Volume 5 — Florida Reports

This cause was brought up by appeal front a decree of the Circuit Court of Jefferson County, made at November Term, 1852, by the lion, J. Wayles, Baker, Judge, sitting in Chancery. William Bailey, as Administrator do bonis non of John Bellamy, deceased, filed his bill against Henry Hogget and David Barrow, to set aside a sale made by Doggett to Barrow, as fraudulent and void as to creditors.

This cause was brought up by appeal from a decree of tbe Circuit Couit for Gadsden County, sitting in Chancery.

This cause was brought up by appeal from a judgment ■of the Circuit Court of Leon County, Hon. J. Wayles Baker presiding. Ann W. Campbell, administratrix of John W. Campbell, deceased, brought an action of debt against Ellen A. Brockenbrougk, administratrix of William A. Brocken - brougb, deceased, on a judgment recovered-in 1840, in the Superior Court of Eranklin County, against William H. BrokenbroUgh, as executor of Samuel Simpson, deceased.

This was a rule nisi on. -the Clerk, to shew cause why he should not be required to' issue execution on the judgment rendered in this cause. The answer of the Clerk is embraced in tb!e opinion of the Court. s

This is an appeal from a decree of tbe Circuit Court for Leon Comity, Hon. J. Wayles Baker, presiding. Tbe appellees, Betton & Higgs, filed their bill in tbe Court below, for tbe foreclosure of a mortgage given to them by Walter'B. Lloyd, on a certain lot'and premises in tlie city of Tallahassee.

This cause was brought up by appeal from a decree of the Circuit Court for Gadsden County, sitting in Chaueery.^ In July, 1839, Augustus H. Lanier executed his bond to the Southern Life Insurance and Trust Company, in the penal sum of twenty thousand dollars, conditioned to pay the sum of ton thousand dollars, on or before the expiration of five years from the date thereof, with interest at eight per cent, per annum, payable semi-annually.

John’s County. This was an indictment found by the Grand Jury of St, John’s County against Luke, a slave, for maliciously wounding animals.

<p>p Th^ statute of tbe State of Florida confers upon a defendant tbe right to plead a set-off, upon which he is entitled to judgment against the plaintiff if his demand proved exceeds that of the latter.</p> <p>2, After plea of set-off pleaded, and issue joined, the plaintiff has a right to discontinue his suit upon payment of costs; and this is imperative whenever an order for discontinuance is entered in the Clerk’s office. But it is in the power of the Coprt to relax the rule upon special affidavit and motion.</p> <p>8. If the costs are not paid, or if the order had been conditioned on the payment of costs, the only remedy of the. defendant would be by motion in the Court below, toSet aside the discontinuance, on the refusal of the plaintiff to con^». ply with the terms of the order or the rule, o.f Court.</p>

This was an indictment against Archibald Barber for an assault and battery.

Thomas Douglas presiding. The appellee, Mattair* instituted against the appellant an action on the case for a deceit in the sale of a slave. The declaration is in the usual form, and alleges unsoundness of the slave at the time of sale.

The appellant, who was complainant in the Court below, filed her bill against Isaiah D. Ilart and others, setting forth that on the thirteenth day of September, 1816, the Spanish Governor of East Florida granted to one Maria Taylor a certain tract of land, containing two hundred acres, situated, on the Fiver St. Johns, and particularly describing it by boundaries ; that said Ilart, by divers conveyances, became possessed of this tract of land, or such p>arts as had not been…

Tkis was an action of debt on bond executed by appellees, by which, after reciting “ that whereas, the said Amaziah W. Archer and others have heretofore filed their petition before the Hon. Thomas Douglas, Judge of the Circuit Court of the Eastern Circuit of the State of Florida, and thereupon obtained an order to the Sheriff of Duval County, and caused to be arrested sundry persons of color, to wit: a boy called Dennis Bryan, also a girl called Mary Bryan, said colored…

[Tbe Reporter has not been furnished with a copy of the record from which to frame a statement of the facts in this case, but enough appears in the opinion of the Court, to •enable the case to be fully understood.]

