Volume 12 — Florida Reports

<p>Appeal from Leon Circuit Court.</p> <p>This case was decided at Tallahassee.</p> <p>A statement of the case is contained in the opinion of the Court.</p>

This case was decided at Tallahassee. The opinion of the Court contains a statement of the facts of the case, to which reference is made.

<p>Appeal from Columbia Circuit Court.</p> <p>This case was decided at Tallahassee.</p> <p>A statement of the ease is contained in the opinion of the ■Court.</p>

<p>1. Wlien the question of malice has arisen in cases of homicide, the matter for consideration is, whether the act was done with or without just cause or excuse. A wrongful act done intentionally, without just cause or excuse, is said to be done maliciously.</p> <p>3. The implication of malice arises in every instance of homicide and in every charge of murder, the fact of killing being first proved, the law will imply that it was done, with malice.</p> <p>3, To rebut the implication of malice, all the circumstances of accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him.</p> <p>4. If the evidence proves a previous grudge or bad blood, or menaces, or expressions of vindictive feeling, or a former attempt on the part of the accused to do the deceased some great bodily harm, there can be but little hesitancy in declaring that the killing was done upon “ express malice,” unless it can be shown, that at the time of the killing, the accused was smarting under a recent and great provocation, calculated to arouse sudden and violent anger.</p> <p>A The law implies malice from any deliberate and cruel act against another, however sudden; and if the natural consequence of the act would be the deatli of another, a court and jury may fairly infer that it was done with intent to kill such other person, and is, therefore, murder. An act is said to be deliberate within the meaning of the law when it is voluntarily done.</p> <p>3. The natural and necessary inference is, that a cruel act, wilfully done, without apparent excuse, is done '■‘■malo animo" in pursuance of a wrongful and injurious purpose, previously, though perhaps suddenly formed, and if death ensues from ‘ such act, it is “ a homicide with malice aforethought,” which is the true .definition of murder.</p> <p>7. When from the evidence the jury are satisfied of the previous existence of malice in the slayer, its continuance down to the perpetration of the homicide must be presumed, unless there is evidence to rebut it and show the wicked purpose had been abandoned.</p> <p>8. When an antecedent grudge has been proved, and there is no satisfactory evidence to show that the wicked purpose had been abandoned, it must be clearly shown to the court and jury that the provocation was great, in order to warrant them in finding that the killing was on the recent provocation, and not on the old grudge.</p> <p>9. Whenever a dangerous weapon is used against an unarmed adversary, even upon reasonable provocation, the killing will be murder and not manslaughter, for the law implies from the use of a dangerous weapon that the intent was to kill, and not to fight on equal footing.</p> <p>10. There is no means by which an Appellate Court can ascertain if there was a rational doubt in the minds of the jury as to the guilt of the accused. When a case of homicide is brought to this court, on appeal, the grade of the offence must be determined by the evidence in the record.</p> <p>This case was argued at Lake City and decided at Talla- ' hassee.</p>

<p>1. The carrying arms on the person partially concealed is construed to be a violation of law prohibiting the carrying of arms secretly. The statute provides that arms shall be carried openly outside of all the clothes.</p>

<p>1. The rule of Court which prescribes that unless the declaration be filed by the first day of the1 second term, the cause shall be dismissed, is not mandatory upon the Court,-but is ©nljy a right or privilege accorded to the defendant, to have the same dismissed upon motion.</p> <p>2. A waiver of praecipe and' summons and an acknowledgment of service, endorsed, upon the declaration, is not to be so construed as to clepr-ive the defendant of his right to make defense to the suit.</p> <p>3. Both by the1 rule of the common Ikw and by the statute of Florida, a Judge is precluded from sitting on the trial of any cause in which he may have a pecuniary interest..' Whether under the second section of the Act of 1862, the defendant may waive the objection.- Query ?•</p>

<p>1. An attachment bond executed by an attorney at law, in Ms own name, binding Mmself and not Ms principal, and signed by two good and sufficient securities, is sufficient under the statute to sustam the writ of attachment.</p> <p>3. The third rule of Court does not conflict with the statute authorizing an attorney at law to sign an attachment bond binding Mmself and not his principal.</p> <p>S. The notice required in attachment suits is to enable defendant to appear and plead to the merits of the cause; and not to appear and contest thé validity of the writ; and the only limitation to the time of notice is, that no judgment can be rendered before satisfactory proof of such notice.</p> <p>4. To obtain the writ of attachment it is only necessary to file the proper affidavit and bond with the clerk — á principo is not required by law. Tlie time of filing the affidavit for attachment is made by statute, for all legal purposes, the date of the commencement of the suit.</p> <p>5. The rule of this Court, adopted in 1854, was not intended to regulate the practice in the Circuit Courts. It is directed to the clerks in making-up a record to be used in this Court, to copy the papers in the order in which they were originally filed.</p>

