Volume 4 — Florida Reports

Thomas Baltzell, Judge of tbe Middle Circuit of tbe State of Florida, made on the •20th of June, A. D., 1850. To the bill of complainants in the Court below, Betton filed a demurrer — among other causes stated, for want of proper parties. The demurrer was overruled by the Judge on the 29th day of December, 1848, and the defendant had leave to answer by the first Mondaj in February thereafter.

<p>As respects third persons, a man who lives with a woman, and holds her out as his wife, is estopped from denying it, when charged with liabilities as her husband, but such recognition cannot affect the rights of property even as between themselves.</p> <p>The executor of a person who has recognized a woman as his wife, is not estopped from' setting up and asserting the illegality of the marriage, where it was absolutely void, as where there existed a civil disability to contract marriage. The marriage being void, no civil rights can be acquired under it, and it is competent for the executor, representing the interests of distributees and creditors, to impeach its validity.</p> <p>The act of Congress, approved March 30th, 1822, by which the Territorial Government of Florida was organized, and the several acts amendatory thereof, are to be regarded as the Constitution of the Territory, differing, however, from the Constitutions of the State Governments in this — that the former contain grants of power, while the latter are restrictions of power primarily possessed.</p> <p>By the organic law, the judicial power of the Territory was vested in two Superior Courts, &c., and the legislative power in a Governor and Council, and this power was to extend to “ all rightful subjects of legislation.”</p> <p>An act of the Legislature which undertakes to determine questions of fact and law, affecting the rights of persons, or of property, is judicial in its character, and is not, therefore, a rightful subject of legislation. And though the facts and reasons alleged in an act of divorce are such as, by law, would warrant the sentence or decree, yet the inquiry into those facts and reasons, is judicial in its nature, and the determination upon them is a judicial act.</p> <p>The act of the Legislative Council, passed in 1828, gives to the Courts jurisdiction in cases of divorce.</p> <p>The Legislative Council had no power or authority, after the act of 1828, to take jurisdiction of, and decide questions of divorce, and to pass an act dissolving the marriage contract between two persons, lawfully made and entered into — nor was the power or authority possessed by the Legislative body either before or after said act.</p> <p>Marriage is.a contract, in the strict, legal definition of the term, and a law dissolving the marriage relation, impairs the obligation of the contract, and is in conflict with the Constitution of the United States, and is, therefore void.</p>

This was an appeal from a judgment of the Circuit Court of Gadsden County, Hon. Thomas Baltzell, Judge of the Middle Circuit, presiding, rendered at the Spring term,, A. D., 1850. The case is fully stated in the opinion of the Court. Judge- Baker, of the Middle Circuit, sat in the place of' Justice- Thompson, who had been of counsel in the- case in. the Court below.

This case was decided in the Court below, by the Hon. Thomas Baltzell, Judge of the Middle Circuit, sitting in and for the County of Gadsden, on the 20th of November, A. D., 1850. The demurrer of defendant to complainant’s bill was sustained, and the bill dismissed, and from this decision, an appeal was taken. The case is fully stated in the opinion delivered by the Court, affirming the opinion of the Court below.

This was an action brought by Allen, in the Circuit Court of the County of Leon, against Holbrook and Archer, Assignees of the mercantile firm of Lloyd & Flagg, who failed' in 1849. The suit was founded on two bills of exchange-drawn upon and accepted by Lloyd & Flagg, prior to their' failure. Judgment was rendered in favor of the plaintiff below at the Fall Term of the Circuit Court of Leon County, in the year 1850.

<p>The declarations of a party, made at the time of a transaction, and expressive of its character, motive, or object, are indicative of a present purpose and intention, and are admissible in proof, like any other material facts.</p> <p>Letters written and. sent by a principal to his factor, with the goods consigned to his care, are indicative of the purpose and intention of the principal in regard to them, and are admissible in evidence, to show the instructions and orders given to the factor, or agent.</p> <p>An instruction or charge given by the Court, which has nothing to do with the issue produced by the pleadings, is erroneous. The jury should respond to the issue of fact made by the pleadings. An instruction or charge, therefore, which is outside the case, having a tendency to mislead or divert the minds of the jury from the true matter in controversy, is good ground of reversal.</p>

On the 23d day of January, 1849, the account of Kidder M. Moore and John C. Montford, executors of the last will .and testament of William Turner, deceased, filed as to the Spring Term of the Court of Probates of the County of Leon, was examined by James E. Broome, Judge of Probate of said County.

