Volume 2 — Florida Reports

moved the Court, that this Writ of Error be dismissed. 1st. Because plaintiff in error (who was original plaintiff) had not, at the time of suing out the writ, paid costs. 2nd. Because the plaintiff in error had not given a bond for costs, in such case provided by law. * stated : He did not know that costs had been paid, but thought it probable that, pursuant to a general understanding between the Clerk of the Circuit Court and himself, the costs had been charged to him.

This cause was tried in the Leon Circuit Court, before Judge Baltzell, and comes up on Writ of Error. A full statement of the case is given by the Chief Justice, who delivered the opinion of the Court. If the judgment of the Court upon the motion in arrest was incomplete on the record, amendments at any time would be allowed to complete and perfect it, there being that in the record to amend by.

<p>Where the plaintiff in an action of Assumpsit, filed a replication to one of several pleas of defendant, and, afterwards, by leave, filed an amended replication, to which the defendant demurred, and the Court sustained the demurrer ; and where, on motion of the plaintiff, the judgment "on the demurrer was set aside, and the plaintiff permitted to have a trial of the issue made by the original replication, as well as of the other issues in the cause. Held:</p> <p>That the plaintiff cannot now be heard to complain that the demurrer to said amended replication remains undisposed of, or to insist upon any matter in relation to it as error, the judgment upon it having been set aside at his instance, to enable him to submit the matters of fact in his case to a jury, and he having pleaded over for that purpose.</p> <p>If he intended to rely upon this objection, he should have permitted the judgment to stand, and assigned it as error.</p> <p>And although error should appear upon the record, yet if, in distinct pleadings, a complete bar is shown to the action, the judgment for defendant must be affirmed.</p> <p>Where there are several issues, requiring proof on the part of the plaintiff to sustain them, and a verdict upon them was rendered for defendant, and there is no bill of exception, to show on what grounds it was rendered, the Court will presume the verdict to be right, and will sustain the judgment entered upon it.</p>

<p>The Territorial act of Feb. 12,1836, entitled “ an act to amend an act regula. ting the mode of suing out writs of error and prosecuting appeals in the Territory of Florida, passed February 8,1832,” is not repugnant to the 5th Sec. of the act of Congress approved May 15,1826, entitled “ an act to amend the several acts for the establishment of a Territorial Government in Florida</p> <p>The act of February 12, 1836, is restraining and prohibitory. What was be. fore a writ of right, is no longer so to original plaintiffs. They are not entitled to a writ of error unless theyjtrsf pay all costs incurred in the court 'below, and give bbnd as required by the statute.</p> <p>Fil ing money in court to be substituted for the personal security required in the plaintiff’s bond under that act, will not meet the requirements of the act.</p> <p>The powers of an attorney at law do not extend to the execution of a bond for his client.</p>

Writ of error to Leon Circuit Court. In Nov. -1845, Richard Hayward filed a petition against David C. Wilson administrator of James Lunn deceased, under the statute regulating the foreclosure of mortgages approved December 11, 1824, setting forth in substance — that on the 4th June, 1840, Lunn executed a mortgage to Robert K. West, of a certain lot in Tallahassee, to secure the payment of $5000 due from Lunn to West on five several promissory notes, bearing date with the…

Daniel McCabe, in 1844, filed his bill in Equity in the late Gadsden Superior Court, against James Lanier, Thomas Hodgson, and Benjamin C. West, alleging that James Lanier, in 1841, became indebted to complainant, and being unable to otherwise extinguish his debt to complainant, transferred in payment a note dated 31st March, 1841, payable on 1st January, 1842, to defendant Lanier for the sum of $258, with interest from date, and signed by C. Harris, who describes himself as…

<p>The common law did not give damages in replevin to a defendant, and the Slat. 7, Hen. 8, ch. 4, and 21 Hen. 8, ch. 19', only gave damages to avowanter or other persons making connusance or justifying as bailiffs in replevin for rent or services, and have not been extended to defendants claiming property.</p> <p>Under the plea of “ non cepii” in replevin evidence of damage on the part of the defendant is not admissable in any case.</p> <p>This plea admits the property of the thing taken to be in the plaintiff, and if the defendant means to dispute the question of property he must plead specially.</p> <p>The property being by this plea admitted to belong to the plaintiff, it results as a matter of course, in the absence of all proof to the contrary, that the taking and carrying away of the property was wrongful.</p> <p>The defendant cannot have a judgment oí retorno hdbendo on a verdict in his-favor upon an issue joined on aplea of non cepit.</p> <p>Where the jury wore sworn to try the issue joined and there was in fact no* issue, and judgment upon the verdict was entered, the statute of jeofail docs not cure the error and the judgment must be reversed.</p>

This was an action of assumpsit by defendant in error, to recove!-of plaintiffs in error, for professional services alleged to have been rendered to them by John L. Doggett (the plaintiff’s testator,) as an attorney at law.