<p>1. Whether on the failure of a Judge to hold the term of Court at which a sums. ad. resp. is made returnable, it is nevertheless a term for pleading, and whether the defendant is bound to plead to the declaration filed at said term. Qu. ?</p> <p>2. Courts of Error will not consider an assignment of error which is presented as a mere abstraction, when the party has been in no degree damnified thereby; or, where the error, if it is one, is either corrected by the Judge himself; or is rendered harmless by the subsequent events of the trial.</p> <p>$. The omission of a bill of particulars is not a proper ground of demurrer to the declaration.</p> <p>4. The venue being correctly stated iu the margin is sufficient, although a wrong veuue be inserted in the body of the declaration.</p> <p>5. A plea which is defective in the essential quality of certainty as to time, is bad on demurrer.</p> <p>G. Objections to the admissibility of evidence must be made before it goes to the jury; it was therefore too late after an instrument of writing was read to the jury to object that its execution was not sufficiently proved.</p> <p>'¡I The general rule Mo, 23, of the Reg. Gen, Jany. Term, 1847, bad in view tho question of the costs of proving documentary evidence intended to be offered on the trial of a cause; it is not obligatory on either party to give notice of all the documentary evideuee intended to be introduced.</p> <p>8. In an action of assumpsit upon an express warranty of a chattel, theplaintiff may recover costs, charges, and interest on the principal sum paid as the consid- . ©ration, although the contract oí sale has not been rescinded, nor the property returned, nor any offer made to return it.</p>

<p>1. Under the Aet of March 15, 1844, Sec. 2, an execution is in force until satisfied ; if a sheriff endorses any action thereon, it is not his duty to return the same to the clerk’s office; nor does the writ thereby become inoperative, unless the same is satisfied.</p> <p>2. In this State, by statute, a married woman may acquire a separate and independent title to both real and personal property, during coverture, by bequest, demise, gift, purchase or distribution, subject however, to the same becoming liable to filio debts of the husband, unless an inventory thereof is filed and recorded, withiu six months from the time the title vests in her, as specified in the statute; the record of title papers particularly describing the property given to the separate use of a married woman, is a sufficient inventory and compliance with the statute.</p> <p>3. The exclusion by the Circuit Court, of a bill of sale of a chattel to a married tvoman, because the execution thereof was not proved before it was recorded, was erroneous; but as it did not appear from the instrument that the property was to be the separate property of the wife, or by any evidence that it was paid for with the separate money of the wife, but purchased and paid for by the husband, it became his property, and subject to his debts, and therefore the party was not injured by the error of the Court in the exclusion of the evidence.</p>

On the 10th day of February, 1853, Moses ~W. Garrison, agent for the appellants, applied to and obtained from tlie Clerk of the Circuit Court for Santa Rosa County, at the instance and in the name and for the use of the appellants, against the appellees, a writ of attachment, returnable to tbo next term of tbe Circuit Court for said County.

At tbe June term, 1853, of the Circuit Court for Escambia County, the Grand Jury presented an indictment against Simon, the plaintiff in error, for burning a dwelling house belonging to Richard T. Maxwell.

Motion to docket the cause for argument at the present term. The point presented is' set forth in the opinion of the Court.

the’ date of these conveyances Lott transferred and conveyed to said Mary Thomas all his other property of every name, nature and description.

<p>1. Where a judgment upon a verdict was defectively entered, and the Court after-wards, on motion, ordered a new judgment to be entered mine pro tunc, such latter entry, as between the parties to the record, relates back to the date of the first entry, and is to he regarded and treated to all intents as ontered at that time; and it will rectify and cure any variance between $he original entry of the judgment and the execution issued thereon.</p> <p>2. When & fieri facias, or other execution, is taken out on a judgment, within the time limited by law, and which ia not executed, the plaintiff may sue out a new writ of execution at any time afterwards without a scire facias; provided the first writ be returned and filed.</p>

On motion, raising the question whether or not two Justices of the Supreme Court constitute a quorum for the purpose of hearing and deciding causes.

