Volume 13 — Florida Reports

Mandamus to the Comptroller of tlie State of Florida. On the 24th of January, A. D. 1870, there being a vacantej in the office of Lieutenant Governor of the State ofFlorida, the Governor of said State appointed and commissioned Edmund C. Weeks, the petitioner, as such Lieutenant Governor, who accepted, qualified and discharged the duties of said office for the first quarter of the year 1870.

<p>A statement of the case is contained in the opinion dS. the court.</p>

MANDAMUS. Upon petition filed fey William D. Bloxham, on the 10th day of January, A. D. 1871, an alternative writ of mandamus to the Secretary of State, Comptroller, and Attorney General of the State, members of the Board of Canvassers of general elections in Florida, was awarded.

<p>The law of descents in 1828 provided that the real estate of intestates should descend in parcenary to the male and female kindred in a certain course, viz.: 1, to children; 2, to the father; 3, to the mother, brothers, and sisters ; 4, for want of these or their descendants, to paternal and maternal kindred in moieties, &e. In that year provision was made by law, that personal property should “ be distributed according to the law regulating descents.” In 1829, the previous law of descents was repealed and reenacted, ■with, pi'omsos, (Duval’s Compilation, 861,) that whenever an infant shall die without issue, having title to any real estate of inheritance derived from the father, and there be living any kindred on the side of the father of the infant, such estate shall pass to the father or the paternal kindred, without regard to the mother or maternal kindred, saving the mother’s right of dower. And if the real estate of such infant was derived from the mother, the same should descend to the mother or maternal kindred, without regard to the father or paternal kindred: Held,</p> <p>1. That the act of 1828 adopting “ the law regulating descents” as the rule for the distribution of personal estate, applies to any law regulating descents in force at the time that the right to the distribution becomes vested, (agreeing with Jones vs. Dexter, 8 Fla; 276.)</p> <p>2. The provisos contained in the act of 1829, entitled “ An Act Regulating Descents,” being paragraphs 10 and 11 of section 1, are part of the law regulating descents, and furnish a rule for the distribution of the personal estate of an infant, derived from the father or the mother, as the case maybe, it being the intent of the law that the personal estate should be distributed by the same rule that governs the descent of real estate,— (Overruling the decision in Jones vs. Dexter.)</p>

Sarah E. Rowles, the appellee here and the plaintiff below, filed her bill in behalf of herself and other judgment creditors of the estate of Robert H. Berry, deceased, alleging that her testator, John J. Rowles, and Robert H. Berry, in the year 185 , entered into a mercantile copartnership; that according to her information and belief the whole capital was contributed by her testator, Berry being insolvent and without means; that the parties carried on “ a prosperous and…

This is another appeal in the preceding ease prosecuted by the defendants in the circuit court. The first appeal being dismissed, the suit was subsequently revived in the circuit court by the legal representatives of the deceased defendants. There being no amendment of the pleadings, the case brought up by this appeal is identical with that brought by the previous appeal, so far as the issues are concerned.

The case being stricken from the docket for informality in ■the clerk’s certificate, it is unnecessary to make any statement of facts.

This is an appeal from a cleeree rendered by the Judge of the Fourth Judicial Circuit in Duval county.

This is an appeal from a decree rendered in the Circuit Court for Marion County. Henry L. Ritch files a bill against Adam L. Eichelberger,, and the other defendants, seeking the foreclosure of a mortgage executed by Eichelberger to him, as well as to set aside a sale of the mortgaged premises which had been made under a judgment at law rendered before the execution of the mortgage deed. The material allegations of the bill are: 1.

This is an appeal from a final decree in the Circuit Court for Leon County. The case is fully stated in the first note of the decision and the opinion of the court.

This is an appeal from a final decree rendered in the Circuit for Marion county. Adam L. Eichelberger filed his bill in that court setting up a co-partnership between himself and Abner D. Johnston, in the business of selling certain, goods and merchandise, which Johnston had before that time purchased in the city of Few York. At the date of the alleged agreement, which was in writing, the goods had nob arrived at the point where the business was to be carried on.

This is an appeal in Chancery from the Circuit Court for Jefferson county.

