Lathrop & Wilkinson vs. Snell.-Opinion of Court.
ment against the garnishee Snell, which was refused and the garnishment dismissed by the court below. To which ruling the plaintiffs excepted and bring their appeal.
It appears to us that the defendants must be regarded as co-partners, doing business both at Elba and Geneva and designating their different mercantile houses merely by a transposition of names. The parties were the same, and the debts due to either house were their common property. There was as perfect an identity of interest and liability in both houses as if the business had all been done at one counter. The fact that the name or style under which their business was transacted in the separate houses was different, when the parties in interest were the same, can make no difference in their legal rights or liabilities. The debt of Snell was due to the defendants in their co-partnership character, and to them only. The plaintiffs had the unquestionable right to subject it by process of garnishment to the payment of their debt.
The authorities relied on by the defendants are all cases where the separate interest of one partner in a firm was sought to be subjected to a debt for which his co-partners were not liable, and they show very clearly that such interest consists only in whatever share may remain to such partner after the co-partnership accounts are taken. The case here presented is entirely different and does not involve questions affecting the equities arising between copartners themselves or the separate creditors of one of them.
The judgment must be reversed with costs and the case remanded, with directions to enter judgment against the garnishee.
TO SIXTH VOLUME OF FLORIDA REPORTS
The failure to join a defendant as joint contractor or partner is only pleada-
ble in abatement, and cannot be taken advantage of as matter of variance at
the trial. Hurly's ex'or vs. Roche, 746.
Entries in the account book of a shop-keeper excluded as evidence where
the proof was that they were made in two, three and sometimes four days
after the transaction. They should have been made on the same day or the
day after.
No objection that they were transcribed from a slate.
The charges should be definite, stating the quantity and kind of the article
and price, and not accumulate and confound prices of different articles.
Grady vs. Thigpin, adm'r, 668.
The statute of 1854, as to the admission of shop books and other accounts
in evidence construed. Held, to adopt the liberal principle of the American
courts with their restrictions, that it is not confined to merchants; that the
entries to be admitted must be originally made or contemporaneous with
the transaction; that the book must appear to be fairly kept, and free from
erasures and interlineations, and the party make affidavit that the articles
were delivered and the labor and services actually performed; that the en-
tries were made at or about the time of the transactions and are the original
entries and that the charges have not been paid. Hooker vs. Johnson, 730.
When an account is presented to a party, according to the recollection of a
witness, for over three hundred dollars, which defendant promised to pay,
the jury should be instructed to find to the extent of the sum admitted.
Hurly's ex'or vs. Roche, 746.
An agent is a competent witness to prove his own authority if it be by parol.
He stands in the character of a disinterested and indifferent witness be-
tween the parties in all ordinary cases.
If the plaintiff recovers on his agency when in fact he was not agent,but had
assumed an agency which could only be established by his own evidence, he
would be answerable to the defendant; and if he assumed the character of
agent without being authorized, and in such character imposed on the plain-
tiff he would be responsible to him.
Agents are witnesses, and in many cases they are so er necessitate, even
where they may be intersted.
The exception being founded upon consideration of public necessity and con-
venience, it cannot be extended to cases where the witness is called to testify,
to matters out of the usual and ordinary course of business.
Where the agent has direct interest in the event of a suit relating to a con-
tract made by him independently of his acts as agent, he is not a competent
witness for his principal in regard to sucu contract. Croom vs. Noll, 52.
Where there is an express agreement on the part of the stockholder to pay
for the shares of stock allotted to him, upon default of such payment he may
be proceeded against by action at the suit of the corporation,notwithstanding
the Charter may provide for the forfeiture or sale of the shares of delinquents
Barbee vs. Jacksonville and Alligator Plank R. Co., 262.
Appeals may be taken from the Justice's Court to the Circuit Court and
tried by the latter agreeably to the Constitution. Exparte Henderson, 279.
The Supreme Court has no authority to entertain an appeal from a judg-
ment rendered in a Justice's Court. Otoway vs. Devall, 302; Halliday
vs. Jacksonville and Alligator Plank R. Co., 303.
The Supreme Court cannot entertain an appeal or writ of error in a
case at law, until after a final judgment. McKinnon vs. McCollum, 376.
