The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1882-04-25
HEADACHES OF DECISIONS
sUFREME C0URr OF FLORIDA.
Janaary TerA. A. -. 194a.
@ A. PzfrchiId. q a., Appeilaats, W Lucinda
Il H1use, q q, Appellees-AlachuA county;
transferred from St. Johns-

@ A Fx1rchiId, q a., Appeilants, W Lncinds
Il. H1use, a q, Appellees-AlachuA county:
transferred from St. Johns.
WKsrcoT9, J.:
l. A c1se in chancery b as much pending fov
tAe purpose Of hearing molten for an iniunc.
ton, when the papers are in the hands Of the
Judge OF tne Circuit Court N If they were in
tAs Clarke icdlcs Of the Circuit Oo1r Of the
county n which the case b brought The pa-
pen being thus in the hands Of the Judge Of the
Crcuit Cuar4 he may, npoa petition, hnd that
be 10 disqualified, and, before service Of subpoena
pass an order transferring the case to another
circuit. tCases Of the City Of JacksouvilIs VI.
Dorman, Is Fla, 800, and Swepson, Ct al, va
C.i e AZ, IL Fla, SS7, referred TO and explained
z An appeal IN chancery opens the whole ease
to the respondent and while the appellant may
restrict his grounds for reversal to particular
exr0rs alleged, yet the respondent viii prevail
It upon the whole record the order appealed from
b proper.
D. Where the wife seeks to enioin . sale OF
ner separate statutory property, under an execu-
ton sued out by the creditors Of her husband,
against him, she should bring her bill in equity
through next friend, making her husband and
the plaintiffs in execution defendants but q fail
ure 10 do so 10 no ground to dissolve an in junction
or dismiss the bill. The sheriff is not proper
party to such bill In such case she cannot in
terpoee q claim at Law, as she is not empowered
bond which would bind her personally, either at
law or 10 equity, and she cannot act through q
next friend at law.
4. Such portion of the statutes as anterior TO
the Constitution, rendered the wife's property
condliionally liable to the debts of the husband,
Is repealed by Section 26, Article 4, of the Con-
sututiou, which creates an unconditional ex-
emptiOn from such debts.
D. The Constitution, when viewed with refer
ence to autecedent legislation, fixes the rule of
construction to prevail. (Article Is, Section 81
II is that all acts of the General Assembly
not inconsistent" with its provisions or with
any ordinance or resolution adopted by the con-
vention framing it, are in force
Q. Al the time Of the adoption Of the Consti-
tuition married women might acquire and own
two species of property: "separate estGteD proper
which was an equitable estate, regulated mainly
BY the deed which created it, and separate stat
~toTy property" which, as TO its incidents, was
controlled principally by the statutes The Con-
stitutisu must be construed with reference to the
existing law. The terms, owned by her before
marriage, or acquired afterward shall be
her seperate property" (Article 4 Section q, J
are not incOnsistent" with the existence of the
estates then recognized and known as " separate
estate and separate statutory property" and
they continue to exist as before, except that the
conditional liability for the husbands debts is
repealed.
2. The allegation in a bill, by the wife against
the judgment creditors of the husband that
property levied upon by them as the husbands
was property purchased with her own means,
and that she always was and still is the owner
thereof, Is sufficient allegation of separate
property in her. and while, according to the rule
prevailing in this State she is to be held to full
and strict proof OF separate property, the chan
cellor should in such case grant an Injunction.
g. Where in such case q motion upon afidavits
before answer is made TO dissolve such injunc-
ten, and the afadavits fail to deny such allega-
ton of separate property, the injunction should
not be dissolved, although from the history of
its acquisition by the wife, as stated in the bill,
irregularities of character sometimes adopted
to accomplish the fraudulent purpose Of screen
ing property from debts to which il is subject
are apparent, as it is possible that they may be
consistent with fair dealing and may be thus ex-
planned.
Order allowing Injunction affirmed
Q. II. OUOpcI aud Flcmlug 6 Dauici, for Ap-
peIlants A. A. Knight and Taylor & Sanchez,
for AppelleeA