<p>Appeal from Nassau Circuit Court;</p> <p>This case was argued at Lake City and decided at Tallahassee.</p>

<p>Appeal from Suwannee Circuit Court.</p> <p>. This case was decided at Tallahassee.</p>

<p>1. Courts of Equity will grant relict from judgments of Courts of law in a variety of cases, as where (Ik; defense could not at the time or under the circumstances be made available at law, without laches of the parly; and in cases of surprise where, reasonable diligence could not avail, and where Hie facts constituting ihe surprise are tantamount to a fraud.</p> <p>2. But where a party lias a clear, adequate, and easy remedy ;U, law of which he neglected lo avail himself by reason of a misapprehension of well-established rules of practice.: or by reason of iiaUa'piiliiii/ obstacles which might be met with in ins progress, lie slops short of pursuing hi» remedy, he, is guilty of laches which estop him liom pursuing his remedy in, Equity.</p> <p>3. As, whore a parly may have the benefit of a bill of exceptions, but neglects to avail himself of it, a Court of Equity will no I.-step in. to perform the legitimate, office of such bill of exceptions.</p>

<p>1. The fifth section of the 6th article of the Constitution of this Statcprovides that “ the Suprema Court shall have appellate jurisdiction in all cases in equity, also in all cases of law in which is involved the title to. or right of possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand or flic value of the property in controversy exceeds three hundred dollars; also in all •other cases not included in the general subdivisions of law and equity: also in all questions of law alone ; in all criminal cases in which the .offense charged amounts to felony. The court shall have power to issue writs of ma/ndamus, certiorari, prohibition, quo warranto, Juibeas corpus; and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” Held, that the jurisdiction of this court is two-fold — appellate jurisdiction proper, with power to issue all writs necessary to its full exercise, and original jurisdiction to issue the writs specified where they are the appropriate remedies.</p> <p>3. A. grant of power to issue a writ of quo warranto embraces and includes the proceeding by information in the nature of a quo warranto, this proceeding being civil in its essential incidents, and having in vio.w the same object.</p> <p>3. A constitutional grant of power to issue a writ of quo warranto, can be exercised by this court without legislative action prescribing the mode and manner of its exercise, and the court will discharge its duty by a course . conformable to the principles of the common law, in the absence of legislation upon the subject</p> <p>4. A plea to an information, in the nature of a quo warranto, should set out the defendant’s title at length; it should be responsive to the information. The defendant must justify or disclaim, and not guilty, or non usurpa/mi, are not good pleas. Alt the facts necessary to constitute a good title must be set up. In default of such a pica judgment by default goes tor the State.</p> <p>5. - The Attorney-General is the proper officer to file an information, in the nature of a quo warranto, against a person holding a public office, to inquire into his title to the same. It is a power incident to his office. Upon the filing of the infonaaiion the writ issues upon his demand, as in .•ordinary actions of debt by the State against its debtors, and in a case of /this character the court cannot inquire into his motives, or the motives of ■a third person alleged to influence his action.-</p> <p>3. The Legislature of this State has no authority to hear and determine a •case involving the right and title to the office of Lieutenant-Governor of this State. This is a power distinct from the right of the Senate to try an officer for crime upon articles of impeachment preferred hy the Assembly'. It'is judicial in its character, and a matter solely within judicial cognizance. Nor is it a political question beyond the power of the courts to determine.</p> <p>7. The right to an office will not be inquired into collaterally; the only •«method known to the law of trying the legal title to an office is by a direct proceeding for that purpose.</p> <p>8. An officer da facto is one exercising the duties of an office under color •of election or appointment, and his acts are as valid and binding upon the public, or upon third persons, as those of an officer da jure.</p> <p>9. In a State where equal rights ¡ire guaranteed to all by- fundamental law, the act, of Congress entitled “An Act to protect all persons in. their civil rights and furnish the means of their vindication,” is inoperative to permit a party, after a full and fair hearing, to question the correctness of judicial decisions affecting liis rights, and by- his own act transferring the cause; such, a doctrine would destroy all power of State courts, and it is the duty of the State court to set aside the petition, and proceed to hear -and determine the case according to the principles of law.</p> <p>10. A prosecution instituted in the name and in behalf of the people of -the State ofFlorida, is a substantial compliance with the constitutional requirement in section 2, article VI., viz.: “The style of all process shall be ‘ The State ofFlorida,’ and all prosecutions shall ho conducted in the name and by the authority of the same.” It is sufficient, if it appear from the record that it is conducted by the authority of the State of Florida as -•distinct from the authority of any other power.</p> <p>11. The proceeding by information, in the nature of a quo warranto, is essentially a civil iwoceeding, and the pleadings in it are as much subject ..to amendment as they are in ordinary' civil actions. It is criminal only' in : form.</p> <p>12. The Constitution, until changed in sonic recognized legal mode, is as well a limit upon the power of the people as upon the departments of 'the government. The simple election hy the people of a person to an - office who has not tb.e constitutional requisites for eligibility does not destroy the effect of the constitutional requirements. The fact that the parly is eligible at the lime tlie we is tried cannot modify the principle. He must, liivye been so when elected. Nor is it necessary that there shall he a party contesting the office before this court can act. Tt acts upon the motion of the Attorney-General.</p> <p>10. The terms “ registered voter,'’ in section 22, article XVI., ot the Constitution of the State, refer to the registration authorized by. the 8th section, article XIV., of the Constitution, it did not become operative as a requirement for eligibility to office before the Legislature had passed a registration liny, and the constitutional requirement could be complied with.</p> <p>14. The office of Lieutenant-Governor of this Stale being an office created by tlie Convention which framed the Constitution of this State, it is not controlled in such manner by tlie legislation of Congress authorizing the holding of sucli Convention, ns makes tlie constitutional requisites for eligibility inoperative. Officers elected at the first election to fill the offices provided by tlie Constitution must lie eligible according to. its requirements.</p>