This case was tried at the Circuit before Judge Baltzell.— The facts of the case are fully set forth in the opinion of the Court, delivered by the Chief Justice. 1. The whole record is before the Court. 6 liar. & Johns. 81. 2. Wm. C. Miller was incompetent from his interest in the event of this cause.

Writ of Error to Escambia Circuit Court. The case is stated in the opinion of the Court. The evidence proposed to be offered to the jury, and which the Court below ruled out, was opposed upon the following grounds: 1. The incapacity of Masot, the Governor of West Florida, to make a valid grant.

<p>Error to the Jefferson Circuit Court.</p>

<p>Where notes had been given by a husband for materials and merchandize, used and employed for the benefit of the separate estate of his wife, and for her support and maintenance, and judgments had been recovered on the notes against the husband, and executions had been returned “ no property found,” Held, on bill filed for that purpose by these judgment creditors, that the separate estate of the wife was liable in equity for the payment of these claims.</p> <p>Had the husband paid these demands, he would have been entitled to be re-im-bursed out of the separate estate, and the creditors are entitled in equity to the same equity, the husband being insolvent.</p>

This was an action of debt against Filyau and his wife, the latter being heir at law of W. D. Harrison, who had become security on the guardian bond of R. L. Harrison, guardian of Edward Mash-burn, a minor.

<p>A cause in Chancery cannot bo brought to this Court by Writ of Error.</p>

Writ of Error to Franklin Circuit Court. The facts of the case precede the opinion delivered by the Chief Justice. contended: That the Judge who granted the order on which the judgment was entered, did not possess any right to exorcise jurisdiction as a Judge of the Circuit Court, in the county of Franklin, on the day on which he made the order. The Constitution has given power to the Legislature to pass laws requiring the Judges to alternate.

Motion to vacate the judgment heretofore entered in this cause in this Court. The grounds of the motion are stated in the opinion.

The Court erred in refusing to admit the award in evidence and in deciding that it was void upon its face. « The award of the umpire Argyle is a valid… Held: 4 Dallas Reports before cited. Yet giving 4 T. R. 589 full, power, it was in a case of rule of Court, where as I have shown the Courts are disinclined to set aside awards on motion, and all the Court did was to refuse to set aside on motion. Mr. Kyd’s opinion is not sustained by either English or American authorities.

Writ of Error to Leon Circuit Court, where this cause had been tried before Judge Baltzell. The facts fully appear in the opinion of the Chief Justice.

Writ of Error to Leon Circuit Court: The action below was by scire facias, to revivo a judgment rendered in the late Leon Superior (Territorial) Court on 21st November, 1842, in favor of Joseph F. C. Harley, and against David Brown, for $1,483.

Writ of Error to Leon Circuit Court. William D. Moseley and Martha Ann Manly, administrator and administratrix de bonis non of Samuel Parkhill, and Hiram Manly, in right of his wife, (said Martha,) administrator de boms non, at the Spring Term (1846) of Leon Circuit Court, instituted an action of trespass against John G. Camp, for seizing a large number (180) of slaves.

<p>A grant of administration in this State to the husband by virtue of his mari. tal rights upon the estate of the wife, she being a non-resident at the time of her death, and dying in another State, but entitled to effects and property in this State, is valid under our laws.</p>

The appellees as administrarira de horns iron, instituted an notion of detinue, against the appellant in Leon Cireiii; CWri to l-movc sundry slaves in the possession oi dcibadant below, alleged to ho the property of Samuel Parkhill, deceased. The declaration contains two counts in usual form — one alleging a delivery by plaintiffs and a detention after demand — the other a finding by defendant and a like detention. The defendant pleaded three pleas: 1. Non detinet. 2.

This case comes up by Appeal from Decree rendered pro forma in Chancery in Escambia county, upon bill filed by heirs of George L. Fauntleroy against Charles LeBaron his administrator, and Walter T. Colquitt who intermarried with the widow of George L. Fauntleroy .* The facts of the case and the pleadings appear in the following agreed state of facts and pleadings, and in the opinion of the Court:— The following facts are admitted and agreed upon in this cause: 1st. On the…

This cause was argued at the last term, and also a second time at this term, when the judgment of the Court below was affirmed by a… Held: that Robert as executor, with his securities, was not bound ; but that Robert was bound as guardian, on the ground that when he chose to consider the bond as money in his hands, (which ho had the right to do,) he was instantly chargeable with it as guardian, because it being his duty instantly to pay it over to himself as guardian,…

Thadeus D. VanHorn, in right of his wife, Mary Ann, daughter of Daniel Faust, deceased, with others, also children of said Daniel, filed their bill in Chancery against Mary Ann Osborne, (formerly Mary Ann Faust, widow of said Daniel,) administratrix of Daniel Faust, and Joseph C. Osborne her present husband, for an account of the administration, and distribution of the surplus.

