Amaziah W. Archer, Appellant, vs. Isaiah D. Hart and John S. Sammis, Appellees, 5 Fla. 234

THOMPSON, J.; In a controversy which arose in the Circuit Coitrt Sitting in Duval County in relation to the slavery or freedom of •certain negroes, an issue was directed to be made up and tried at a- succeeding term of the Court; and in the meantime/ by consent of the claimants, of whom the present appellant was one,' two of the persons so claimed to be slaves for life, and then in custody, were delivered to the respondents upon their entering into bond in the penalty of four thousand dollars, payable to the appellant by name, with the addition of the terms “ and others,” conditioned that Dennis and Mary, (the persons Who were claimed to be slaves, and were asserting their freedom,) should ajupear before the Judge of the Circuit Court from time to time ad may be required, and abide the decision of the issue upon the petition, as well as tho. further order of the Court.

The issue so made up, was determined in favor of Dennis and Mary in the Circuit Court; they were declared to he free, and tho bond entered into by the respondents was ordered, to ho cancelled. From this judgment of the Circuit Court an appeal was prayed by the claimants to this Court, from so much of the judgment of the Circuit Court in said case as declared said persons of color, Dennis and Mary, to he free; which appeal was allowed and perfected within the term of ten days proscribed by law.

In tills Court, the portion of tho decree appealed from was reversed and set aside, and proceeding to give such decree as the Circuit Court should have given in tin's particular, this Court declared that the said Dennis and Mary were slaves for life, and tho property of the claimants, and ordered that they should bo delivered up to tho custody of said claimants. Boon after tho decree was reversed in this Court, demand was made upon the respondents for tlio slave Dennis, but the demand was not complied with; and it further appears, that at or about this timo ho-absconded, and has not since been arrested.

Suit was brought upon tho bond by tho present appellant, whose name only appears on tho face of the instrument as tho obligee thereof, against the respondents, who are the obligors, assigning as a breach that the said Dennis did not appear from timo to time, &c., and did not abide the decision of the issue upon the petition, as well as the further order of tho Circuit Court, but on tho contrary absconded, &c. By the subsequent pleading, the defence is made to rest upon two grounds : 1st.

That Dennis was only to appear before the Circuit Court, that ho did so appear, and. was discharged without day by the decree of said Court of tho 20th of Nov., 1851.

And, 2dly, That by the decree of the Circuit Court, tbo bond in question was ordered to be discharged and can-celled, that such portion of the decree was not appealed from, and remains in full ibree and unrevereed. lipón a special verdict finding the facts which are above briefly stated, the Circuit Court gave judgment for defendants ; tbe principal ground of error assigned is, that tho Court erred therein, and that the judgment should have been for tlie plaintiff.

In tho decision of tills case, we do not doom it material or necessary to consider in their order the numerous points made and discussed at tho bar upon the argument, because the grounds upon which wo put our judgment herein will be found to have met and included all the positions taken by counsel which wore open to discussion.

The main grounds upon which the respondents rely, in support of the judgment of tho Court below, are founded on tho terms of the condition of the obligation sued upon, and the effect of the appeal prosecuted by the present appellant from the decree of the Circuit Court in tho original cause, made and passed on the 20th November, IGal, which declared Dennis and llary to be free.

It has been argued with much zeal by the counsel for tho respondents, that the decree of tho Circuit Court alluded to, exhausted the requirements of the bond, that Dennis was only to appear from time to time before the Judge of tho Circuit Court, and that when the decree was pronounced in his favor, and the bond declared to be discharged and cancelled, every thing was accomplished which the respondents had bound themselves to the performance of.

This is certainly a very technical view of the question, even if correct in point of law ; but it is most clearly erroneous/ In every case whore it becomes necessary that any of tho parties should enter into a bond for the perfermanee of the decree of the Court, the condition provides in terms only that the party shall answer the decree, sentence or- judgment of the Court in which the cause is depending; no provision is made for the event of a writ of error or appeal, but in such case the law supplies the omission in every case where the writ of error or appeal arrests the execution of the decree, sentence or judgment of the inferior Court, and suspends its force and energy until the question is examined in the appellate tribunal.