Almon R. Meek, Attorney-General of the State of Florida, who, for the people of the State of Florida, prosecutes, in this behalf, comes here into the said Supreme Court, and moves the said court to strike out from the answer or return made to said rule, the causes or grounds therein shown, stated, and set forth, numbered respectively nine, ten, eleven, and thirteen, for irrelevancy and impertinence. , Almon R. Meek, Attorney-General. After argument,

<p>1. A prosecution for crime must be conducted iu the name and by the authority of the State of Florida. ■</p> <p>2, A judgment authorized by a statute which creates the debt upon which it is based, and which is entered in favor of a person whose suit or demand the defendant has not been summoned to answer, is void.</p>

<p>1. Courts by common law'liad no power to admit an attorney or counsellor to practice.</p> <p>3. Courts by common law had the power to disbarr attorneys after admission when guilty of such conduct as would justify it.</p> <p>8. The statutes of this State regulating the admission of attorneys do not affect the power of courts to disbarr an attorney. Such power is essential to the maintenance of their own dignity and the respectability of their officers.</p> <p>4. Where it is intended to apply to the court to have an attorney disbarred, the proper course of proceeding is to present the charge to the court, and it will direct a rule to show cause why the name of the attorney should not be stricken from the roll, if a case proper for the action of the court be presented; this rule is awarded, served, and returned, and the court hears and determines the matter according to law.</p> <p>C. A regular complaint against an attorney ought not to be received and acted on unless made on oath, and the charge made should be specific and particular, so that the officer may be aware of the precise nature of the accusation he is to meet.</p> <p>6. The county courts of this State have the power to disbarr an attorney and to deny him the rights of an officer of that court, but their judgment cannot extend beyond a denial of the privileges of an attorney in that court. It does not directly affect his rights in other courts.</p> <p>7. While it is essential that the authority, of the courts should remain unimpaired in the exercise of this great and peculiar power, it is not the less so that the rights of the officer should be protected against a wrongful exercise of it, and this court will interpose when the inferior court has decided erroneously on the testimony, and a plain case of wrong and injustice is brought to its attention.</p> <p>8. The appropriate remedy in a case of this character is by a writ of mandamus, rather than an appeal from the order of the inferior eourt, or writ of error.</p>