<p>1. A writ of error is not the proper process to bring up for review an order or decree in a suit in equity; the only method known to our statutes is an appeal. Held,</p> <p>3. Courts of equity will not interfere by injunction to stay proceedings upon a writ of mandamus.</p> <p>3. An injunction will not be granted if the party seeking it could, by proper vigilance, have protected himself by the ordinary means at law, or where the case in equity proceeds upon a defence equally available at law.</p> <p>4, A proceeding by mandamus does not abate by a chango in the membership of the municipal body, as by the resignation of members of a Board ■ of County Commissioners and the appointment of new members.</p>

<p>Appeal from the Circuit Court of Jefferson county in equity.</p> <p>The case is stated in the opinion of the court.</p>

George W. Means, administrator of .John W. Anderson, filed in the Probate Court of Alachua county a suggestion of insolvency of said estate. A decree of insolvency was made, and all the creditors were cited to file their claims against said estate. Francis D. Scarlett, the appellant, and Flicks and Lang, administrators, appellees, were creditors of* the estate in amounts exceeding $J0,00Q .each.

<p>The case is fully stated in the opinion of the court.</p>

<p>1. When a judge of the Circuit Court orders the transfer of a cause to another circuit, under the provisions of “ An act to provide for the more effectual administration of justice in this State,” approved January 24, 1851, he should affirmatively state in the order of transfer, or in some other paper to be filed, the reason why the transfer ís made, or the order will be irregular.</p> <p>3. The statute referred to makes it a condition of the transmission of the papers by the clerk, that the costs shall be first paid, and if the condition be not complied with on the part of the party procuring the order of transfer, and the clerk should refuse or neglect to transmit the papers for that reason, any other party may, on proper application, have the first order revoked and the cause removed to any proper circuit on complying with the statute.</p> <p>3. A judge has no jurisdiction of a cause in which he is interested, and can make no order therein except for the purpose of transferring it to some other circuit whereof the judge is qualified to try the cause, and if the judge of the circuit to which the cause is sent is also disqualified, held, that it is his duty to order the papers to be returned to the court from which it was sent, in order that some other circuit may be selected.</p> <p>4. The jurisdiction of the court in which a suit is commenced is not divested merely by an order of transfer under the act of January 24,1851, nor does the court to which the transfer is directed to be made obtain jurisdiction until the papers reach the clerk of the court mentioned in the order.</p> <p>5. A civil cause is not pending in a court until the papers showing the existence of the cause are deposited with the clerk who has the custody of the records of the court having jurisdiction of the cause.</p> <p>6. The requirements of a statute authorizing a transfer of a cause from one court to another must be strictly observed, and everything necessary to transfer jurisdiction under the statute must appear in the record of the cause.</p> <p>7. The fourth section of the act approved January 24,1851, authorizing a judge of one circuit to make orders in suits pending in another circuit in vacation, when the judge .of the latter circuit is under the disabilities mentioned in the act, is not in conflict with the constitution of 1868.</p> <p>The order made by the judge of another circuit isp?’o Iwe vice, the order of the court in which the cause is pending, and such order must be filed therein.</p> <p>8. An order of a circuit judge in a cause supposed to be pending in another circuit is void, unless the cause is pending therein at the time the order is made.</p> <p>0. When application is made to a judge for a writ of injunction upon bill filed, the judge should make an order requiring security to be given to protect parties who may sustain damages in consequence of the issuing of the injunction, and when, under the law of 1860, the party applying for the injunction makes affidavit that he is unable to give the required security, and that the statements in the bill are true, the judge is not authorized to grant the writ without requiring security, unless the party shall prove, ex parte, the truth of the statements of the bill and of the accompanying affidavit.</p> <p>10. The general rule is, that an application for a writ of injunction, or for the appointment of a receiver, must be upon notice to the opposing parties ; yet, if the act to be prohibited be such that delay will be productive of serious damage, the writ will be granted or a receiver appointed ex pm'te. The emergency must be j udged of by the chancellor in the exercise of a discreet judgment.</p> <p>11. When a suit in chancery is commenced in the seconcl circuit, and an order is irregularly made transferring the cause to the third circuit, and owing to the absence of the judge of the latter circuit the papers are taken to and filed in a county in the fourth circuit, where proceedings are had in the cause, from which proceedings an appeal is taken, this court will reverse and set aside such proceedings, and direct that the papers be returned to the county where the suit wras commenced.</p>

<p>The case is fully stated in the opinion of the court.</p>

This is an appeal from a decree rendered in the Circuit Court for Duval county.