Thus in the oase alluded to, a decree had been pronounced upon the equity side of the Court, with which the losing party was dissatisfied; assuming that an appeal could be taken from that decree to this Court, if it was taken in due time it arrested the execution of the decree, suspended its effect and force as a judgment, and removed the cause to this Court by force and operation of law.

In such case the law substituted the judgment of this Court for that of the Circuit Court, and such rule of law entered into and formed a part of the contract as completely and effectually US if it had been inserted therein in terms.

By the Act of February 11th, 183.2, appeals from the equity side of the Circuit Court operate as a supersedeas in two cases: First, "When the appeal is entered as in other cases as provided by the general law of February 10, 1832, which is duxing the term of the Court in which the decree is pronounced, or within ten days after adjournment; and, secondly, when, being taken within two years after it is pronounced, a Justice of this Court shall allow its operation as such, upon giving bond and security as required by Jaw, (Thomp.

Dig., 462, 446.) The first named stipersedem is obtainable as a matter of right, subject to no condition except that of giving the security required by law; and the other rests in the exercise of the sound discretion of the Judge.

At law, no execution can issue upon the judgment of the Court until after the lapse of ten days from the adjournment of the term, except in a certain special contingency to be made known to the Court by affidavit of the plaintiff; consequently the judgments rendered during the term are ineffectual until after the expiration of the time limited; if an appeal is taken within the time, the execution is superseded, and the force of the judgment suspended until the appeal is determined. And so is the rule in equity.

By the Act of Nov. 7, 1828, § 28, no decree in equity pronounced by the Judge could be engrossed and signed until after the lapse of thirty days, and not then, if the decree had been appealed from, or a petition for rehearing filed. And it is further declared that no process shall issue on any proceedings be had on any final decree or order, until it had been engrossed and signed as directed, and filed in the clerk’s office. (Thoinp.

Dig., 461.) The effect of the Act of 1828, was to allow thirty days for the unsuccessful party to enter his appeal, during which time the decree pronounced was not effectual, and the appeal if taken within the limitation,- operated as a further suspension until the appeal was heard. The Act of 1882, before cited, restricts the party to ten days, within which to enter his appeal, and this is the only change. The authorities cited by the counsel for the respondent lay down'the rule correctly, but they are inapplicable to the present case.

If the execution of the decree had been commenced, the supersedeas would arrest the proceedings at the stage in which they were when the supersedeas was allowed, but the execution of the decree in the case of Dennis and Mary had not yet commenced, and could not by force of law have been begun when the appeal of Archer 'was taken, he having .pursued his remedy within the ten days, and while tho decree was inactive.

If tlie party had suffered the time to have passed, and the execution of the decree had been consummated' by the discharge of the boy Dennis, and tire cancellation, of the bond, and he then had prayed an appeal, and obtained an order for a sv^eraedcas, such order would not have rctroactod so as to make void what liad been done in pursuance of the decree. In the case of the United States vs. the schooner Little Charles, depending in a District Court of the United-States, tho vessel, which was under arrest, was released upon a bond to perform the decree of the Court.

In tho District Court the vessel was acquitted, but on appeal the sentence was reversed, and the vessel was condemned by the sentence of the Appellate Court. Then, as in this case, it was contended that the condition of the bond was not broken; that it was to perform the decree of the Court, which could only mean the District Court, and by that decree the libel was dismissed. But Chief Justice Marshall said: “This objection must search for other sup- “ port than is furnished by the merits of the cause.

The “bond was intended to be substituted for tho vessel, “ and to be acted upon as tho vessel would have “ been acted upon, had it remained in tho power of the “ Court. I think myself justified, then, ,by authority and “ by reason, in construing tho general term 1 Court,’ which “ is used in the condition, as moaning the Court which “ shall ultimately decide the cause.” 1 Brock. R., 382-3. This case is directly in point.

Here the boy Dennis was in custody, the bond was entered into to procure Ms enlargement, tbe respondents undertaking that he woxxld abide tho judgment of the Court, and to afford to the claimants as full and perfect a remedy as if the slave had remained in custody.

If tho slave had remained in custody, no oixo will pretend to say that be was entitled to claim the .execution of tho decree until the time had elapsed within which the adverse party was allowed to enter his or their appeal, for tho law is explicit that no process shall 'issue or any proceedings be had on any final decree until it is engrossed and signed as directed, and filed in the Clerk’s office ; and this cannot bo done at an earlier day than ten days after tho decree is pronounced.

