence  of  symptoms 
alone,  and  those  imperfect,  no  tests  to  ascertain  the  presence  of  poison, 
none  discovered  or  traced  to  the  prisoner  and  motive  or  other  fact  proved 
to  induce  the  presumption  of  guilt.    Joe  vs.  The  State,  591. 

NOTICE. 

Notice  to  the  creditors  to  file  their  claims  does  not  sustain  a  bar 
under  the  statute.  The  statute  should  be  strictly  pursued  and  ita  terms 
complied  with.    Cotten  vs.  Blocker  et  al.,  1. 

OATH. 

The  oath  of  office  of  Commissioner  of  roads  and  bridges  need  not 
be  administered  by  a  Justice  of  the  Peace,  but  may  be  administered  by 
certain  other  officers. 

Whether  if  Road  and   Bridge  Commissionera  were  not  sworn  at  alL 


776  INDEX. 

\ 

OATR-^  (Continued.) 

their  acts  woyld,  for  that  cause,  be  null  and  void ;    Queref    McKinnon  vs. 
McCollum,   376. 

OFFICER. 

A  Clerk  of  the  Circuit  Court  may  i^^point  a  deputy. 

A  ministerial  office  may  be  exercised  by -deputy. 

A  deputy   may,   in  general,  do  any  act  that  his  principal   could  do, 
except  to  make  a  deputy.    McKinnon  ts.  McCoUum,  376. 

PARTNERS  AND  PARTNERSHIP. 

A«  a  general  rule,  the  several  ownen  of  a  merchant  Fesael  or  steamboat, 
hold  their  respective  interests  therein,  as  tenants  in  common  and  not  as  co- 
partnert,  and  consequently  are  to  be  governed  by  the  rules  of  law,  applicabls 
to  that  species  of  tenure.  But  to  this  rule  there  may  be  emoeptiona,  either 
growing  out  of  the  express  agreement  of  the  partles,or  to  be  Implied  from  the 
nature  and  character  of  the  business  or  adventure  in  which  they  may  be  en- 
gaged. 

Where  partnership  funds  are  Invested  in  the  purchase  of  a  steamboat.  In 
the  absence  of  any  positive  stipulations  between  the  part  owners  to  the  con- 
trary, they  will  hold  their  respective  interests  In  ttriot  partnersMp  atfd  the 
property  will  be  subject  to  the  law  of  partnership.  The  case  of  "Loubat  vs. 
Nourse,"   (5  Florida  Rep.,  350,)   referred  to  and  approved. 

Whenever  the  intervention  of  a  Court  of  Equity  becomes  necessary.in  conse- 
quence of  dissentions  or  disagreements  between  the  copartners,  to  eflTect  a 
settlement  or  closing  of  the  partnership  concern8.upon  bill  filed  by  any  of  the 
partners,8bowing  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. 

Each  of  the  co  partners  has  a  specific  lien  on  the  partnership  8tock,not  only 
for  the  amount  of  bis  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. 

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. 

A  Court  ofEquity  has  no  at^thority  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- 


INDEX.  777 

PARTNERS  AND  PARTNERSHIP>-(Con/<iitied.) 

ship.    Allen  vs.  Hawley,  142. 


Where  the  Mime  indlylduals  do  businefls  under  different  names  or  styles  In  two 
separate  houses,  the  parties  in  interest  being  the  same,  their  rights  and  lia- 
bilities as  co-partners  will  not  be  affected  thexeby  and  they  will  be  regarded 
as  constituting  one  and  the  same  firm  ;  and,  In  such  cases,  a  creditor  whose 
debt  was  created  in  the  name  of  and  with  one  house,  may  proceed  by 
garnishment  to  subject  to  his  claim  a  debt  contracted  in  favor  of  such 
copartners  in  the  name  of  the  other  house.  Lathrop  ft  Wilkinson  ts. 
Snell,    750. 


PLR\S  AND  PLEADING. 

When  a  defendant  sets  up  as  a  bar  to  the  action  that  the  plaintiff 
in  the  character  of  executor  had  received  assets  sufficient  to  satisfy  his 
debt,  it  Is  neither  necessary  nor  proper  that  the  plea  should  allege  that 
the  estate  was  solvent :  but  if  an  insolvency  is  relied  upon  to  bring  the 
case  within  the  operation  of  the  statute,  the  fact  should  be  distinctly 
averred  In  the  replication  by  way  of  avoidance. 