<p>Appeal from the Circuit Court of Nassau county.</p>

<p>1. When a bill is filed, and a cause is at issue, (and the nature of the case requires a statement of account by a master, and the master in his report simply recapitulates immaterial portions of the testimony, -without stating an account, no decree can be based upon such report.</p> <p>2. Whore the appellate court cannot determine from the- report of a master or from the evidence in the case the basis upon which the decree was made, the decree will bo reversed.</p>

<p>A,B, anil C, being partners, agree upon a dissolution; B and C assign and transfer all tlreir interest in the joint property to A, who assumes the payment of the joint debts, and covenants to save B and C harmless.</p> <p> Held : </p> <p>1. That the property ceases by such agreement to be joint property, and that the lien or equity of the retiring partners to have a sale of the property, and an application to the joint debts, is destroyed.</p> <p>2. That as between C and A a relation analogous to that of principal and surety exists by virtue of A’s assumption of the debts and Ms covenant, and that, saving the rights of the joint creditors, C has the standing of a surety in a court of equity.</p> <p>o. When the liability of a surety has attached in consequence of the default of the principal, the surety who has been sued by the creditor may apply to a court of equity and compel the principal to relievo him from his liability.</p> <p>4. Where the Chancellor has, upon a bill filed by the surety in such a case, appointed a receiver to take charge of the old stock and such property as has been purchased by the proceeds of sales of what was once joint property’-, this court will not direct such order to be vacated unconditionally in a case where the principal debtor has transferred a portion of his money to another State, and is doing such acts as indicate an intention to disregard his covenant, and which if not checked will result in loss to the surety. Snell an order should be vacated only on such terms as would secure the application of such property to the payment of the joint debts to the relief of the surety.</p>

<p>In Chancery — appeal from the Circuit Court for Nassau county.</p> <p>The opinion states the pleadings and facts.</p>

<p>1. 'The plat of a town referred to in a deed as containing a description of the' boundaries'of a lot fixes these boundaries as satisfactorily as natural objects, and if in1 2a deed referring to a plat as containing the general conformation of-the lot granted, its locality is given by well-defined lines, and the width of the lot is given by measurement,' one of the calls is in such language as it. may indicate either aspect or a natural boundary, this doubtful call must be giyen that signification which is most consistent with the evidence in the case.</p> <p>2. All obstructions to the navigation of a hay or harbor, not authorized by the Legisláture, are public nuisances, hut all structures built upon submerged soil between-thé line óf high tides of á navigable hay and its channel are not ipsofaato nuisances; whether they, are nuisances is a question of fact to be determined in each case.</p> <p>8. An obstruction to navigation, which is a public nuisance, being thsubject of a proceeding at the instance and in behalf of the State, by which it may be abated, and the person guilty of its erection punished, an individual cannot maintain an action, either at law or in equity, to have it abated, or to prevent the creation of other like nuisances, unless he sustains damage beyond and in, addition to that which .falls alike upon .the public* and he must seek relief in a court of law or equity, as the nature of his special injuries and the remedies for .them should determine to be appropriate.</p> <p>4. Where the erection of a structure upon a public road or street, in a city, is threatened, the structure being a public nuisance which works special damage to a neighboring proprietor in the enjoyment of his property in the vicinity, as well as to the value of it, a court of equity will grant an injunction to restrain its erection, but if the structure is some distance from the true line of the road or street, and does not interfere with tile use to which the road is dedicated, it will not, on this ground, restrain its erection.</p>

Statement of the case, prepared by Chief-Justice Randall : A bill was filed-by Henry Timanus, complainant, appellee, against the appellant in the circuit court of Nassau county, in which complainant alleges that he is the owner in fee simple of certain lands and tenements in the city of Fernandina, known as lots numbers one, two, sevezi, and eight, in block thirty-six, having purchased the same from the Trustees of the Florida Railroad Company on the 19th day of January,…

<p>1. Under the statutes regulating appeals in chancery from final or interlocutory decrees a bond is not necessary to perfect an appeal. The only result attending- a failure to give bond under the statutes is, that the appeal does not operate as a supersedeas.</p> <p>2. Where an appeal is prosecuted from an interlocutory order or decree in chancery, under the act of 1853, if the bond is in a sufficient amount and so conditioned as to secure the appellee fully in his rights, as well as for all damages in the event the decree of the court below is affirmed, either in whole or in part, it is a sufficient bond.</p>