<p>1. Where a decree of divorce has been passed, an appeal taken, and supersedeas awarded, a court of equity should not award an injunction to control the operation of the supersedeas.</p> <p>2. Where the legal estate is in the trustee, actions founded upon the legal title must be brought in his name. So also has the trustee the right at law to institute all proceedings authorized by statute or otherwise, to redress injuries to his possession, and to evict defaulting tenants.</p> <p>3. That defendant “ has interfered and intermeddled with the property, and still continues to do so, and has and still continues to forbid the tenants and lessees to pay the rents to the plaintiff, and has forcibly entered one of the buildings on the premises,” does not lay a foundation for an injunction. There are clear remedies at law for a failure oí a lessee to pay rent. The forcible entry is remediable at law also, and the terms “ interfering and intermeddling ” do not disclose a case of threatened trespass, accompanied with irreparable injury or other circumstances calling for the aid of a court of equity.</p>

<p>1. It is irregular, and sanctioned by no rule of Chancery practice, to direct a special issue as to the lunacy of a party upon particular dates to be tried in a court of law upon an ex pwrte petition of a Mend of the lunatic.</p> <p>2. Two methods of investigating the subject of the lanacy of a party are known to Chancery practice. One is where the matter of lunacy becomes a subject of inquiry in a cause pending. In this case the chancellor may and usually does direct an issue to be tried in a court of law to try the question of the lunacy of the party. The other is where a commission de lunaMao inqumndo is awarded upon an «abarte petition of a friend of the alleged lunatic. Some of the incidents of each method considered.</p>

<p>Appeal from the Circuit Court for Columbia county.</p> <p>A statement of the case, upon the points decided, is contained in the opinion of the court.</p>

<p>Appeal from Leon Circuit Court.</p> <p>A statement of the case is contained in the opinion of the court.</p>

<p>Appeal from a judgment rendered in tlie Circuit Court ibr Calhoun county.</p> <p>In March, A. D. 1866, Adam McUealy brought an action ©I assumpsit against Jason Gregory, in the Circuit Court of Cíalhoun county, upon a promissory note of Gregory, payable to A. IT. Bush, or Bearer. Certain pleas, raising quesfi©ns in reference to the interest of the plaintiff in the note, irere filed. JSTo plea was filed setting up the fact' that the «©nsideration of the note was the price and value of a slave sold by the payee of the note (Bush) to the maker, Gregory] McUealy obtained a judgment on the 25th of October, A. ]D„ 1866, and execution issued thereon. This judgment was reviewed by this court upon a writ of error at January term, A. 1). 1869. It was afiirmed and the case remanded, (12 Fla., 579.) At the October term, A. D. 1869, of the Cirenit Court for Calhoun county, and after the mandate from ■this court had reached that court, Gregory, the defendant in execution, filed his petition in the Circuit Court, alleging fhat in March, A. JD. 1860, he purchased a slave of Allen T£ Bush, to whom he gave a promissory note for the price agreed uponthat Bush transferred the note to Adam McHealy, and that the note upon which the said judgment of the 25th of October, A. D. 1866, was based, was this note so given for a slave. Hpon the filing of this petition, and without notice to the plaintiff in execution, an order was made setting aside the judgment, reinstating the case, and giving the defendant liberty to plead the matter of the consideration of the note, as well as directing the sheriff to return the execution then in his hands to the clerk’s office, and to suspend proceedings thereon. Gregory then interposed a plea, alleging that the note was given for a slave. At a subsequent term, a motion of the plaintiff to set aside this order as being made without notice or an opportunity for hearing, was denied, whereupon a demurrer to the plea •was interposed and overruled. Plaintiff, excepting to the ruling of the court upon the demurrer, there rested his case. A final judgment for the defendant was then entered. This judgment was peculiar. It declared both the facts and the law of the case. It recites that the note upon which the action was brought was given for a slave; that the constitution declared that no action should be maintained thereon. It then directs the suit to he dismissed for want of jtorisd/icUon to hear and determine the same ; that the plaintiff take nothing by his action, and that the defendant recover fifty-one dollars for his costs in this behalf expended. The plaintiff now prosecutes an appeal to this court, and asks this court to declare that the original judgment is still valid, and to set aside all of these proceedings.</p> <p>The section in the constitution of this State under which these proceedings were had, is section 26 of article xvi., and is as follows:</p> <p>“ It shall be the duty of the courts to consider that there is a failure of consideration, and it shall be so held by the courts of this State, upon all deeds or bills of sale given for slaves, with covenant or warranty of title or soundness, or both; upon all bills, bonds, notes, or other evidences of debt given for or in consideration of slaves which are now outstanding and unpaid, and no action shall be maintained thereon; and all judgments and decrees rendered in any of the courts of this State since the 10th day of January, A. D. 1861, upon all deeds or bills of sale, or upon any bond, bill, note, or other evidence of debt based upon the sale or purchase of slaves, are hereby declared set aside, and the plea of failure of consideration shall be held a good defence in all actions to said suit; and when money was due previous to the 10th day of January, A. D. 1861, and slaves were given in consideration for such money, there shall be deemed a failure of consideration for the debt: provided, that settlements and compromises of such transactions made by the parties thereto shall be respected.”</p>