It  is  the  first  essential  of  good  pleading  that  it  be  characterized  by 
certaintu,  and  this  quality  Is  especially  requisite  in  the  replication.  Sea- 
ley  vs.  Thomas,  ez'r,  25. 


Where  a  plea  Is  required  to  be  verified  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. 

.The   twenty-fourth  section  of  the  act  of  November  23d,   (Thomp.   Dig., 
331.)  Is  restricted  to  pleas  alleging  a  trant  of  consideration,  and  does  not  ap- 
ply where  the  allegation  is  a  failure  of  consideration. 

And  even  where  the  trant  of  consideration  is  pleaded,  the  only  effect  of  that 
section  is  to  change  the  burthen  of  proof.  The  defendant  may  still  plead  a 
want  of  consideration.wlthout  vertifying  his  plea  by  an  affidavit ;  but  in  such 
case,  he  takes  upon  himself  the  onut  probandi,  as  he  formerly  did  at  common 
law.    Hagler  vs.  Mercer.  342. 

T'nder  the  operation  of  "Reg,  Gen.'*  (Hill.  Term,  4  W.  4,>  which 
have  been  adopted  for  the  regulation  of  the  practice  in  the  Circuit  Courts, 
where  a  defendant  Intended  to  rely  upon  either  a  want  of  consideration,  or 
a  failure,  or  illegality  of  consideration  as  a  defence  to  the  action,  he  shall  set 
forth  in  his  plea  so  much  of  the  facts  or  circumstances  connected  with  the 


778  INDBX. 

PLEAS  AND  PLEADING— (CowMniied.) 

transaction,  aa  may  be  necessary  to  apprise  the  plaintiff  fully,  of  the  specific 
nature  and  character  of  the  defence  which  he  will  be  required  to  meet 
Ahren  k  Hyer  vs.  Willis,  359. 

Every  executor  or  administrator,  when  he  sues  as  Buch,  should  make 
profert  of  his  letters  testamentary  or  of  administration. 

The  defendant,  by  craving  oyer  of  the  letters  and  putting  in  the  pro- 
per plea,  may  avail  himself  of  the  want  of  title  of  such  plaintiff  to  sue. 

By  pleading  the  general  issue  only,  he  waives  all  objection  to  such 
letters,  and  admits  the  plaintiff's  right  to  sue  aa  such  executor  or  ad- 
ministrator. .... 

The  omission  of  the  profert  when  necessary  is  now  aided,  unless  the 
defendant  demurs  specially  for  tbe  defect  Sullivan  et  al.,  ex'ora  vs. 
Honacker,   372. 

/t  is  error  to  submit  an  issue  upon  one  plea  to  the  Jury  while  other 
pleas  remain  undisposed  of,  when  it  appears  that  they  were  not  abandon- 
ed.   MKlnnon  vs.   McCoUum,  376. 

A  declaration  upon  such  a  note  by  a  holder,  other  than  the  payee, 
is  defective  in  substance  if  it  does  not  allege  that  the  note  was  endorsed. 
Hooker  vs.  Gallagher,  351. 

PRACTICE. 

The  rule  that  allowed  a  party  who  offered  no  evidence  the  closing 
argument,  has  been  repealed. 

Ab  has  also  the  rule  which  allowed  a  default  for  want  of  a  plea.  &c., 
to  be  entered  In  vacation.    Bailey  vs.  Clark.  516. 

The  appearance  by  attorney  of  a  party  summoned  as  a  garnishee,  cures 
any  defect  in  the  service  of  the  writ  of  garnishment.  Mercer  vs.  Booby. 
723. 

From  the  terms  of  the  statute  providing  for  the  commencement  of  suits  fh 

the  court  of  common  law.  It  is  clearly  deduclble  that  the  debt  or  damages 

*  sued  for,  as  set  forth  in  the  praecipe,,  ought  to  be  inser^t^  in  the    summons 

ad  r9spondendum  ;  but  the  omission  by  the  clerk  to  do  so  does  not  render  the 

summons  void. 