<p>1. The husband having executed a deed conveying the whole of his estate, the conveyance will not be set aside, upon a bill by the wife charging that the husband was of unsound mind, and incapacitated to contract at the date of its execution.</p> <p>3. Where such a bill is brought by the wife .against the grantee of the husband, there being no equity in the bill, or prima fade case made against the defendant, an interlocutory order, directing such grantee to pay an allowance to the wife pendente lite, is improper.</p>

<p>1. Deficiencies in the record cannot be taken advantage of by motion to dismiss tiie appeal. If the appellee desires to remedy the deficiency, be must suggest the diminution and move for a certiorari under the rales.</p> <p>2. What is good cause for an omission to file a copy of the record on the first day of the term of this court in accordance with the statute, is matter to be addressed to the discretion of the court. In this case, held that the state of the country at and preceding the first term, of this court was sufficient cause to excuse a failure to file the record on the first day of that term.</p>

<p>1. Where, upon bill filed, a decree of divorce a vinculo rmi/t'imonii, and of reference to master to report as to allowance for alimony, is passed upon the consent and agreement of the parties, an appeal from the order confirming the report when made, and fixing the alimony, opens for consid - eration under the statute of this State the decree of divorce, and though the parties may not desire to disturb the decree of divorce, it will he reversed if improperly granted.</p> <p>3. A decree of divorce from the bond of matrimony cannot be entered, properly upon the mere consent or agreement of the parties of record-There must he a complaint of due form, for a cause authorized by law, supported by due proof.</p> <p>3. Ad interim alimony, or alimony pendente lite, as well as the allowance of a sum to the wife to enable her to prosecute her suit, are given not as of strict right in the wife. It is a matter for the sound discretion of the court.</p> <p>4. If no order awarding alimony pendente lite or counsel fees is made until after a decree for divorce, such an order under the statute should not he then made unless the nature of the case makes it “ fit, equitable, and just.”</p> <p>5. Where the wife has brought her case to a hearing before such an order is made, no allowance, either for alimony or costs of counsel, should be made where the case from the evidence and the pleadings is one in which she had no reasonable ground of suit.</p>

<p>1. It being a requirement of tbe statutes of this State that “no diyorce from tbe bond of matrimony sliall bo granted to any applicant-, unless it shall appear that such applicant has resided in the State of Florida for the space of two years prior to the term of such application,” this fact must be alleged in the bill, and established by proof.</p> <p>2. Where the bill omits this material allegation, and in addition to this •omission it fails to set up a sufficient ground of divorce, as well as the particular facts constituting the ground, no amount of testimony will justify the court in granting a decree of divorce a vinculo matrimonii upon it.</p> <p>3. Where, after an appearance, the matter of such hill is taken for confessed in default of an answer, and a final decree of divorce a vinculo matrimonii is passed upon testimony, an appeal from the final decree opens for the consideration of the court the matters charged in the bill, and if the averment necessary to give jurisdiction of the person is omitted, and the matters charged in the bill are insufficient to sustain the decree, it will be reversed.</p> <p>4. Where, upon the face of the bill, there is not sufficient alleged to-justify a decree of divorce, the court should not, at any stage of the proceedings, allow to the wife means to compensate counsel to prosecute her suit. A prima facie case must at least be made in her pleadings before such an order is passed.</p> <p>5. Permanent alimony is a continuous allotment of sums payable at regular periods. A gross sum of money given absolutely in full satisfaction, or a specific proportion of the husband’s estate, cannot be given • absolutely in full satisfaction of alimony.</p> <p>6. Before a decree for permanent alimony is passed, there should be • testimony sufficient to form an intelligent basis for such an order. There-should be such testimony as would enable the court, with reasonable certainty, to do justice alike to the parties.</p>

Statement of the case by RANDALL, C. J.: This was an action of assumpsit commenced in 1866, by the appellee, to recover for the services of a negro woman, let to hire by the apjmllee to the appellant, from October 20, 1863, to March 20, 1865.

Writ of Error to Escambia Circuit Court. This was an action of assumpsit instituted by the plaintiff in error against the defendant in error. There was judgment sustaining- a demurrer to the declaration, which declaration 'was in the words and figures following: The said plaintiff, by his attorney, C. W. Jones, complains against said Benjamin D. Wright, executor of the last will and testament of Chester P. Knapp, deceased, in an action upon promises.