Upon what principle, then, is it that tho rights of the claimants were changed by tho substitution of the bond for the person of the slave ? IVo are not aware of any, and none has been suggested in tbe argument. If authority be wanting to show the effect of an appeal, it will bo found in Packman’s ‘case, G Co. R. 18, b.

In that case it was held that when an appeal is taken from a sentence or decree allowing a probate of a will, or granting letters of administration, if the sentence or decree is reversed, all intermediate acts of the former executor or administrator are ineffectual, because tho appeal suspends tho former sentence, and on its reversal, it is as if it had never existed; but if it is otherwise, if tho probate or administration is revoked upon citation, -when tho grant was only voidable, for tbe citation is in the nature of a new suit.

In tbe case under discussion, tbo conclusion cannot be avoided that the appeal of Archer and others against Dennis and Mary suspended tho decree of November 26,1S51, in the original cause, and that decree, so far as appealed from, having been reversed, it is as if it had never existed, as if it had never been pronounced by the Circuit Court, and in its place and stead was substituted by force and operation of law, the decree which was made by this Court upon the appeal, and it therefore results that the condition of the bond is broken.

Another point assumed in the argument, and which is said to have forjnod tho ground of decision in the Court below is, that the appeal of Archef and others from the decree of the 26th November, 1861, was restricted to that point alone which decíales Dennis and Mary to he free persons, and did not therefore embrace the direction that the bond in question shall he discharged and cancelled.

It is Undoubtedly true that a party by his appeal may complain of a part of a decree pronounced in a Court of Equity, and that while the whole case is open to the respondents under the limitations established by this Court in the Southern Life Insurance & Trust Company vs. Cole, (4 Fla. R.,) yet so far as the appellant is concerned, the duty of the appellate tribunal is limited to the matters complained of. Is this the case here % A reference to so much of the record of the original suit as is found in the special verdict in this case, will furnish a ready answer.

Several persons were, in the original suit, claimed by Archer and others to be slaves, and to he their property. As to Dennis and Mary the claim was not sustained, and the bond, which had been substituted for their persons, was declared to he discharged and cancelled; and this judgment formed the first clause of the decree, Another person was found to he a slave, and so declared by a subsequent clause, with a direction for sale, &c.

The appeal, in the terms in which it was prayed, was from “ so much of the decree in said cause as declares said persons of color, Dennis and Mary, to he free ;M and this, we conceive, carried with it all that portion of the decree which related to Dennis and Mary, and their condition.

The direction, in the same clause, as to the cancellation and discharge of the bond, was but the consequence of the declaration that they were free; it /was- ancillary thereto and dependent upon it, and precisely analagous to the case of an award of process to a complainant to carry out and effectuate the relief awarded by the decree; or to the case where a right-in real estate is ascertained by the decree of tbe Court to be in a complainant, and the defendant is decreed to convey in accordance with the title ascertained by the decree.

In all such cases, the process and the conveyance are but accessories to the principal relief, and cannot subsist without it. Why should the bond be cancelled and discharged but because Dennis and Mary were ascertained and declared to be free by the decree ? The matter is so plain that any attempt by argument further to elucidate it, would be vain and futile. The direction was but ancillary and accessory to the principal direction, and followed it, and shared its fate. Another position assumed is, that this Court had not jurisdiction of the appeal from the decree in the original cause, for two reasons : 1st.

Because the proceedings were ex parte, and, 2d, because it was not a final judgment, and therefore, as against these respondents, the decree of this Court has no validity. A very serious question presents itself, whether if this Court assumes jurisdiction of and decides an appeal or writ of error, there is any power or authority in this or any other Court to review the judgment, and declare the proceedings to be coram non ju&ice and void? We are not disposed at this time to claim that power and authority for this Court after the term in which the judgment was pronounced has been closed by adjournment.

But it is unnecessary to pass upon this question, for even if this Court possessed the power to pronounce its own judgments nullities, and to disregard them, and could do so in favor of parties or privies, the points are not well taken. We know of no prohibition to the jurisdiction of this Court, because the proceeding was ex parte. Causes often proceed ex parte, and this Court reviews the judgments pronounced therein.