Where  an  amendment  in  the  original  process  is  allowable,  the  Supreme 
Court,  upon  error  brought,  will  give  to  the  party  entitled  thereto  the  same 
benefit  of  the  amendment  as  though  it  had  been  actually  made. 

A  defect  or  Irregularity  which  is  apparent  upon  the  face  of  the  original  writ 
or  summons,  (if  the  same  Is  not  carried  into  the  declaration)  is  not  the  sub- 
ject of  plea  in  abatement.  It  can  be  taken  advantage  of  only  by  motion  to 


INDEX.  779 

PRACTICE—  ( ConUnued. ) 
quash. 

Only  matters  extrinsic  or  dehors  the  writ  or  summons  can  be  so  plead- 
ed.    Campbell  vs.  Chaffee  et  al.,  724. 

PRESUMITION. 

It  may  be  laid  down  as  a  safe  rule,  that  every  presumption  is  to  be  in  favor, 
of  the  ruling  of  the  court  below,  where  the  same  is  made  in  reference 
to  any  point  which  at  common  law  was  a  matter  purely  of  discretion;  to 
induce  the  appellate  court  to  control  that  discretion,  it  must  be  made 
manifest  that  injustice  or  injury  has  l>een  done  to  the  rights  or  interests 
of  the  party  asking  its  interference.    Abren  ft  Hyer,  vs.  Willis,  359. 

PRINCIPAL  AND  AGENT. 

The  instruction  of  the  Circuit  Judge  in  this  case  was,  that  the  prin- 
cipal, the  person  hiring  a  negro  slave,  was  responsible  for  his  loss 
through  carelessneBs  or  misconduct  of  his  agent ;  again,  that  if  an  agent 
hears  that  a  negro  cannot  swim,  and  gives  an  order  which  no  prudent 
man  with  this  knowledge  would  give,  he  is  responsible  for  the  injury 
rcHultlng  from  such  improper  act ;  held  that  this  ruling  was  right.  Kelley, 
Timanus  &  Co.,  vs.  Wallace,  600. 

PROCESS. 

If  the  style  of  process  is  "The  State  of  Florida,"  it  is  sufficient.  Branch 
vs.  Branch,  314. 

PROFERT. — Bee  Pleas  and  Pleading.) 

PROMISSORY   NOTES. 

The  endorse  of  an  over-due  promissory  note  takes  it  as  against  the  maker, 
with  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  collateral  matters. 

This  doctrine  rests  upon  the  law  merchant  which  forms  a  part  of  the 
common  law.  The  statute  of  set  off  does  not  apply  to  it.  Kilcrease  vs. 
White,  45. 

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  <fi  Ma  own 
name. 

A  declaration  upon  such  a  note  by  a  holder,  other  than  the  payee, 
is  defective  in  substance  if  it  does  not  allege  that  the  note  was  endorsed. 
Hooker  vs.  Gallagher,  351. 

PUBLIC  PROPERTY. 

That  the  Pensacola  and  Georgia  Railroad  Company,  is  a  private  cor- 
poration, affords  no  valid  reason  why  the  shares  of  its  capital  stock,  pur- 
chased by  and  on  behalf  of  the  county  of  Leon,  should  not  be  deemed 
to  be  the  public  property  of  the  citisens  of  the  county.    Gotten  et  al.  vs. 
County  Commissioners,  610. 


78Q  INDEX. 

BECEIVER. 

Wheni^yer  the  iDterventlon  of  a  court  of  equity  becomes  necessary,  in 
consequence  of  dissentions  or  disagreements  between  the  co-partners  to 
eflTect  a  settlement  or  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  agreement  of  partnership,  a  Re- 
ceiver will  be  appointed  as  a  matter  of  course. 

A  court  of  equity  has  no  authority  to  appoint  a  Receiver  with  a  view 
permanently  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  dis- 
solving the  partnership. 

If  a  Receiver  either  exceed  or  abuse  his  authority,  as  defined  by  the 
terms  of  the  order  making  the  appointment,  and  injury  or  damage  there- 
by 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.  Allen  vs.  Hawley,  142. 

REHEARING. 

The  court  will  act  upon  a  petition  for  a  rehearing  where  it  was  pre- 
sented ln>tlme,  although  two  of  the  Judges  who  sat  on  the  hearing  of  the 
cause  have,  since  the  decree  was  made,  gone  out  of  office.  Lines  vs.  Dar- 
den,  37. 

