Volume 3 — Florida Reports

The plaintiffs in error sued out a writ of attachment which was levied by the sheriff of Wakulla County upon about seventy bales of .cotton as the property of Wm. S. Carpenter, an absconding debtor. On the same day, but after the levy of plaintiffs’ attachment, several other creditors of Carpenter attached the same cotton. The cotton Was sold by order of the Court, and the money, the proceeds of sale, was paid into the registry of the Court.

Mitchell, the defendant in error, brought an action of debt in the Circuit Court of Escambia County, on a bond executed by the plaintiff in error, together with J. N. C. Stockton & Co. and Hanson Kelly, and dated the 13th of January, 1840.

This cause was tried before the Hon. Thomas Baltzell, Judge of the Middle Circuit at the spring term, 1849, of the Circuit Court of Leon County. The pleadings, evidence and instructions given by the Judge in the Court below, are set forth in the opinion pronounced by Ch. Jus. Douglas so fully, that it is not deemed necessary to make any other statement of the case.

This case comes up by appeal from a judgment of the Circuit Court of the County of Leon rendered at the spring term, 1849, Judge Baltzbm. presiding. The facts of the case and the pleadings are stated in the opinion delivered by the Court, affirming the judgment of the Court below.

AppeaJ. from a judgment rendered at the spring term, 1849, of the Circuit Court of the County of Monroe, the Hon. Joseph B. Lancaster, Judge of the Southern Circuit, presiding, on the trial of the cause in the Court below.

This cause was brought up by appeal from a decree of the Circuit Court of Jefferson County, made November 8th, 1849, by the Hon. Thomas Baltzell, Judge, sitting in Chancery. The facts of the case are so fully and clearly set out in the opinion pf this Court, pronounced by Justice Lancaster, that any other statement is deemed unnecessary.

Thomas Baltzell, Judge of the Middle Circuit, at the Fall Term, 1849. Henry Laverty, who was complainant in the Court below, on the 3d day of June, 1844, filed his bill against Banks Meacham, administrator, and Oscar Fillyau and Adna, his wife, heirs and distributees of William D. Harrison, deceased, to recover of his estate the amount of a partnership debt of the said Harrison and one Wilder, who were in the life-time of Harrison, partners in trade.

This cause was tried at the Spring Term, 1849, of Franklin ■‘County Circuit Court, before the Hon. George S. Hawkins, Judge ■of the Western Circuit. The facts were these : Gray was security ■on a forthcoming bond, given by one Tobey, whose slaves were levied on, for a debt of $4,000, and replevied. The slaves were snot forthcoming on the day of sale ; the bond was returned forfeited, and execution was issued against Gray, whose property was levied on, and advertized for sale.

Jasper Strong filed his bill in the Circuit Court of Escambia County, against George Willis, Mary B. Dallas, Alexander J. Dallas, Jr., Byrd C. Dallas and Henrietta C. Dallas, alleging and setting forth — That, in the summer of the year 1838, he entered into a verbal contract with Alexander J. Dallas, since deceased, whereby it was agreed that he should erect and finish a dwelling house for the said Dallas on lot number 276, in the City of Pensacola; that he should keep an…

On the trial of this cause in the Court below, at the Fall Term, Hon. Thomas Baltzell, Judge of the Middle Circuit, presiding, the same issues were tried that were presented and tried on a former trial between the same parties at the Spring Term, 1847, of said Court..

[After the decision of the foregoing case of Mitchell vs. Cotten, and on the last day of the term of the Court, the counsel for appellee filed a petition for a rehearing in said cause, assigning therefor, in substance, the following reasons :] 1st. That the Court erred in deciding that the matters and things and defence set up in the sixth plea did not constitute a bar to the plaintiff’s right of recovery: 1st. Because at the first trial of said cause, the said sixth plea…

