The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-04-15
aRA D-NOTHs 70 DRCGsaONs ~ TlxM
sUPREMa UOURr Or RL0naOA. ssfss
S..uary rer.. i. :. 1855.

sUPREma CoURr o. HLoasDA. 'sss
january rer.. !. >. 1855.
james Y. Wilson, PisiutilF In Error, VI Phobs
Friisnbafg, Dsfsadsnt in Error-Duval
county.
RAHKY, j.:
1. A bond, Ia form joint, executed By Q wife
a. executrix uf . former husband's will, and BY
husband whom she has N srred sincs the for
mers death, and wherein they covenant 70 pay
money and interest thereon. such money having
been borrowed to pay Indebtedness contracted
in the administration of the estate by her and :
co-executor named In the will who has aimee
been enjoined from acting. 10 binding Al law
only upon the husband execating II, and he h
pefsonal " liable upon Il whethef he b ccnsid-
cred as principal or surety.
g Such bond is personally binding upon the
husband, though in borrowing the money they
acted under an order OF the Circuit Court which
In terms authorized them to execute pr0missOfy
note and mortgage on certain property Of the
estate to secure the loan, which order has been
ascertaiued to have no validity as binding either
the property mortgaged or the estate,
y. MherEa pers0a stAnAing In - 6aueassy Or
representative capacity contracts as to particu-
lar matter either without authority or beyond
the limit of his authority, he is legally liable for
a breach of such contract; and If person
he will be held liable upon It though he de-
scribes himself as such fiduciary or agent
T. Covenants in contracts made by public
agents acting as such, though in form personal,
are on grounds of public policy construed or
dinarIly 10 bind the government only and this
is regarded as an exception to the general rule
in other cases.
B. A bill 10 equity fled by person against
the representatives of estate to enforce mort
gage which has been unlawfully made by such
representatives on property of the estate (as well
as property which did not belong to it) to Sc
cure loan Of money for which such represen-
taiives had no lawful authority 10 bind such
estate, is not good plea in bar to personal sc-
tion at law against one of such representatives
on the bond gwen by him and his ca execusrix
for the money borrowed. Nor is such plea made
good by an allegation that the rights of the par
ties TO such equity suit were adjudicated by the
courts. it not being shown by the plea that such
adjudication was inconsistent with the right to
maintain such action at law on the bond.
o. Where declaration contains but one count
which Is upon "promiss0ry note" for the pay
ment OF a certain sum of money and interest
plea is adjudged bad on demurrer, and an order
is made by the judge that judgment be entered
for the plaintiff in case the defendant fail to plead
again by certain rule day, and upon such fail
ure aJudgment is entered by the clerk, assessing
damages upon an instrument under seal where
OF money mentioned in the declaration and in
terest as alleged therein and all taxes and as
sessments under the laws of Florida upon the
loan, such judgment entered by the clerk is il
legal, though the damages assessed are confined
to the sum of money and interest thereon al
legged IN the declaration There is fatal va
rance between the allegation and the proof:
and this is not changed by the fact that a copy
OF the bond was filed with the declaration,
though not made part of it by apt words
Order sustaining demurrer to pleas affirmed
and final Judgment entered in the clerks office
assessing damages reversed
A. w. Cockrel s. Son. for Plaintiff in Error.
Nj. e. Jordan, for Defendant in Error.
The County of Gadsden, Appellant, vs. r P.
Green, Appellee-Appeal from Gadsden
county
VANVALKENBURGH j.:
1. Members OF the Board of Plblic Instruc-
tion are county agents whose duties
pertain to and are limited by the territory of a
county. The laws provide that they shall be paid
from the county treasury for their services and
expenses on the same basis the County Com
mssioners are paid for their services and ex-
penses.
q The statute which provides for the pay
ment OF the members of the Board Of Public In
structon, on the same basis as the County Com
mssoners are paid, is not Ia conflict with the
OonStIiutiOn OF the state.
g. The .members of the B ,ard of Public To-
struction are entitled to their mileage as well as
their per diem pay
Judgment affirmed
John w. Malone, for AppelIant Phil r
Stockton, for Appellee.
Thomas Holiday, Appellant, VS. John Fl. Nc
kinne, Appellee-Appeal from jackson coun-
ty.
VANVALKENBURGH, j.:
l. In an action in replevin plea of not guilty.
pu.s 10 issue not only the right of the plaintiff
10 the possession of the property replevined but
also the wrongful taking and detention thereof
Under such plea the defendant can give any ey
idence OF special matter which amounts to
defence to the plaintiff cause of action. to show
that the plaintiff is not entitled to the possession
OF the property replevined
2. In an action of repleyin the iurv G,rrd A..
verdict that we the jury find for the plaintiff
property to the value of $47764-1O and dam.
ages to the amount of one hundred dollars
Whereupon the court entered judgment as fol.
lows: Whereupon 1t is considered bv the
court that the plaintiff recover of the defendant
the property mentioned in the declaration to-
wit: five hundred bushels of corn in crib On the
Mchinne plantation in the ear aud unshucked.
one yoke OF black oxen named Joe and Rollv
TWO wagons and seventeen head of fat hogs
&C, "of the aggregate value of five hundred
uoha,s, anu tne sum OIL one hundred dollars for
his damages" &c, "and that execution do is-
sue therefor and that writ of possession issue
i0r the said property as above described !"
hetd That the judgement did not conform 10
the verdict and was therefore erroneoua
g. Under our statutes, a party plaintiff suing
the administrator of a deceased iutestate NAV
make himself witness TO prove an independent
TACT, not involving transaction or communi
cation" with the deceased; but he cannot be
permitted 10 prove the signature OF the deceased
70 Dill OF sale which covers the transaction and
tnroagh the proof OF which he alone can recover
Ia mrs action as plaintiff-more especially Is this
so when there is some conflict of evidence AZ "a
such signature. -
& The words transactions or communica-
uons as used 10 the statute embrace every VARIETY
OF affairs which form the subjects Of ecotiations
or actions between the parties, and include eyery
metnod oy which one Can derive impressions
rom the conduct or language of the other.
D. Inc retention oil personal property by the
veneor aiter sale is prsna facse evidence of
fraud, and the evidence to rebut such presrsmn-
ton Is an explanation of the retention hv
showing ihat II IS consistent with the deed. or
IS unavoidable, or is temporary, or for the res-
sonabe convenience of the yendee
g. The laws Of the State (Mcfrs nj. 500,
provioes the manner of proving the insofvencv
oI an estate. II Is only upon the finding Of 1
oounty Suoge 10 pursuance Of law that an es.
tate can oe declared insolvent. An attemp, to
PIove sacn insolvency in any other manner Is
nowhere authorized by our laws
- Cfedttofs OF an tntestate have their rirhf tn
question the fraudulent transactions Of their
ueo'cr ~ oy proper proceedings in the courts.