REMAINDER-MEN. 

If  the  remainder-men,  the  children  provided  for  after  the  termination  of  the 
life  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.  Sanderson  vs.  Jones,  340. 

REPLEVIN. 

It  is  not  necessary  that  the  bond,  in  an  action  of  replevin,  should  con- 
tain a  description  of  the  property,  but  the  affidavit  must  describe  it 

The  value  of  the  property  as  stated  In  the  declaration,  is  not  the  cri- 
terion of  the  value  of  the  property ;  It  Is  the  estimated  vaki6  (by  the 
clerk,  whose  duty  it  is  to  approve  the  bond.)  at  the  time  the  bond  is 
given,  and  the  plaintiff,  by  stating  in  his  declaration  a  higher  value,  can- 
not invalidate  the  bond. 

If  the  Clerk  In  approving  the  bond  add  to  his  name  the  word  Clerk 
only,  it  Is  sufficient  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  is  the  same  into  which  the  writ  Is 
returnable. 

The  court  may  order  a  plurles  writ.  In  an  action  of  replevin  under  our 
statute,  or  the  plaintiff  may   (In  a  proper  case)   cause  one  to  be  issued 


INDEX.  781 

REPLEVIN—  ( Continued, ) 

without  an  order  of  the  court. 

By  suing  out  an  alias  writ,  the  plaintiff  waives  (for  the  time  being, 
at  least,)  his  right  under  the  statute  to  declare  in  trover  or  trespass. 
Branch  vs.  Branch,  314. 

RES  GESTAE. 

A  deed  of  assignment  Is  to  be  construed  by  the  res  gettae,  and  thus 
Courts  are  permitted  to  look  to  the  circumstances  and  motives  which  led 
to  its  execution,  and  the  objects  to  be  accomplished.  Bellamy  vs.  Bella- 
my's Adm'r,  62. 

SALE. 

A  sale  of  mortgagee's  Interest  under  execution  does  not  confer  a  com- 
plete title  in  personalty,  but  gives  the  mortgagee's  rights  subject  to  re- 
demption by  the  mortgagor.  Cotton  vs.  Blocker,  et  al.,  1. 
by  the  mortgagor.   Cotton  vs.  Blocker,  et  al.,  1. 

SET-OFF. —  (Rce  Pbomissort  Note.) 

SLiVVE. —  {Sec  Indictmrxt.) 

The  Instruction  of  the  Circuit  Judge  in  this  case  was,  that  the  principal,  the 
person  hiring  a  negro  slave,  was  responsible  for  his  loss  through  careless- 
ness or  misconduct  of  his  agent :  again,  that  if  an  agent  hears  that  a  negro 
cannot  swim,  and  gives  an  order  which  no  prudent  man  with  his  knowledge 
would  give,  he  is  responsible  for  the  injury  resulting  from  such  improper 
act :  held  that  this  ruling  was  right. 

From  the  evidonce.  It  appeared  that  the  netrro,  lost  by  drowning  in  the  ser- 
vice of  the  defendants,  was  a  green  hand  at  the  mill — afraid  of  water — was 
near  drowning  before,  having  been  rescued  by  others.a  fact  known  to  the  su* 
perlntendent :  that  the  employment  he  was  put  to  was  dangerous  and  requir- 
ing great  expertness  in  getting  logs  out  of  s  pen  in  the  water  of  the  depth 
of  from  two  and  a  half  to  eight  and  ten  feet  deep :  Held,  under  these 
facts,  thst  the  order  was  illegal  and  improper,  and  defendants  liable 
for  the  loss.    Kelly.  Timanus  &  Co.  vs.  Wallace.  690. 

STATt'TE 

It  is  a  general  rule  to  be  observed  In  the  construction  of  statutes,  that 
where  they  provide  extraordinary  remedies,  they  should  be  strictly  con- 
strued. But  In  view  of  the  fact  that  there  exists  no  provision  for  **iipecial 
haiV*  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.  Hardee  vs.  Langford,  13. 

STATUTORY  BAR. 