This cause was decided at the January Term, 1850. See 3d Florida Reports, 215. The defendant in error filed a petition for rehearing, which, for want of .time, was not considered at that term.

The record in this case shows the following state of facts and proceedings in the Court below, viz : William Williams, on the 14th November, 1842, obtained judgment against James Lanier, Robert L. Harrison and Uz Wood, for $1,328 10, in tbe late Superior Court in Gadsden County.

<p>An estate in remainder may be limited after a life estate in personal property by will, and effect should bo given to the intention whenever it is manifest that such estate was designed to bo created.</p> <p>The legal estate in a chattel bequeathed by will remains in the executor until he assents to the legacy ; and when there is an estate in remainder created by the will, the assent to the estate for life will enure to the benefit of the remainder-man.</p> <p>T. bequeathed the whole of his personal estate to his wife for life, and directed that at her death the whole of his property, real and personal, should be sold and equally divided between his six children: — Held, that it was clearly the intention of the testator that his children should not take the property in specie, but that the title to the property, on the expiration of the life estate, vested in the executor, as remainder-man, in trust, to bo sold by him for the benefit of the children ; and the exercise of the power of sale in such a case, unless otherwise directed, belongs to the executor exclusively, virtute officii.</p> <p>When there is a trust reposed in an executor, and a power of sale coupled with it in order to execute the trust, it is not competent to the Court of Probate to discharge the executor until it appear that he has performed the duly.</p>

This case was brought up by appeal from a decree of the ■Hon. Thomas Douglas, Judge of the Eastern Circuit. A similar decree was made by the Judge in the Court below, in the cases of Benjamin A. Putnam and Henry G. Marquand against Joel B. Smith, tax assessor, from which, also, appeals were taken by the complainants, and questions involving the same principles brought up for the decision of this Court.

Luke W. Smithwick brought an action on the case, in the Circuit Court for the County of Leon, against Joseph Dawkins, to recover damages for deceit practiced by defendant in an exchange of horses — -the horse of defendant being represented to be sound when, in fact, he was diseased at the time, and continued so to be, so that he was of no value to plaintiff. The exchange was alleged to have taken place on the first day of July, 1849.

On the 6th day of January, 1851, Robert W. White filed in the office of the Clerk of the Supreme Court the following petition : To the Honorable the Supreme Court of the State of Florida: The petition of Robert W. White, of Jefferson County, in this State, respectfully showeth unto your Honors, that, on the 9th day of December, A. D. 1850, he purchased of David S. Walker, Register of Public Lands for the State of Florida, the west half of the southeast quarter of section…

<p>The nature and object of the petition filed in this case, the grounds of the application, and of the argument of counsel for defendants in opposition to the motion, are fully stated in the opinion of the Court.</p> <p>Judge Baker sat in the place of Anderson, Chief Justice, who had been of counsel in the case.</p>

The plaintiffs- in error brought an action of covenant •against N. II. Mitchell, in the Circuit Court of Walton County, upon the following instrument, signed and sealed by said Mitchell: Territory of Florida — Washington County.

Nicholas Mitchell brought an action of covenant in the Circuit Court of the County of Jackson, against the President, Directors and Trustees of the St. Andrew’s Bay Land Company, upon a certain indenture or memorandum of an agreement signed and sealed by Richard H. Long, William Nickels and Allen H. Bush, who were alleged to be a committee of, and acting for, and duly authorized by, the St. Andrew’s Bay Land Company.