This was a motion to dismiss the appeal upon the ground that the appellant had failed to file a copy of the proceedings in the cause with the clerk of this court on or before the first day of the term as required by law. The facts appear in the ■ : opinion.

This is an appeal from the Circuit Court of the Middle Judi* cial Circuit in Leon county. The opinion of the court contains a full statement of the facts to which reference is made.

Statement of case by RANDALL, C. J.: Suit was commenced February 12th, 1867, upon two promissory notes made by appellant, defendant below, to plaintiff, appellee, one for $350, dated Tallahassee, February 27th, 1862, with interest after maturity at 8 per cent., at nine months, and due November 27th, 1862, and one for $421, dated Tallahassee, January 18th, 1S62, with interest after maturity at 8 per cent., at six months, and due July 18th, 1862.

<p>1. A paper purporting to be a writ of certiorari, without the seal of the court from which it purports to be issued, and without being tested according to law, is a nullity.</p> <p>2. In the absence of a bill of exceptions showing the testimony given on the trial in the circuit court, this court will presume that there was adequate evidence before the jury to support the verdict.</p> <p>3. A judgment will not be reversed unless an error appears to have been, committed by the court below, and the error must clearly appear in the record.</p>

<p>1. Where a verdict is clearly against evidence, or clearly in disregard of preponderating evidence, it -will be set aside and a new trial granted.</p> <p>2. Where upon a sale of property, a note being given for the price, and a bill of sale given in terms conveying the present title to the property, yet if there be a subsequent independent agreement to deliver the property sold at a future time, and the seller refuses or fails to deliver the property! the defendant niay avail himself of these circumstances to defeat a recovery, upon suit brought by the payee upon the note.</p>

<p>1. Though a court make an incorrect ruling' as- to the admissibility of testimony, if it be afterwards corrected, and such testimony admitted in time to give the party all the benefit of the facts sought to be proved, such erroneous ruling will not be ground for granting a new trial.</p> <p>2. It is discretionary with a court whether to compel a party to join in demurrer to evidence.</p> <p>3. Where there is testimony tending to prove the concurrent understanding and intention of the parties as to the particular terms of a parol agreement, and the jury have passed upon it, the verdict will not be disturbed, particularly where the charge of the court was proper.</p> <p>4. The statute of usury, Th. Dig., 234, §1, refers to contracts of the loan of money or things of value for a specified interest or compensation for their use, according to their value ; and such contracts as provide for a certain uncontingent repayment of the principal sum or value, and a certain uncontingent rate in value for its use; and unless a contract is in violation of this principle, it does not come within the prohibition of the statute; and therefore,</p> <p>5. A contract to repay one and a half bushels of corn, within a year, for one bushel advanced, is not within the prohibition of the statute of usury, because the value of the article is fluctuating, and the increased quantity may not be equal in money value, at the time of payment, to the value of the principal or thing loaned at the time of the loan.</p> <p>6. Relationship, by affinity to one of the parties within the ninth degree, is, by the common law, a ground of challenge of a juror. But where a juror is called who is “ first cousin to plaintiff’s wife’s mother,” and the defendant being present makes no objection, and does not afterwards show that he was unaware of the relationship, (though his counsel does make an affidavit to that effect,) and it does not appear that the persons through whom such relationship existed are still living, such cause is not sufficient to set aside a verdict, especially when there is no evidence that the juror is in fact influenced from that cause.</p>

Writ of Error to Circuit Court for Jackson county. Tlio plaintiff in error was indicted for the murder of Addison Fullerton. On the morning of the day of the homicide, the prisoner and deceased mot casually at a house called the “Tidwell Place.” A difficulty occurred there between tho parties. Eliza Jane Tidwell (for the defense) testified in reference to this antecedent difficulty: “ That the parties met at the Tidwell Place.

