The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1885-03-12

judsmsas b subsequently, considered hy Ne
court In which it was entered 70 b of nc leGal
| or binding force, because it had beeu paid by u
| and its lien discharged thereby. snch rssoas
agreement s not effective a. lien on the .2nd
| sold by B. TO c.
Decree reversed
W. W. Hampson and s. Y. Finley, for s2psL
lauts; J. H. Goss. for appellee.
Andrew Scott Sheriff, Appella Mt, " JoseaA W.
Russ, Appellee-Appeal nom Jacksoa caAlnty.
McWHoRrER. C. ].
1. A decree pronounced and entered In % Snit
| for foreclosure Of mortgage 10 not lien on kny
real estate of the defendant other than th&: tun
braced In the mortgage, Notwithstanding the
recover Of the defendant" . speciac SUN OF
money.
O. A decree obtained subsequently, at Gkem-
bers for the balance due the mOrtgAgor aftes the
application Of the proceeds Of sale 70 his mort
gage debt, under equity rule 80, u lien GO lhe
at law, when the said decree Is fled and enssfed
in the minutes Of the court or the chaacery
order book.
Judgment affirmed.
B. 8. Liddon, for appellant; j. F. McClslan,
for appellee.
Emily r Wilson, ExecutIix, ct al, Appelja1ts.
vs. Phoebe Fredinburg, Appellee-Madixs4e
county, transferred from Duval county.
McWHoRTER, C. j.:
l. When decision has been delivered in q.
cause in this court the decision becomes g1oad
hoe the lao Of the case, and cannot ut q sr6se-
quent term be reviewed The subsequent ap-
peal brings up only the proceedings OF the Cir
cult Court after the mandate Of this court
q testatOr has no power to dispose of his
homestead by WILL whether he is indebted OF not
indebted, at the time of his death. II he is not
indebted his heirs at law are entitled to the
homestead by the operation OF the laws OF de-
scent. If he is indebted they are entitled 30 it
by the same law freed from the debts OF the tes
tator by force of the constitutional provisions Ot
homestead exemption.
3. When a testatOr makes will making pro-
vision therein for his widow and the widow does
moi signify her dissent thereto in the Circuit or
County Court Of the county wherein she resides
at any time within one year after the probate of
such will she forfeits all right to dover in the
testator's estate.
A. The tesator directed by his will that his
business should be carried on by his executors
after his death in the same manner that he had
conducted it. creditor of the executors seek
to charge specific portion OF said property with
the payment of u debt created by the executors
in carrying on the business Held, That only
that part OF testatOrs properly used by him la
carrying on said business was prSDs0 Tocse Liable
to the debts created by the executors in conduct
ing said business, and that in the absence OF an
allegation in the bill that the s:id property wss
so used and employed by the testator, we are
bound TO presume that it was not a part of the
fund used in carrying on said business and not
liable to the debts created by the executors
5. An order Of Circuit Court on petition
presented by an executor for authority to mort
gage assets of the estate 10 secure debts incurred
by the executor is void. as TO all persons inter-
ested in said estate who are not parties thereto
and is imperative 10 authorize the executor to
mortgage property when not authorized by the
will.
6. When one makes a voluntary payment of
a debt or charge he cannot be subrogated TO the
rights of The original creditor
7. Nor Can creditor OF an executor be sab
rOgated to the rights of such executor. for REIN.
bursement from the funds of the estate, for expen
dures incurred in the execution of his trust,
when said executor has wasted the assets OF lie
estate
Decree reversed.
A. w. Cockrell, for Appellants; John E. HAr-
fridge and NJ. c. Jordan, for Appellee
Dexter Hunter, Appellant, vs.. Wilson, Stearly &
Co, Appelees-Appeal from Duval county
c. j.:
1. A. Can maintain suit in assumpsit against
B. upon B. g promise to G. for the benefit of A.
if the promise is not under seal.
2. Where the declaration alleges that b., IN
co lsideratiOn OF the delivery to him by C. of the
cargo of vessel consisting of valuable merchan-
disc, p omised G. that he would pay 10 A. dfah
accepted by G. and payable to A, and that said
draft was drawn by A on G. "against the cargo"
a plea by B. denying that said draft was drawn
" against the cargo" tenders an immaterial issue
and is demurrable.
3. When the declaration alleges that B. made
a promise to c. and D. for the benefit of A., uIon
which promise A. brings suit against B., a plea ny
B. that e never promised d. is demurrable
81 ln.lr Ill NhAN
the delivery to him OF valuable cargo OF
merchandise by G. promised c. to pay 10 A.
debt due from G. to A. plea by B. that there
was " no consideration" Tor the promise, is bad,
Judgment affirmed.
R. B. Archibald, Fleming s. Daniel for Appel
liant; John T. & George o. Walker, for Appel
lees
Theophilus West, Appellant, vs.. Joseph W.
Voolfolk, Appellee-Jackson county.
VAN VALKENBURGH, j.:
l. In issuing an attachment under sections
Is, IA and Is of chapter 7, McC., Digest p. 1i3,
the court acquires special or extraordinary
Jurisdiction, derived from and exercisable Only
according TO statute, and has the power to take
such judicial action only through the modes If
procedure prescribed by the statute.
2. The affidavit made by the plaintiff upon
which the writ of attachment was issued in thaA
case, was entitled "S State of Florida, jackson
County," and the jurat was signed, Frank
Philips, Clerk" The affidavit OF parties prev.
ing the removal of the defendants property from
the State is titled First Judicial Circuit OF
Florida, Circuit Court of jackson County,
and the jurat signed Frank Philips, Clerk or
Circuit Court" On the same day that these
aff1davits were made and filed ia the Office u
the Clerk of the Circuit Court q bond, NOT
entitled, was filed. signed by securities as re-
quired by law, but with no endosement of
approval thereon by any one, and thereupon
writ Of attachment was issued out Of the Circctt
Court of jackson county properly directed aud
sealed, and signed by Frank Philips, Clerk
Circuit Court" The court below dissolved the
proceedings on motion, for the reason that
neither the affidavit nor bond in attachment
shows in what court the proceeding Is" He'll
that such judgment OF the court was errOcst
ous
g. The clerk is not required by the statue
to endorse upon the bond in attachment cases.
his approval thereof in writing The fact of tae
issue of the writ by the clerk is evidence OF SUCH
approval
l. 1t is not necessary that the affidavit or
attachment bond, upon the filing of which the
writ issues, should be entitled in the cause: ii
they are in the form prescribed by the statute,
they are valid, although they do not state ID
what court the proceedings are had. The wit
OF attachment determines that question
Judgment reversed
Liddon and Garter, for Appellant; J. Me-
Clellan. for Appellee. #E
Silas Kearnes ct al, Appellants, vs.. L. L. Hill et
RANrY. j.: ~''A '''A i
1. Eectment will lie in favor Of one tenant ii
common against her co-tenanis who are Ruihv
OF such violation Of the formers rights as cor,