This was an action of trespass on the case, instituted by the Appellee, to recover the value of a negro slave, who was drowned in the attempt to execute an order of the Mate of a Steamboat belonging to Appellants. The negro slave was hired to the Appellants, to he employed as a hand on board their Steamboat, and whilst in tlieir employ the order was given which resulted in the loss of the slave to the Appellee.

This was an action of assumpsit, instituted by Battle against Myrick, on a promissory note dated 14th March, 1844, and payable one day after date. On the day following, to-wit: on the 15th March, 1844, by act of the Legislature, the rate of interest was reduced from eight to six per cent. The Court below ruled that interest on the note should be calculated at the rate of eight pep cent., from which the defendant appealed,

Appellee filed bor bill of complaint against,the Appellant and others, and among other tilings alleges, that her late husband, Hiram Nourse, in bis life time, together with one Hiram W. Brooks, on the sixth day of October, in the year eighteen hundred and forty, purchased from the Trustees of the Apalachicola Land Company, Wharf-lot No, 23, in the City of Apalachicola, and received from the said Trustees a deed in fee simple for the same ; that the said Hiram Nourse, being…

this was an action of debt upon a replevin bond, instituted by the appellee against appellant. The material facts presented by the record will be found in the opinion of the Court, to which reference is made.

The njypel]ant filed his bill in Franklin Circuit'Court, against the appellees and the Sheriff of Franklin County, as ox-officio administrator of the estate of Archibald R. Ridley, deceased, to foreclose as a mortgage a certain instrument, which is set out at length in the opinion of the Court delivered in this case.

<p>Appeal from Franklin Circuit Court.</p> <p>The facts presented by the record will be found embraced in the opinion of the Court, to which reference is is made.</p>

This was an appeal from a decree of the Circuit Court of the Middle Circuit for Leon County, Hon. J. Wayles Baker presiding.

This was a Writ of Error, under the act of 1852~’3, to an order of the Circuit Court of Leon County, granting a new trial to the defendant in error. The Writ of Error was issued, and the cause taken to the Supreme Court, before it was finally decided in the Court below upon the new trial granted.

• Appeal from Leon Circuit Court. This was a motion in the nature of an audita querula to quash an execution issued on a judgment in favor of the Union Bank, against R. IL Call, oi'i'the ground of a release subsequent to the rendition of the judgment. Morrison, who claimed to hold this judgment by assignment from the bank, appeared and opposed the motion. On the twenty-fifth day of February, 1842, the Union Bank recovered against Richard K. Call a judgment for $4080 40.

This is an appeal from a decree of the Circuit Court of Leon County sitting in Chancery.

This was a rule against James T. Archer, solicitor of Kobert Lumpkin, to show cause why he should not be ordered to pay to Thomas Kandall the sum of $661.93, for his fees in the case of the Southern Life Insurance and Trust Company vs. Augustus II. Lanier, in which case final judgment was rendered in this Court.

<p>1. It is irregular, in an action of replevin, to mate an order for the issuing of a writ of return and restitution before final judgment. Such an order, when a party is entitled to it, should form a part of the final jugment.</p> <p>2...-In an ordinary case, a judgment dismissing a suit is a final judgment, but an action of replevin is an extraordinary remedy, and in such action, a judgment dismissing the suit is not final, and error cannot be assigned upon such an order until after final judgment.</p> <p>S. The Ilth section of the act of March 11th, 1846, provides that if it shall appear, upon the non-suit of the plaintiff, or upon trial, or otherwise, that 'the defendant is entitled to a return of the goods, he shall have judgment therefor accordingly, with damages, &o., unless he shall elect, &o.</p> <p>i. By a judgment dismissing the suit, it does otherwise appear that the defendant is entitled to a return of the goods, and the necessary proceedings to enforce such return may he had on such judgment.</p> <p>6. A writ of error will only lie (under our statute) on a final judgment.</p>