<p>1. In an action by the bearer of a promissory note against the maker, a plea setting up “ that the plaintiff at the time of the commencement of the suit did not possess, and was not seized in his own right of the legal title to the promissory note, the same not having been assigned or transferred to him by the original payee thereof, or by any other person having the legal thereto,” is not a good plea.</p> <p>2. Possession by plaintiff in Ms own right at the commencement of a suit upon a note payable to bearer is not'essential to a recovery. Possession by an agent or tiustee is sufficient to maintain an action at law in his own name as bearer, and proof of agency only results in permitting the defendant to avail himself of any defense against the principal which he may have.</p> <p>3. A plea of this kind is not available unless it sets up that plaintiff is possessed mala fide, or by casualty without consideration.</p> <p>4 Plea of an assignment of such a note to .plaintiff by a party not having the legal title would not defeat the action. It should go further, and set up that it was not acquired bona fide, and for a valuable consideration without notice.</p> <p>5. The entry, “ this day came the parties by their attorneys,” preceding a judgment nil dicit, which is followed by a direction to stay execution embodied in the judgment, accompanied with partial payments upon the execution, when issued, held to be evidence that the parties were present when the judgment was entered, and that a plea of the character mentioned was abandoned.</p> <p>C. When there are good counts and bad counts in a declaration, aud there is a plea to the good counts upon which issue is joined, and the issue is undisposed of, yet if the plea is bad .in substance, a judgment of the court below, which is warranted by the good counts, will not be re-' versed upon a writ of error.</p>

<p>1. The general purpose and intent of the attachment laws is to give the creditor protection and security whenever the debtor is committing certain enumerated acts of fraud, or he is in such a situation as cither endangers the debt or impairs the remedy for its collection. They should not he so construed as to prohibit the debtor under all circumstances from engaging in every legitimate species of trade beyond the confines of State jurisdiction.</p> <p>2. The statute authorizes an attachment whenever the debtor is actually removing his property out of the State. Held : That although a case in which there is no had intent, the transaction is fair, the amount of property being removed in comparison with what remains is small, the debtor is solvent, and the debt is not endangered, was within the letter, yet it was not within the spirit or true meaning of the statute.</p>

Writ of Error to the Circuit Court for Duval county. On the 15th day of August, 1867, a suit in assumpsit by attachment was commenced in the circuit court for Duval county, by W. A. Work & Son, against Henry T. Titus. An affidavit, hond, and praseipe were duly filed as of that day, a writ of attachment issued, and certain goods of the defendant were attached thereon. The affidavit was made by George D. Gilchrist, and described him as agent of the plaintiffs.

<p>1. A judgment is a general lien upon real estate, and a court of law cannot control that general lien by directing execution of the judgment against specific portions of the property of the defendant in execution to the exclusion of other portions equally subject to the general lien, on account of equities claimed to exist in favor of a person .not a party to the judgment or execution.</p>

Writ of error to the Circuit Court of Nassau county. This was a motion to dismiss the writ upon grounds stated in the opinion, to which reference is made for a full statement of the facts.

Writ of error to the Circuit Court for Escambia county. The case is fully stated in the opinion of the court, to which reference is made.

<p>1. Members ol' wkal is known as the “Secession (Jonvention” were neither executive nor judicial officers of this State, within the meaning- of these terms as used in Section 1, Article XVI., oí the Constitution of this State. A person who was a member of such Convention, and signed the OJ'dinance of secession, and who afterwards gave aid and comfort to the enemies of the United States, is not prohibited from holding any office, executive, legislative, or judicial, in this State.</p>

<p>Sect. 8, Art. IV., of the Constitution provides that “ a majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the presence of absent members, in such manner and under such penalties as eacli House may prescribe.”</p> <p>1. The term “ House ” in this clause of the Constitution, when used in reference to the matter of quorum, means the entire number of which the Assembly or Senate may be composed. A quorum for the purposes of .general legislation is not less than a majority of the whole number of which the “ House ” <may be composed. Vacancies from death, resignation, or failure to elect, cannot be deducted in ascertaining a quorum.</p> <p>2. To constitute an impeachment so as to be effective under the Constitution to suspend the officer, the articles of impeachment must be presented to the Senate, and a constitutional quorum of the Senate must receive them.</p>

<p>1. The Senate of the United States is the exclusive judge of the election return and qualifications of its own members. Whether an election of a. Senator by a State Legislature is in conformity with such regulations as are prescribed by Congress, or whether, for want of strict conformity therewith, it is illegal and void, are questions which this court has no 'jurisdiction to decide.</p>

<p>1. The provision of the Constitution, that the salaries of officers shall be payable quarterly, does not refer to the “ pay ” of members of the Legislature; their “pay” may be drawn at such'time as the Legislature may, by law, determine.</p> <p>Note. — The head note in this case was prepared in accordance with the statute by the Judge delivering the opinion. — Rep’r.</p>