The provision of the statute which prescribes the time within which
appeals from the Justices' Court to the Circuit Court may be taken, has
reference to the adjournment of the court, and not to the date of the ren-
dition of the judgment.
Where the record furnishes no evidence at what time the court adjourned.
the presumption of law is that the justice, in approving the appeal bond, did
his duty, and that the same was perfected within the time prescribed by the
statute. In the absence of proof to the contrary, the legal presumption al-
ways is that the officer has acted strictly within the line of his duty.
It is not a compliance with the requisition of the statute to merely pray the
appeal within the three days. It must be perfected within that time by the
actual payment of the costs and the tender of the appeal bond. Summer-
lin vs. Tyler, 718.
A debtor in insolvent circumstance may, before lien attaches, lawfully pre-
fer one creditor, or set of creditors to another.
A sale, assignment or other conveyance, is not necessarily fraudulent be-
cause it may operate to the prejudice of a particular creditor.
In an assignment to a trustee who accepts the trust, and enters upon the du-
ties thereof for the use of certain creditors, the legal estate passes and vests
in the trustee, and chancery will compel the execution of the trust for the
benefit of the said creditors, though they be not at the time assenting, and
parties to the conveyance.
A deed of assignment is to be construed by the res gestae, and thus courts
are permitted to look to the circumstances and motives which led to its exe-
cution, and the objects to be accomplished. Bellamy vs. Bellamy's Adm'r.
62.
The provision contained in the 4th paragraph of the 3rd Section of the
Act of 1834, (Thomp. Dig., 370,) which requires that "the evidence shall
be confined strictly and exclusively to the state of facts alleged in the plain-
tiff's affidavit, as they existed at the time of issuing the attachment" has re-
ference only to cases pending at the time of the passage of the act.
The decision in the case of Kennedy vs. Mitchell, (4 Florida R. 457,) which
is an adjudication upon the proviso contained in the 5th paragraph of the
same section, referred to and approved.
It is a general rule to be observed in the construction of statutes that where
they provide extraordinary remedies, they should be strictly construed. But
in view of the fact that there exists no provision for "special bail" in this
state, that rule may be somewhat relaxed in its application to the attachment
laws, whenever by so doing the cause of justice may be advanced.
A debtor may by his declarations of intention, or avowal of design,in regard
to the fraudulent disposal of his property, bring himself as effectually under
the operation of the statute, as by the commission of any overt act, either
consummated or in progress of consummation.
It is a safe rule to be adopted in respect to the admission of evidence on the
trial of the issue of fraud or no fraud, arising under the attachment law,
that the evidence whether consisting of avert acts, or mere declarations of
intention, shall not have transpired at so remote a period as to prevent their
becoming a part of the res gestae, and the determination of this, must be
left to the sound discretion of the Judge, presiding at the trial of the issue.
Hardee vs. Langford, 13.
The statute regulating "commissions for collecting" between attorneys
and clients, relates only to per centage for collecting. For other services a
reasonable and adequate remuneration may be allowed, to be ascertained by
proof and either and both of them constitute in this state, what is known and
spoken of in this country and in England as "Fees" and "costs," between
attorney and client,and constitutes a lien,which should be enforced under the
same rules of law as in England, where those fees and costs are taxable
so far as consistent with our practice.
The right of set-off prevails in general cases, so as to interfere with the so-
licitor's lien upon the debt recovered, but where other claims arising out of
different transactions and which could not have been a legal or equitable set-
off in that suit exist between the parties, the court will not divest the lien of
the attorney or solicitor, which has already attached on the amount recov-
ered for the costs of that particular litigation. Carter vs. Bennett, 214.
All averments in a declaration which need not be made, or proved when
made, may be stricken out or disregarded in the proof, except when they
touch the identity of that which is necessary to be proved. When they
go to fix the identity, they become matters of description and must be
proved as laid. Burritt vs. Doggett, 332.
Unless the testimony in the case is brought before the Supreme Court by a
bill of exceptions, it connot regard it.
The bill of exceptions is given by the statute of Westm., 13 Ed. I., Chap.
31.
It ought to be upon some point of law arising upon the facts.
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