<p>The act of November 10th, 1828, requires that a scire facias or action of debt against executors or administrators, or other persons having charge of the estates of deceased persons, upon any judgment against their testators or in-testates, shall’ be brought Within five years from their qualification, All such judgments, after the expiration of five years from the qualification of the executors, administrators, &c., are presumed to be paid, unless some proceeding shall have been had in- the intermediate time.</p> <p>It is not necessary to state in a plea of this statute, that no proceeding had been taken within that time. To avoid the bar; it is necessary for the plaintilf to show such proceeding.</p> <p>The 18th chapter of 13th of Edward 1st, which gives the elegit, is not in force in this State, because it is inconsistent with the statute of this State which provides for the sale.of land on execution. But the chapter which gives the writ of scire facias is in force here by virtue of the act of November 6,1829, adopting the common and statute laws of England, which are of a general and not local nature, with certain exceptions and provisions.</p> <p>A judgment at law, or a decree in equity, is a lien upon the lands of a debtor which binds from its rendition. This lien is not lost by the death of the debtor, but it continues only upon the compliance by the creditor with the provisions of the laws regulating the exhibition and enforcement of demands against the estates of decedents.</p> <p>Lands are assets, under the laws of this State, and it is the duty of the executor or administrator, in case there should be a failure of personal assets, to make application in the mode pointed out by law, for the sale of the lands. This is not a matter of discretion with him.</p> <p>Upon the death of the ancestor, the fee vests in the heir, but he takes it subject to the payment of debts.</p> <p>Lands being held to be assets in this State in the hands of the personal representatives, it is necessary in a proceeding by scire facias against the heirs and terretenants to make the executor or administrator of the deceased, a party. It is questionable whether it is necessary to make the heirs and terretenants parties to a proceeding by scire facias to subject the lands. Unless they can be regarded as persons in charge of the estate and the lands in their hands assets, they are not properly made parties.</p>

<p>Appeal from decision of the Circuit Court of the County of Leon, made at the Fall Term, 1849, awarding a mandamus against the. Comptroller.</p> <p>The facts of the case ave sufficiently stated in the opinion of the Court.</p>

Judgment was rendered in the Court below in this case in favor-of the defendant in error, at the Spring Term, 1849. The question upon which it was brought up by writ of error to-this Court, is one altogether of pleading and practice, and disconnected from the merits of the case. The nature of the question presented appears in the opinion of the Court.

The nature of the proceeding in the Court below, of the defence set up, and all matters necessary to be stated, are set out at length in the opinion pronounced by this Court.

The material parts of the bill, answers, exhibits, report of the master and proofs in the cause, are set out in the opinion pronounced by the Court — from which the following statement of the case is detached and inserted here: “ This is a suit in Chancery brought up by appeal from a decree of the Circuit Court of Leon County.

<p>A note made payable to the agent of a corporation, may be sued in the name and on behalf of the company, if it is proved to be the property of the corporation.</p>

On the 22d December, 1839, Leigh Read and Archibald R. S. Hunter entered into an agreement for the sale and purchase of land, negroes and other property, amounting to $27,500. On the 2d of January, 1840, Read executed a title bond for the land, conditioned to make title on the 1st of January, 1843. The land and negroes sold to Hunter by Read were mortgaged to the Union Bank of .Florida, by deed of mortgage bearing date September 3, .1839.

<p>■Where a guardian, or any other person acting in a fiduciary capacity, transfers an obligation securing the payment of money to a third person, and it is manifest on the face of the paper that minor heirs or cestui que trusts are interested in the fund secured to be paid, a Court of equity will follow the fund into the hands of the assignee, or interpose to prevent its payment to him. And this is done on the familiar and well established principle, that trusts are not only enforced against those persons who are rightfully possessed of the trust property as trustees, but against all persons who come into possession of the property bound by the trust with notice.</p>

This was an action of detinue for the recovery of a slave, brought in the Circuit Court of Duval County. The jury, under the instructions of the Court, returned a verdict for the plaintiffs, and the defendant brought the case to this Court by writ of error. The nature of the case — the points ruled by the Court below — the instructions given — and the testimony of the witnesses, are set out with precision and exactness, in the opinion delivered by a majority of the Court.

On the 17th day of July, 1847, Charles Barnard, Abel Adams, George M. Barnard and Charles Larkins, merchants, trading as Barnard, Adams & Co., filed their bill for relief and discovery in the Circuit Court of Jefferson County, against William D. Moseley, Daniel S. Graham, George W. Gelzer and William J. Bailey, administrator de bonis non of Abram Bellamy, deceased — setting forth and showing that complainants, on the 4th day of November, 1845, in the Circuit Court of…