Notice  to  creditors  to  file  their  claims  does  not  sustain  a  bar  under 
the  statute.  The  statute  should  be  strictly  pursued  and  its  terms  com- 
plied with.    Cotten  vs.  Blocker  et  al.,  1. 


782  INDEX. 

TAX  SALE. 


Where  the  land  of  one  indiyldaal  Is  sold  by  the  Tax  Collector  to  pay 
the  taxes  due  upon  that  particular  tract,  together  with  the  taxes  due 
upon  other  lands  belonging  to  another  indlyidual,  the  sale  is  InTalid,  and 
the  deed  from  the  Tax  Collector  conveys  no  title.    Brown  vs.  Snell,  741. 

TRESPASS. 

Trespass,  quare  clauaum  fregit,  is  a  local  action  in  which  the  plaintiff  is 
required  to  prove  that  the  place  is  within  the  jurisdiction  of  the  Court,  and 
the  defendant  may  show  by  testimony  that  it  is  not  within  iL 

\  plea  that  a  difference  exists  between  the  States  of  Georgia  and  Florida  as 
to  whether  the  premises  He  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.  McMillan  vs. 
Lacy,  526. 


TRUST  AND  TRUSTEE. 


In  an  assignment  to  a  trustee  who  accepts  the  trust  and  enters  upon 
the  duties  thereof  for  the  use  of  certain  creditors,  the  legal  estate  passes 
and  vests  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. 

In  a  deed  of  trust,  wherein  after  specifying  certain  slaves  by  name  and  also 
enumerating  other  personal  property,  and  then  adding  a  general  clause,  vis  : 
"and  all  his  personal  effects  of  every  name^  nature  and  description,"  kc. 
Held  to  embrace  things  ejitsden  generis,  with  those  which  had  been  men- 
tioned 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  gctiae  favors  that  construction,  but  not  to  pass  real 
estate,  or  equity  of  redemption  In  land. 


[n  a  deed  of  assignment  to  a  trustee  conveying ''all  t/ke /ttturpcrotloM  crop 
made  on  said  plantation,'*  an  estate  is  conveyed  commensurate  with  tht 
trust ;  and  although  it  does  not  pass  the  equity  of  redemption  in  said  land, 
yet  it  is  fiduciary  llcense.Iease  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. 

In  all  cases  where  a  purchase  has  been  made  by  a  trustee,  on  his  own  ac- 


INDBX.  783 

TRUST  AND  TRUSTEE— (CcmMnned.) 

count,  of  the  estmte  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,  and  particularly  where  there  are  inequitable  features  in 
the  transaction. 

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.    Bellamy  ts.  Bellamy's  adm'r,  62. 


The  trusts  Intended  by  the  courts  of  equity,  not  to  be  reached  or  af- 
fected by  the  statute  of  limitations  are  those  technical  and  continuing 
trusts  which  are  not  at  all  cognisable  at  law,  but  fall  within  the  proper, 
peculiar  and  exclusive  Jurisdiction  of  the  Court  of  Equity. 


A  person  purchasing  mortgaged  or  encumbered  slaves  at  a  very  reduced  price 
**9uhject  to  all  the  liabilities  that  are  against  them  in  the  way  of  debt,  eith- 
er  by  note,  judgment  or  mortgage,  as  the  property  of  the  mortgagor,  the 
mortgagor  only  warranting  the  same  as  against  hims^f  and  heirs"  and  the 
great  reduction  In  the  price  being  unexplained  must  be  considered  to  have 
purchased  only  the  equity  of  redemption  therein.  And  as  between  the  parties. 
Courts  of  Equity  will  consider  the  Justice,  equity  and  understanding  of  the 
purchase  to  be,  that  any  encumbrance  in  the  way  of  debt,  then  existing  a- 
gainst  said  slaves,  either  by  note,  judgment  or  mortgage,  as  the  property 
of  the  vendor,  were  to  be  met  and  paid  by  the  purchaser,  to  any  amount  not 
exceeding  the  value  of  the  slaves,  at  the  time  said  liability  shall  be  enforced : 
and  such  a  purchase  constitutes  a  constructive  trust  in  rem  in  favor  of  the 
owner  of  said  encumbrances  or  any  of  them,  such  as  Courts  of  Chancery  only 
will  enforce.    Carter  vs.  Bennett.  214. 