Charles E. King, trustee, presented to the Circuit Court of Columbia county his petition for an alternative writ of mandamus, to be directed to Abel J. Hutchinson and others, composing the board of County Commissioners of Columbia county, and to their successors in office, commanding them to proceed to levy and collect a tax upon the property and persons within said county to pay certain instalments of interest alleged to be due to the petitioner upon the coupons in his…

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

This was an action of covenant commenced by the appellee (plaintiff) against the appellant, in the Circuit Court of Duval county in 1866. The declaration sets out the terms and conditions of a lease executed on the first day of October, 1859, by Win.

Tliis is an appeal from a judgment redered in the Circuit Court for Duval county in an action of trover, instituted by Hartridge against Robinson, to recover damages for the conversion of four bales of cotton. The case is stated in the opinion of the court.

This is an action oí trover brought by the appellant against the appellee in the Circuit Court for Madison county. There was a judgment for the defendant upon the merits, from which this appeal is prosecuted. The case is stated in the opinion of the court.

<p>Appeal from tlie judgment of the Circuit Court for Duval county.</p> <p>The case is stated in the opinion of the court.</p>

<p>Error to Circuit Court of Madison county.</p> <p>The case is fully stated in the opinion of the court.</p>

<p>1. After demurrer sustained to a plea, if the defendant by leave of the court files a new plea, he thereby abandons his former plea and the exceptions to the judgment on the demurrer; and the last plea being demurred to and the demurrer sustained, this court can review only the judgment upon the demurrer to .the last plea.</p> <p>2. After successive pleas have been held bad, on demurrer thereto, it is error to enter a judgment for want of a plea; the proper judgment is a final judgment on the demurrer.</p> <p>3. The first section of “ an act providing for the stay of executions in this State,” approved Dec. 13,1861, providing that “ there shall be no sales under execution and judgments at common law or decrees in Chancery in this State, until twelve months after peace is made and proclaimed or until otherwise provided by law, between the Confederate States of America and the United States of America, except by the consent of the defendant or defendants,” provided, that in cases of levy the “ defendant be required to give bond with security for the forthcoming of the property on or at the time above specified,” is void as contravening the spirit of the constitution of the United States recognizing the establishment of the Confederate government, and contemplating the dismemberment and destruction of the Union of the States.</p> <p>4. When a party has filed his pleas and they are pronounced insufficient upon demurrer, it is not a matter of course that the defendant may plead cte novo. The judge should exercise a sound discretion in permitting new pleas to be filed, and should inspect the plea offered, and if it is a mere repetition, of a previous plea or is not a good defence, or seems to be interposed for delay, or if there is any other like good reason, he should refuse leave to fie it.</p> <p>Per Westcott, J.:</p> <p>Where a bond was given in 1861 for the forthcoming of slaves levied upon by execution, the condition of which was that the slaves should be delivered twelve months after peace should be made and proclaimed be. tween the Confederate States and the United States of America; Held,</p> <p>That the happening of the contingency mentioned was a condition governing the liability of the obligors, and that no breach of the condition having occurred, no action can be maintained upon the bond.</p>