Benjamin Megin filed his bill in the Circuit Court of the Southern Circuit for the county of Monroe, against Thomas Taylor, Philip Sawyer and James Filor, alleging that he was a creditor of Taylor, one of the defendants ; that Taylor in 1843 purchased certain town lots in the city of Key West from Sawyer, and that the latter conveyed said lots to Filor, in trust for the infant daughter of Taylor; that this transaction was in fraud of creditors, one of whom was the…

<p>Where it is to be inferred from tbe pleadings and issues in a cause, tbat the jury ■passed upon the true merits of the case, and where it is clear that the setting aside of the verdict would be of no benefit ultimately to the party seeking it, the verdict will not be disturbed, on account of mistakes in pleadings, or where it is questionable whether a particular plea is sufficient to present a proper issue.</p> <p>A release executed by J. Wi S., cestui que trust, to F. A. B., of all claims or demands of every nature whatsoever which J. B., trustee, who is in possession of the legal estate, has against F. A. B., on account of a mortgage executed by the latter to the trustee, is not a conveyance of the estate of J. B. Such a conveyance, therefore, is not a compliance with an agreement to convey the interest of J. B., the trustee. This can only be done, if it is a freehold, by deed sealed, or in the case of a chattel interest, signed by J. B. himself, or some one having authority to convey for him, to seal for him, or to sign for him.</p>

This case was brought up by appeal from a judgment of the Circuit Court of the County of Gadsden, given at the Spring Term, 1850. The opinion of the Court contains a full statement of the case.

George S. Hawkins, Judge of the Western Circuit. The decree appealed from was made in a cause wherein Samuel C. Bellamy was complainant, and Edward C. Bellamy and others defendants, and was as follows, viz : This cause came on to be heard at the Spring Term, 1850, of this Court, before the Honorable George S. Hawkins, Judge of the Western Circuit, upon bill, answer of defendant, Edward C. Bellamy, replication, exhibits and proofs taken in this cause, and the same having been…

The Hon. Thomas Douglas, Judge of the Eastern Circuit, •and the Hon. J. Wayles Baker, Judge of the Middle Circuit, sat at the hearing of this case, in the place of Justices Thompson and Semmes, who had been of counsel in the cause.

This case was brought up by appeal from a j'ugdmeut of -tbe- Circuit Court of the County of Franklin, at a Term of the Court in said County held by the Hon. Thomas Douglas, Judge, in the fall of 1848.

A bill was filed by Appellants in February, 1849, to foreclose a mortgage made by defendant to tbe Southern Life Insurance and Trust Company, dated the 20th December, 1841, to secure the payment of $6500, which mortgage was acknowledged by Cole, the respondent, to be his act and deed, for the purposes therein mentioned, and was duly recorded 24th December, 1841.

<p>The opinion of the Court, as delivered by the Chief Justice, contains a statement of the case.</p>

Motion to dismiss appeal from judgment of the Circuit Court of the County of Leon, on the ground that the transcript of the record of the proceedings of the Court below had not been filed with the Clerk of this Court as required by law.

<p>A Statute conferring authority to impose taxes, must be construed strictly.</p> <p>The 32d Section of the Act of 1845, ch. 10, authorises the Boards of County Commissioners to levy a tax upon the same pereous aud species of property as are subject to State tax.</p> <p>The "Legislature, in imposing a tax upon “sales at auction,” does not seem to have had in contemplation either a tax upon the person of the auctioneer, or upon the property sold by him. The tax so imposed is in the nature of a commission upon the amount received by him for sales made, and for which he is personally liable to the State. The Legislature did not design to confer the power of imposing taxes of this sort for County purposes.</p>

This case was brought up by writ of error from the Circuit Court of Leon County, under the following state of facts, viz: 1st. The note or memorandum which was filed as the cause of-action, and offered and read as evidence, was given by defendants to Jl Ií. T. Lorimer, the agent of Geo.

Hon. J. Wayles Baker, Judge. The defendants in error sued in the Court below on an injunction bond conditioned for the payment of the balance due on a certain judgment therein referred to, and ten per cent, thereon The suit was brought after the dissolution of the injunction, for the recovery of ten per centón the amount of said judgment.