Writ of Error to Hamilton Circuit Court. Joseph B. Watts, administrator of Thomas T. Clardy, brought suit in Hamilton County in detinue against James M. Clardy for the recovery of certain slaves named in the declaration, and alleged to be detained by defendant.

The plaintiff brought assumpsit against defendant, and in his declaration sets forth substantially, that on the 15th January, 1847, one Fielding A. Brown was possessed of certain lots in Key West by deed from one John Barcroft, trustee of the plaintiff, and that Bareroft as trustee held a lien on the same hy mortgage executed hy Brown for the purchase money. That Brown conveyed parts of two of said lots (4 and 5 in Whitehead’s plan of said city) to defendant.

Jesse H. Willis, plaintiff, in an execution against the executors of Alfred M. Gatlin, upon motion, obtained a rule in the Leon Circuit Court, against Alfred A. Fisher, Sheriff, John S. Shepard, assignee of the Union Bank of Florida, and William D. Moseley, plaintiffs in other executions in the same Court, against the executors of Gat-lin, to show cause instanter, why the said Sheriff should not pay , over to the attorneys of the said Willis, certain moneys arising from a…

<p>An appeal is the only proper method whereby to bring up a decree in Chancery to this Court, for review and revision. A Writ of Error will not lie in such caso.</p>

This case was brought up by writ of error from Jackson Circuit Court.

William Curry, being an auctioneer in the County of Monroe, instituted a suit in the Circuit Court of that county, to recover from William Marvin, the defendant, the sum of eighteen dollars and twenty-nine cents, being one per cent, on the sum of eighteen hundred and twenty-nine dollars, the amount of sales of certain lots belonging to defendant, and sold for defendant by plaintiff.

This case came up on writ of error from Jackson Circuit Court. An action of debt was brought in that court by Christopher C. Cobb, administrator de bonis non of James W. Exum, on the instrument stated and set forth in the opinion delivered by the court, against Philip Comerford, the plaintiff in error in this Court.

This cause was heard at the Fall Term of the Circuit Court of the Middle Circuit in the County of Leon, the Hon. Thomas Douglaí presiding. The proceedings in the case in the court below are fully and clearly stated in the opinion delivered by this Court. The declaration contains three special counts, and tlie money counts.

The jury found a special verdict, which is recited at length in the opinion pronounced by the court, and which sets forth the facts of the case. Upon this finding, the court below, Judge Baltzell presiding, held the law to be for the plaintiff, and gave judgment accordingly — from which judgment, defendant appealed.

The Appellants, Post and Wilson, sued out writs of attachment against property belonging, to William S. Carpenter, an absconding, debtor. Other creditors also commenced suit by attachment against the said Carpenter, but the writs sued out by Appellants were first levied.

The plaintiff, Dorman, brought an action of assumpsit to the Spring Term, 1848, of the Circuit Court for the County of Duval, against Hart, the defendant below. The suit was founded on a promissory note, on which partial payments had been made, and the interest was calculated according to the rule laid down in the opinion of the court, and the payments applied according to that rule.

The record in this case shows the following state of facts : The parties on the 13th of April, 1847, mutually executed bonds, and agreed to submit all matters in controversy between them to arbitrators, to be indifferently chosen by them, which was done. On the 23d of April of same year, the arbitrators, so chosen1, made an award — by which, among other things, they awarded to O’Bryan, the appellant, the sum of four hundred and seven dollars and ninety-seven cents.

Marvin and Martin, in the year 1844, filed their bill of complaint in the late Superior Court of St. John’s County, against Mary Eliza Read, Teresa Bellamy Read and Richard H. Bradford, administrator of the estate of Leigh Read, setting forth and showing that, on the 12th day of March, eighteen hundred and thirty-nine, the said Marvin was seized and possessed of three thousand five hundred acres of land, being a part and portion of an undivided tract of four thousand acres,…

At a Circuit Court, held in and for the county of Jefferson, Middle Circuit of Florida, on the 29th day of November, 1848, the Grand… Held: the said John F. Stafford, in and upon the head of him, the said John F. Stafford, then and there feloniously, wilfully and of his malice aforethought did strike, and beat, and wound, giving to the said John F. Stafford, then and there with the wooden stick aforesaid, in and upon the head of him, the said John F. Stafford, one mortal…

The plaintiffs in error brought an action of debt against the defendants at the Spring term, 1846, of the Circuit Court of the County of Leon, upon a bond made by defendants, jointly, for the payment of the sum of thirteen hundred dollars. To this bond there was a condition which is recited in the opinion delivered by- the Court. Richard H. Crowell, one of the defendants, was not served with process.