^hero  a  deed  of  gift  in  trust  for  the  separate  use  of  a  married  woman 
was  made  in  Alabama  by  parties  living  there  at  the  time  of  Its  execu- 
tion, the  laws  of  that  State  as  to  the  rights  of  the  parties  under  it,  as  ad- 
ministered by  her  Judical  tribunals,  form  the  rule  of  decision  of  the  case. 
Her  courts  having  adopted  the  English  rule  as  to  the  right  of  disposi- 
tion 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  right  of  the  parties.    Maiben  et  si.  vs.  Bobe,  381. 


Where  a  marriage  settlement  is  made  by  husband  and  wife  in  trust 
to  the  use  and  behoof  of  husband  and  wife  during  their  natural  lives, 
it  is  by  no  means  clear  that  a  separate  estate  in  created  for  the  wife. 


784  INDEX. 

TRUST  AND  TRUSTEE— (Co«Mnii€d.) 


The  husl^and  is  entitled  during  his  life  to  the  Income  of  property 
settled  upon  himself  and  wife.  Jointly,  as  a  compensation  for  his  liability 
to  maintain  her;  he  is  entitled  to  the  whole  of  the  profits  of  the  trust 
estate  when  supporting  the  expenses  of  the  household. 


Trusts  are  alienable,  and  a  husband  may  sell  and  dispose  of  his  lifft 
interest  in  such  property.    Sanderson  ts.  Jones,  430. 

USE  AND  OCCUPATION. 

When  in  an  action  for  use  and  occupation,  the  lot,  square,  town  and  county 
where  the  premises  are  situated,  are  set  out  in  the  declaration  ;  Held,  first, 
that  this  was  a  matter  of  description  and  must  be  prored  aa  laid;  Second, 
that  it  was  unnecessary  to  have  alleged  any  location  of  the  premises  :  Third, 
'that  if  it  had  appeared  to  have  been  the  intention  of  the  plaintiff  to  have 
made  the  averment  of  the  place  where  the  premises  w^re  situated,  refer  to 
the  venue,  or  if  It  was  doubtful,  whether  the  design  was  to  make  the  aver- 
ment matter  of  discription  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.  Burrett  vs.  Doggltt, 
332. 


VARIANCE. 

The  failure  to  Join  a  defendant  as  Joint  contractor  or  partner  is  only 
pleadable  in  abatement  and  cannot  be  taken  advantage  of  as  matter  of 
variance  at  the  trial.    Hurly's  ex'or  vs.  Roche,  746. 


VENDOR  AND  VENDEE. 

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. 


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  may  have  sold  them  without  rvcourac  ;  or 
he  may  have  a  release  from  the  purchaser.    Croom  vs.  Noll,  52. 

Equity  will  enjoin  the  collection  of  the  purchase  money  of  land,  on  the 
ground  of  defect  of  title,  after  the  vendee  has  possession  under  a  con- 
veyance from  the  vendor  with  general  warranty,  if  the  title  is  either 
prosecuted  or  threatened,  or  If  the  purchaser  can  shew  clearly  that  the 
title   Is  defective.    Yonge  &  Bryan  vs.    McCormick,   368. 


INDEX.  785 

WITNESS. 

Ad  agent  ig  a  competent  witness  to  proTe  his  own  anthorlty  if  it  be 
paroL  He  stands  in  the  character  of  a  disinterested  and  indilTerent  wit- 
ness between  the  parties  in  all  ordinary  cases. 

Agents  are  witnesses,  and  in  many  cases  they  are  so  ea  necetiBitate, 
even  where  they  may  be  interested. 

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

Where  the  agent  has  a  direct  interest  in  the  event  of  a  suit  relating 
to  a  contract  made  by  him  independently  of  his  act  as  agent,  he  is  not 
a  competent  witness  for  his  principal  ii^  regard  to  such  contract 

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,  or 
adducing  other  proof  to  show  that  fact. 

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

The  mode  of  provinp  the  intrrent  of  a  %citne98,  is  either  by  his  own 
examination  or  by  evidence  aliunde. 

When  the  objection  to  the  competency  of  the  witness  arises  from  his 
own  raeamination,  he  may  be  further  interrogated  to  facts  tending  to  re- 
move the  objection,  though  the  testimony  might,  on  other  grounds,  be  In- 
admissible. 