<p>X. Where the record contains a declaration in ejectment, a plea of the general issue and a joinder in issue endorsed in short form upon the plea without showing the date upon which the joinder in issue was added, the presumption is that it was in in due time.</p> <p>2. A bill of exceptions should he made up and signed during the term of the court at which the trial is had, unless by special order further time is allowed.</p>

This is an appeal from a judgment of the Circuit Court of Leon county. The relator was a witness in behalf of the State before the grand jury, and at the trial of a cause in the Circuit Court. He claimed that the fee for his attendance was payable by the county, and filed his petition in the Circuit Court for a mandamus to be addressed to the county clerk, commanding him to draw a warrant in relator’s favor for the sum due.

This is an appeal from a final order rendered in the Cir■cuit Court for Escambia county. The opinion contains a full statement of the case.

<p>Error to the Circuit Court for Nassau County.</p> <p>The defendant in error moved to dismiss the writ of error for want of jurisdiction.</p>

This is an appeal from a judgment of the Circuit Court in Escambia County, rendered in an action of replevin instituted by Penny against Holmes. There was a judgment for defendant, from which the plaintiff appealed. The error assigned in this case required a consideration of the testimony in order to its determination, and there was no bill of exceptions in the record. The case is decided solely upon this point.

<p>Appeal from the Circuit Court for Duval County.</p>

This was a proceeding instituted before the Circuit Court for the county of Washington by the respondent, for the unlawful withholding from him by the appellant, without the consent of the respondent, of certain land in that county, praying restitution of possession and damages.

<p>When, before the adoption of the Code of Procedure, a cause was referred by the Circuit Court to a practicing attorney as referee, in pursuance of the 17th section of Art. YI of the Constitution, to be tried and determined by him; and upon a hearing of the cause upon the law and facts he made his decision and filed the same, with a record of his proceedings, in the office of the cleric of the Circuit Court in vacation, such decision does not become a final judgment of the Court without further action of the Court thereon, and an appeal cannot be taken from the decision of the referee to the Supreme Court as from a final judgment.</p>

The declaration was upon a promissory note and upon the common counts. The defendant pleaded: 1. The general issue. 2. That the note was made during the late war, and that the currency contemplated in its payment was Confederate or State Treasury notes. 3.

This is an appeal from a judgment rendered in the Circuit Court for Alachua county in an action of assumpsit, wherein Daniel G. Anderson was plaintiff, and the Presbyterian Church of Gainesville was defendant. The record con-' tained no final judgment. It was apparent from the bill of exceptions that the plaintiff had taken a non-suit in the case.

Judgment having been rendered against the appellants, who were plaintiffs in the Circuit Court, and a motion for a new trial having been made by them, which motion was denied on the 4th day of October, A. I). 1869, the plaintiffs, on the 9th day of October, prayed an appeal, which was granted. On the same day, the said Circuit Court was adjourned for the term. On the 4th day of November the appeal bond was approved by the Judge and filed.

The defendants in error moved to dismiss the writ of error in this case upon the grounds stated in the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Duval county. The plaintiffs, William Gr.

Ejectment for lands in St. Johns county, tried in Duval county. Hnder consent rule, the plea of defendant, Per-pall, put in issue the title to the lands mentioned in the declaration.

The Sheriff, appellant, was required by a rule in open court to report what action had been taken by him upon an execution issued upon a judgment rendered in favor of Lloyd W. Williams against Sarah M. Pearson, administratrix of the estate of John W. Pearson.