<p>1. By our Statute of December 11, 1824, providing for the foreclosure of mortgages, au anomalous proceeding is authorized, partaking partly of Chancery and partly of common law principles.</p> <p>2. Under it, upon a petition for the foreclosure of a mortgage given by husband and wife, to secure the payment of a note of the husband, and for judgment on the note, a judgment or decree of foreclosure may be entered against both husband and wife, and a judgment may be entered against tbe husband only upon the note, as in other cases.</p> <p>3. In such a case, it is error to enter a joint judgment against the husband and wife.</p> <p>4. The wife is a necessary party to the proceeding so far as regards the foreclosure, but not as to the note.</p>

. This was a writ of error to a judgment of the Circuit Court of Duval County, rendered Pall Term, 1853. Hart instituted in the Court below an action of replevin against Pons for the recovery of three negro slaves.

This was a writ of error to a judgment of the Circuit Court of Duval County. The errors assigned in this case are based upon the charges given by the Court below, and upon the refusal of the Court to give in charge to the jury instructions ashed for by Plaintiff in error.

This was an action of trespass on the case. The injury complained of, was the unlawful seizure and tailing away of sixty thousand feet of lumber.

The plaintiff instituted in the Court below an action! of assumpsit, to which the defendant pleaded a set-off. Before the cause was submitted to tbe Jury, the plaintiff aisked leave to take a non-suit, which was refused by the Court. This ruling of the Court is assigned for efroT.

-Appeal from a decree of tbe Circuit Court of Jackson County, sitting in Chancery. The opinion of the Court contains a full statement of the facts in the cause.

Writ of Error to EranHin Circuit Court. This was an action of assumpsit on a promissory note. The defence set up was usury. The facts, as shown by the record, 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 not forthcoming on the day of sale ; the bond was returned forfeited, and execution was issued against Gray, whose property was levied on and advertised for sale.

This was an action of assumpsit, instituted by tbe appellee in tbe Court below, to recover an amount as a balance claimed to be due from appellant to Clifford, the appellee’s testator, upon aii account stated. Non assumpsit Was pleaded, upon which issue was joined.

Benjamin F. Nourse, administrator of Baymond, filed his bill in Chancery against A. K. Allison, and others, claiming that certain town lots in Apalachicola, conveyed by the Trustees of the Apalachicola Land Company to O.. O. Baymond and said A. Iv. Allison, were held by them .as tenants in common, and charging that said Allison mortgaged said lots to certain creditors of the firm of Baymond & Allison, for more than was really due, and prayed for a receiver, &e. .

This was a bill in Chancery instituted by .Barnard, Adams '& Co., against Thomas Orman, administrator of Samuel Simpson, deceased, for tbe foreclosure of a mortgage.

Tbe original bill was filed by Eicbard McKinnie, by bis next friend, Henry McKinnie, and on bis death the cause was revived by said Henry McKinnie, as his administrator. The facts as .they appear from the bill, answer, depositions, &c., are as follows. Barney McKinnie, father of Kichard McKinnie, died in the fall of 1833, leaving .a will, as follows : * * * * “ To wit, Imprimis.

<p>Appeal from a decree of the Circuit Court for J ackson County.</p> <p>The opinion of the Court contains a full statement of the facts appearing in the record in this case.</p>

Arabella Hepburn filed her bill for dower in the Court below, against the appellant and several others, defendants, in which she alleges that Burton Hepburn, deceased, of whom she is widow, during his life time, and during the coverture of complainant, was seized in fee simple of an undivided one fifth part or interest, in common with Daniel K. Dodge, James C. Watson, Daniel McDongald, and.