As  a  general  nile.  the  vendor  of  goods  having  possession  and  selling 
them  as  his  own.  is  held  bound  in  law  to  warrant  the  title,  and  there- 
fore, he  is  generally  not  a  competent  witness  for  the  vendee  in  support 
of  the  title.    Croom  vs.  Noll,  52. 

Where  a  witness  has  a  Joint  Interest  with  the  party  for  whom  he  is  called 
to  testify,  either  in  the  subject  matter  to  be  recovered  or  in  the  contract 
as  a  general  partner.  Joint  or  part  owner,  or  Joint  contractor,  by  which 
he  has  an  interst  In  the  very  thing  claimed  or  in  the  money  to  be  received, 
he  is  incompetent. 

Although  a  witness  has  answered  that  he  is  not  interested  in  the  result  of 
the  suit  pending,  this  does  not  prevent  a  further  examination  into  his  real 


786  INDEX. 

WITNESS—  ( Continued. ) 

situation  and  the  facts  of  the  case  as  to  his  interest.    Hooker  vs.  Jc^in- 
son,  730. 

WRIT. 

The  court  may  order  a  pluries  writ,  in  an  action  of  replerin  un- 
der our  statute,  or  the  plaintilf  may  (in  a  proper  case)  cause  one  to 
be  issued  without  an  order  of  the  Court. 

By  suing  out  an  alias  writ,  the  plaintiff  waires  (for  the  time  be- 
ing at  least,)  his  right  under  the  statute  to  declare  in  trover  or 
trespass.    Branch  ts.  Branch.  314. 


REPORTS 


OF 


CASES  ARGUED  AND  ADJUDGED 


IN  THE 


Supreme  Court  of  Florida, 


AT 


TERMS  HELD  IN   1855-^6. 


By  MARIANO  D.  PAPY,  Reporter. 


VOLUME  VI. 


TALLAHASSEE: 

OFFICE  OF  THE  FLORIDIAN  &  JOURNAL. 
Printed  by  James  S.  Jonci. 

1856. 


[Entered  according  to  act  of  ijvugteaa,  in  the  year  1856,  bj 
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  OP  THESE  REPORTS. 


HoK.  THOMAS  BALTZELL,  Chiev  Justiob. 

Hon.  CHARLES  H.  DuPONT,    )  .  _ 

HOK.  BIRD  M.  PEARSON,*       f  ^"^^"^  *^^"^^"«- 


MARIANO  D.  PAPY,  Attobnby-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. 


*  Elected  in  place  of  Hon.  T.  Douglas,  deceased,  who    presided    dur- 
ing the  terms  held  in  1805. 


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. 

Read  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  to  the  own- 
ership, and  she  may  dispose  of  it  as  if  she  were  a .  fetM 
sole." 

At  page  328,  for  "jm"  read  ''juH" 

At  page  482,  for  'T)aggett  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  BEPOBTED  IN  1856  AND  1856. 


Ahren  &  Hyer  vs.  Willis 369 

Allen  vs.  Hawley 142 

Bailey  vs.  Clark 586 

Barber  vs.  Jacksonville  &  Alligator  Plank  R. 

Co., 262 

Bellamy  vs.  Bellamy's  Adm'r 62 

Bennett,  Carter  vs 214 

Blocker  et  al.,  Cotten  vs 1 

Bobe,  Maiben,  Trustee,  vs 381 

Booby,  Mercer  vs 723 

Branch  vs.  Branch 314 

Brown,  Henderson,  vs 299 

Brown  vs.  Snell 741 

Burrett   vs.    Doggett    332 

Campbell,  Gamble  vs 347 

Campbell  vs.  Chaffee  ^t  al 724 

Carter  vs.  Bennett, 214 

Cherry  vs.  The  State 679  * 

Clark,  Bailey  vs 616 

Cotten  vs.  Blocker  et  al 1 

Cotten  and  Ponder  vs.  County  Commissioners 610 

Croom  vs.  Noll 62 

Crowell  &  Daughtery  vs.  Skipper  580 

Darden,  Lines  vs 37 

Denham  &  Palmer,  Linton  vs 633 

Devall,  Otoway  vs 302 

Dibble  vs.  Jacksonville  &  AlUgator  Plank  R  Co 279 

Doggett  vs.  Willey 482 


VI  SUPREME  COURT. 