<p>Writ of error to the Circuit Court for Escambia County. J. W. Hall & Co. brought an action of assumpsit against William Penny. The declaration contains but one count, which is for goods sold and delivered. The defendant pleaded the general issue, and a set-off of moneys due for goods sold and delivered, and for money had and received by plaintiff for the use of defendant. By consent a jury was waived and the case submitted to the court.</p> <p>Under the plea of set-off, defendant introduced evidence of an agreement between himself and plaintiff to the effect that plaintiff agreed to ship a cargo of lumber to St. Marys, Texas, and to sell it there on his (defendant’s) account; that instead of making the shipment to St. Marys as he was directed, or as he agreed to do, he shipped to Indianola, Texas.</p> <p>It appears that the net proceeds of the sale of the cargo of lumber at Indianola was the sum of two hundred and three dollars and ninety cents, while the defendant testified that the value of the lumber at Pensacola, the point of orig-8 inal shipment, and the place of residence of the plaintiffs for business purposes, was some eight hundred dollars. The court in its finding and assessment of damages awarded to defendant the value at Pensacola, and allowed this as a set-off to the claims.</p> <p>The court found for the defendant in the sum of seven hundred and fifty-eight dollars and sixty-nine cents. There was a motion for a new trial by plaintiff, which being denied, a judgment was entered for the sum mentioned. To that judgment this writ of error is prosecuted, and the error here assigned is the overruling of that motion.</p> <p>The grounds upon which the motion was based in the Circuit Court were—</p> <p>First—Because the finding of the court was contrary to the evidence.</p> <p>Second—Because it was contrary to the law.</p> <p>Third—On the ground of newly discovered evidence.</p> <p>Fourth—Because the plaintiff was taken by surprise in the introduction of evidence which he could not anticipate, and ■which he is prepared conclusively to refute.</p>

This is an appeal from the Circuit Court for Jackson county. The appellant was indicted and convicted of the crime of murder. The case is sufficiently stated in the opinion of the court.

Thomas Dixon was indicted for and convicted of murder in the first degree in the Circuit Court for Duval county. He moved an arrest of judgment on the following grounds: “First. There was no legal arraignment of the prisoner. “ Second. The court erred in excusing all the regular panel but one juror, thereby compelling the defendant to choose the remaining eleven jurors to try him, from talesmen and bystanders. “ Third.

Thomas Dixon was indicted for the murder of Ignatio Andrea, at Jacksonville, Duval county, on the 7th day of April, 1869, by assaulting him with a knife, of which wound-'. jng Andrea died on the 14th day of said month. The accused was tried at the Spring Term, 1869, of the Circuit Court for Duval county, and convicted. Upon appeal, the judgment of the Circuit Court was reversed, and a new trial awarded.

James E. Collins, the defendant in the court below; was indicted in 'the Circuit Court for Alachua county for “ receiving stolen goods, knowing the same to have been stolen.” He was convicted and sentenced to imprisonment, at hard labor, for the term of three years. To this judgment he now prosecutes this writ of error.

The appellant was indicted by the grand jury of Yolusia county, for exercising the powers of a Justice of the Peace, without having observed the legal pre-requisites of qualification by taking the oath, &c. The indictment was found after the adoption of the constitution of 1868. Appellant was tried before the Circuit Court, found guilty, and sentenced to pay a fine, that being the penalty prescribed by law for the offence charged; from which judgment he appeals.

<p>Error to the Circuit Court for the county of Yolusia.</p> <p>The case is stated in the opinion of the court.</p>

Moses E. Barber and others were jointly indicted by the grand jury for Orange county, at the Fall term of the circuit court, 1869, for the false imprisonment of one George Bass.

<p>Error to Circuit Court for Orange County.</p>

<p>1. State officers, in a general sense, are officers whose duties and power* are co-extensive with the territorial limits of the State. County officers, in the same sense, are those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed, who are appointed in and for a particular county, and whose duties concern more especially the people of that county.</p> <p>3. The “ support ” of an officer is derived from the emoluments of his office, which consist of fees or per diem. Each county must pay the fees or per diem provided by law for its officers.</p> <p>S. Wherever the constitutiou imposes a duty upon a county, the county-must pay the compensation of all officers employed in the discharge of the duty imposed, as well as all expenses incident thereto.</p> <p>4. In all cases where there is no constitutional provision making an expense chargeable to the county, it must be for a county purpose in order to justify the legislature in authorizing a county to resort to taxation to defray it.</p>

<p>Article V, Sec. 16, of the Constitution of the State of Florida provides that “the Legislature shall have power to provide for issuing State bonds, bearing interest, for securing the debt of the State, and for the erection of State buildings, support- of State institutions, and perfecting public works.” Held, That the term “ public works ” refers to the incomplete system ot internal improvements authorized by an act to encourage a liberal system of internal improvements, approved January 6,1855. The internal improvements designated by this act, as proper subjects of State aid, and which were not perfected or completed at the time of the adoption of the Constitution of 1868, are the public works to perfect which the Constitution empowers the Legislature to issue bonds.</p>