In every, case where & plaintiff pursues his remedy at law, upon a default, and in equity, upon an order to take a bill juro confesso, the Court below proceeds exypcwie, and the judgment or decree may be and is reversed in this Court.

But the proceeding alluded to was not in point of fact ex pcw'te — the persons who were claimed to be slaves asserted their freedom, and the humanity and justice of the law as administered by the Courts, allowed them,y>n> hae vice, th estechos of free persons to enable them to make that right clear, amito obtain all the benefits to result from that condition if they could establish it, and thus there were both plaintiffs and defendants, the slaves holding th® affirmative. The authorities cited at the bar upon this point relate to the

summary jurisdiction of Courts* and are inapplicable. As to the other point that the decree was not final, the decision of this Court in Bellamy vs. Bellamy, 4 Flor., R., 242, 258, shows that it was final. If the parties had waited until the money arising from the slave directed to be sold, bad been distributed under order of the Court, they would have been subjected to irreparable injury ; the bond would have been cancelled and discharged, and the slaves eloigned before they could have had an opportunity of having the error redressed in this Court.

The case is clearly within the exception recognized in the decision quoted, and also in the case of Forgay vs. Conrad, 6 How. S. C. Rep., 201. The only remaining point to be considered, is the position assumed by respondents, that the bond in question is wholly illegal and void, and cannot be enforced. It would be sufficient here to say that the point does not arise in the case, the defence of illegality of the bond declared on not having been presented by plea. By Keg. Gen. of Jan.

Term, 1847, title Pleadings in particular actions, § 2, Art. 3, it is laid down thus : “ In debt on specialty or covenant, “ the plea of non est factum shall operate as a denial of “ the execution of the deed in point, of fact only, and all “ other defences shall be specially pleaded, including matters which make, the deed absolutely void, as well as “ those which make it voidable.” But as. this objection was not presented, and the point was argned with much zeal on both sides, we are disposed to consider and pass upon it, as if it were regularl)r presented.

We are clearly of opinion that the bond in question is neither a hail bond nor a replevin bond, nor a statutory bond,- and therefore the authorities cited in the argument in relation to sueli instruments are not applicable, hut we consider it as a voluntary bond, good and valid at Common Law, ¡>rovided it is entered into by competent parties, and for a lawful purpose, not prohibited by law, and is founded upon a sufficient consideration. United States vs. Tingey, 3 Peter’s R., 115; United States vs. Linn, 15 Peter’s R., 311.

There is no allegation that the parties to the instrument rest under any incapacity to contract; that the respondents Sammis and Hart were incompetent to sign, seal and deliver the obligation, or that Archer was under any disability to accept and receive it, and we must consider them able to contract with each other. It is for a lawful purpose — that is, it does not appear that the objects and purposes of the instrument were in violation, of any positive rule, or infringed any policy of the law.

Nothing has been alleged in the argument as tending to show a violation of any rule of law, except that urged upon the hypothesis that the instrument in question was a bail bond. That it is not of this character, is so clear that it is only necessary to state it; no argument could demonstrate it more fully.

Although it was conditioned for the appearance of Dennis and Mary, it was not to answer any debt or sum of money claimed to he due and owing from them to Archer and others, but to abide tbe order and decree of the Court. on. the question of their slavery or freedom, and is therefore not within the letter or spirit of § 5 of the Act of November 23, 1828, which declares that “ no person shall be required to give bail for his or her appearance to answer any original writ or summons emanating from a Court of Law.” That the contract was founded upon a sufficient consideration has not been denied, and indeed it cannot be questioned ; for admitting that the respondents derived no profit or advantage therefrom, yet if there be detriment or loss to the obligee, it is sufficient.

Dennis and Mary were claimed to be the,slaves of Archer and others, which claim has been sustained by this Court; Archer and others consented to thebailment or delivery ofsaid slaves to the respondents, accepting the bond in their place and stead. This is a sufficient consideration to support the contract, and hence the deduction that the instrument sued upon is a good and valid Common Law contract, which the Courts can and ought to enforce.

We believe that the view of the case which we have presented in this opinion covers and disposes of every point made in the argument, and that it only remains to declare the evident conclusions of law therefrom, that the judgment of the Court below is erroneous and should be reversed, and that a judgment should be entered in this Court ¡apon the special verdict for the plaintiff and appellant. It is accordingly so ordered.