TABLE     OF     CASES     REPORTED. 


Eppes,  Exr.,  &c.,  Thornton  et  al  vs 546 

Francis,  a  Slave,  vs.  The  State 306 

Gallaher,  Hooker  vs 351 

Oamble  vs.  Campbell  347 

Grady  vs.  Thigpin,  Adm'r 668 

Groner  vs.  The  State 39 


Hagler  vs.  Mercer 342 

Hagler  vs.  Mercer 721 

Halliday  vs.  Jacksonville  &  Alligator  Plank  Road  R  Go.  303 

Halliday  vs.  Jacksonville  &  Alligator  Plank  Road  R.  Co.  304 

Hardee  &  Co.  vs.  Langford 13 

Harrison  vs.  Roberts   711 

Hawley,  Allen  vs 142 

Hayward,  Wilson  &  Herr  vs 171 

Henderson,  exparte 279 

Henderson  vs.  Brown 299 

Honacker,  Sullivan  &  Hyman  vs 372 

Hooker  vs.  Gallagher  351 

Hooker  vs.  Johnson   730 

Hiirlev's  Ex'r.  vs.  Roche  746 

Jacksonville  &  Alligator  Plank  R.  Co.,  Barbee  vs 262 

Jacksonville  &  Alligator  Plank  R.  Co.,  Dibble  vs 279 

Jacksonville  &  Alligator  Plank  R.  Co.  Halliday  vs 303 

Joe,  a  Person  of  Color,  vs.  The  State 591 

Johnson,  Hooker  vs 730 

Jones  et  al.,  Sanderson  vs 430 


SUPREME  COURT.  vii 

TABLE     OF     CASES     REPORTED. 

Kilcrease  vs.  White   45 

Kelly,  Timanus  &  Co.  vs.  Wallace 690 

Lacy,  McMillan  vs 526 

Langford,  Hardee  &  Co.,  vs 13 

Lathrop  &  Wilkinson  vs.  Snell 750 

Lewis,  Perry  vs 665 

Lines  vs.  Darden 37 

Linton  vs.  Denham  &  Palmer 633 

Maiben,  Trustee^  et  al.  vs.  Bobe 381 

McCormick,  Yonge  &  Bryan  vs 368 

McDougal,  Adm'r.,  vs.  Van  Brunt 570 

McEinnon  vs.  McCollum 376 

McMillan  vs.  Lacy 526 

McMillan  &  Campbell  vs.  Savage 748 

Mercer,  Hagler  vs 342 

Mercer,  Hagler  vs 721 

Mercer  vs.  Booby   723 

Noll,  Croom  vs 52 

Otoway  vs.  Devall 302 

Perry  vs.  Ijewis 556 

Roberts,  Harrison  vs. 711 

Roche,  Hurle/s  Ex'r.  vs 746 

Sanderson  vs.  Jones  et  al 430 

Savage,  McMillan  &  Campbell  vs 748 

Sealey  vs.  Thomas  et  al., 25 

Skipper,  Crowell  &  Daughtery  vs 580 

Snell,  Brown  vs 741 

Snell,  Lathrop  &  Wilkinson  vs 760 

State,  Groner  vs 39 

"       Francis,  a  Slave,  vs 306 

"    Joe,  a  Person  of  Color,  vs 591 

"     Cherry  vs 679 


VIII  SUPREME  COUBT. 


TABLE     OF     GA8BSBBP0RTED. 

Sullivan  &  Hyman  vs.  Honacker 372 

Summerlin  vs.  Tyler 718 

Thigpin,  Adm'r.,  Grady  vs 668 

Thomas  et  al.,  Sealey  vs 25 

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 

White,  Kilcrease  vs 45 

Willey,  Doggett  vs 482 

Willis,  Ahren  &  Hyer  vs 359 

Wilson  &  HeiT  vs.  Hayward 171 

Yonge  &  Bryan  vs.  McCormiek 368 

Note — ^The  head-notes    in   each   case   were    prepared    by 
the  Judge  who  delivered  the  opinion,   as   required    by     law. 


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