<p>, . , xt is a well settled principle of law that where husband and wife rile a joint answer, such answer may not bo read in evidence against the wife, where the subject matter relates to her estate of inheritance.</p> <p>A femme covert is not competent to enter into contracts so as to give a personal remedy against her.</p> <p>When, therefore, a bill seeks to affect the separate property of the wife, through her personally, it should be dismissed. The wife may pledge her separate property’, but in order to charge it, her trustees must be made parties to the bill.</p> <p>There cannot bo a decree in personam against a married woman, oven where she has signed the contract, the specific performance of which is sought.</p> <p>The power of the Courts to reform contracts between attorney and client, is limited to the duty of protecting the latter against the undue influence of the former. Therefore, where a special contract has been entered into, by which the value of the services of an attorney has been fixed and ascertained, Court of Equity cannot interpose to increase the compensation agreed on.</p> <p>The question of title, so for as respects charges and incumbrances, depends upon their character and amount. Upon a reference to a Master, if it should be ascertained that they are of such a character and amount as to enable a vendor to get them in within a reasonable time, the report should be in favor of the title.</p> <p>A Court of Equity ennuot award compensation in damages for injury’ sustained by non-performance of a contract, where the primary relief (specific performance) cannot be decreed.</p> <p>As a general principle, it may bo asserted that a party seeking a specific performance must recover on the ease as made in the bill; but such latitude has been allowed in the matter of amendments, as to authorize a plaintiff to amend his bill, and take a decree according to the ease made by the auswer.</p>

Motion by counsel for appellee to re-consider and change so much of the decree of the Court in the foregoing case as awards to the appellants, against the respondent, the costs and charges by them incurred and expended in the prosecution of their appeal.

Tbis was a proceeding instituted by tlie appellants in the Circuit Court of Duval County, before the Honorable Thomas Douglas, Judge of the Eastern Circuit, to test tha right of the appellees to their freedom, under a deed purporting to be a deed of manumission executed by Jacob Bryan in his life timo, and bearing date the Both November, 1842. The nature of the proceeding, and the facts of the case, are stated in the opinion of the Court.

<p>A defendant in attachment, under the statute of this State, has at all times, up to the trial of the suit upon its merits, the right to traverse the .allegations ins the plaintiff’s affidavit, either as to the debt or the cause of suing out the attachment. This right is available to the defendant as well after as before plea to the action.</p> <p>But if the motion to dissolve be made after the defendant has appeared and pleaded to the action, the plaintiff may still proceed in his spit, and prosecute his claim to final judgment, though the attachment may be dissolved — otherwise, if the attachment is dissolved before plea to the action. In the latter case, the suit abates.</p> <p>The proviso in the seventh section of the act of 1834, (Art. 5, Thomp. Dig., S'lO,) which requires motions to dissolve attachments to be made at or before the first term of tbe Court, &c., has reference only to canses pending at the time of the passage of the aet.</p>

- Joseph 3. Lancaster, Judge. The opinion of the Court contains a full and clear statement of the facts and of the principles involved in the case.

This was an action of assumpsit for money had and received, brought by the appellee^ in the Circuit Court of. Ííonroe County against the appellant. The suit was instituted-to recover from the defendant, in the Court-below'', thé amount of a note made and executed by one John H. Geiger in favor of Ashley & Hovey, merchants at Key West, and endorsed by them to Said defendant-. The claim of the plaintiffs was based on a mortgage, the nature and.

<p>Where a man makes a deed of gift of slaves or other property, which as agaibst creditors is conceded to be void, and dies in possession of the property granted, it is assets in the hands of his administrator, and the deed of gift, in reference to the creditors; is to be considered hs if it never had been made.</p> <p>If the fraudulent donee has gone into possession of the property in the lifetime of the donor, he is not liable to the donor’s representatives either for the property or its value, but is responsible to the creditors for the value.</p>

This was an appeal from a decree of the Circuit Court of the County of Jackson, made at the May Term of said Court, 1850 — lion-. Geo. S. Hawkins* Judge. The nature and object of the bill filed by the appellants* complainants in the Court below, and the defence set up by the respondents, as well as tbe principles and points involved in tbe controversy, are succinctly stated in tbe opinion delivered by the Court, affirming the decree of the Court below*