This was an action of trespass, brought in the Circuit Court of Leon County, by McRaeny, Trustee of Rebecca C. Williams, against William Johnson, Daniel Johnson, Wormley R. Moore and James G. Wells, claiming damages for a trespass which was alleged to have been committed by defendants, and which consisted in assaulting and beating a certain slave of plaintiff, so that he died. Defendants pleaded not guilty.

This cause was tried at the Spring Term of the Circuit Court, sitting in and for the county of Jefferson, in the year 1845, the Hon. ■George S. Hawkins, Judge, presiding.

This was an action of assumpsit brought in the Circuit Court for the County of Leon by McDougal, Administrator of Joseph W. Lea, against Andrew J. Lea, Executor of John Williams Lea, deceased. The cause of action, as set forth in the declaration, was an account for money, paid, laid out and expended by plaintiff’s intestate, to and for the use and at the special instance and request of defend- . ant’s testator, in Ms life time.

The plaintiffs in error, who were also plaintiffs in the Court below, brought their action against Richard H. Crowell, Edward Bradford and Richard Bradford, in the late Superior Court of the County of Leon, on a joint obligation signed and sealed by defendants. — ■ Three separate praecipes were filed by the attorney for plaintiffs, directing the clerk to issue three separate writs of summons ad respon-dendum against the defendants, which was accordingly done.

This was an action of assumpsit, brought by Jordan against John B. Doggett and Henry Doggett, in the Circuit Court of Leon County, claiming the sum of one thousand dollars, for services as an overseer, alleged to have been rendered the defendants in the years 1843 and 1844, at a plantation in Leon County, called the Black Creek plantation.

This was an action of trespass, instituted by the appellee in the Circuit Court of Leon County, at the Spring .Term, 1847, for the purpose of… Held: or is now held, and after the lapse of time, the jury may infer that that duty was performed. That the bequest of the will imposes a duty and trust, and the presumption of law is, that it has been performed. That a fraudulent disposition, in opposition to and in defiance of the will, would not confer a right on defendant.

Writ of Error to Gadsden Circuit Court. This was an action of replevin, brought by Meacham, as executor of Thomas, in the Circuit Court of Gadsden County, against Lott, for divers slaves.

At a Circuit Court, held in and'for the county of Gadsden, on the 16th day of November, 1848, the following decree was entered in this case : “ And now, on this sixteenth day of November, came the said complainants and defendants, by their respective solicitors and counsel; and thereupon it was agreed by counsel, that a decree pro forma shall be entered, sustaining the demurrer filed herein — so as not to exclude the Judge of this Court from sitting in this cause in the…

<p>Writ of Error to Leon Circuit Court.</p> <p>This case, and the question involved in it, are fully stated in the opinion of the Court.</p>

An action of assumpsit was commenced by Gibson against Love in April, 1846. The plaintiff’s declaration contained a special count setting forth that he and defendant were joint and several sureties for one John C. Love, on his bond as executor of John Colson, deceased, which bond was given in 1839, for $18,000, conditioned for the faithful discharge of the duties of executor by the said John C. Love.

The case was this: An action of assumpsit was brought by Elizabeth Chappell, a minor, by her next friend, Thomas Monroe, for the hire of certain slaves belonging to the estate of the said minor.— The declaration contained but one count in “ indebitatus assumpsit’> for the work and labor of the said slaves. To this count the defendants who were sued as the surviving partners of a firm doing business under the name of the “ Quincy Steam Saw Mill Company,” pleaded — 1.

The following statement of this case was made by the Court before proceeding to announce its decision: . Held: in the case of a mortgage payable by instalments, if the whole mortgaged property is foreclosed and sold to satisfy the first in-stalment, subject, however, to the lien of the future instalments, the property is, in the hands of the purchaser in equity, the primary fund for the payment of the future instalments.

On the 31st March, 1846, the Union Bank of Florida instituted suit in Leon Circuit Court against Martha Ann Manly, administratrix, (and Hiram Manly, in right of his wife, administrator,) and. William D. Moseley, administrator de bonis non of Samuel Parkhill, deceased, to recover the amount of a sealed note of defendant’s intestate, of* which the following is a copy: “ Dolls. 94,182 22-100.