Isaac W. Mitchell, Appellant, vs. F. R. Cotten, Executor, Appellee, 3 Fla. 170

LANCASTER, J, In the matter of the petition for a rehearing in the case of Isaac W. Mitchell vs. Frederick R.

Cotten, executor, filed on this the last day of the term, we have to regret that time is not afforded to the Court to deliberate and examine authorities, as the subject from its importance would induce us to desire to do; but the remembrance that the sum in controversy is very considerable — that, as it stands, the plaintiff can recover no interest, until he recovers judgment, and that the delay of a year will subject him to considerable loss, in the use of the sum in controversy, we are inclined to dispose of the questions raised by the petition, before the final adjournment of the Court.

The first ground assigned for the rehearing is, that the Court erred in deciding that the matters and things set up as a defence in the sixth plea did not constitute a bar to the plaintiff’s right of recovery, because the matters and things contained in said plea were, by the rulings of this Court, in the same case, between the same parties, res adjudicata. 2 Fla. Rep., 145.

By reference to that case, it will be seen that the objection taken to the decision of the Circuit Court in overruling the plaintiff’s demurrer to the defendant’s sixth plea, was interposed after the plaintiff had filed a replication to the plea, and had, as the Court there decided, waived his demurrer. The validity of the pica was not decided, nor did the Court look into it, to ascertain its value, as a bar to the action; but it was only held, as he, the plaintiff, had taken issue on it, and there remained no demurrer to it, there was no issue of law on that mattter, properly before the Court.

In regard to the second ground set up in the petition, it is to be remarked, that at the trial at this term, the charge or instruction No. 13, therein referred to, was contained in the bill of exceptions, and stated to have been given by the judge to the jury at the trial below, and to have been excepted to by plaintiff; this, therefore, brought the doctrines it contains directly and unavoidably before the Court,- for review and adjudication.

Their judgment thereon will be found in the opinion delivered ; and they do not perceive any valid objection to the assignment of that instruction as erroneous, because the same identical matters of fact, or of law, are set forth in the plea, as a bar to the action, which are contained in the instruction No. 13. This Court certainly did not, in this case, at the former trial, 2 Florida R., 145, make any decision as to the legality of defendant’s plea No. 6, but declined to consider it.

If, therefore, that plea, in the facts it alleges, and the bar to the action which it thereby seeks to maintain, is identical in principle with instruction No. 13, above mentioned, it follows, if the opinion delivered at the present term in this case is correct in law, that plea does not present a good legal bar to the action ; that the issue it presents is an immaterial issue, and if found for the defendant, could conclude the plaintiff nothing ; and if the other material issues were found for the plaintiff, then judgment non obstante .vere dicto ought to be given for the plaintiff on that issue ; but as the finding was a general verdict for defendant, then a venire facias de novo was the proper remedy.

The third objection raised is supposed to be mainly answered ; but it may be remarked, that let that instruction No. 13 have relation to what plea or pleas in the case it may, they will separately be affected to the extent they, or either of them, may be in conflict with the 'law, as contained in the opinion delivered in this case at this present term of this Court.

The 7th, 8th and 9th pleas of defendant, are pleas which allege (in various ways) that Mitchell, the plaintiff, for a valuable considetion, gave delay of payment to Doggett, the principal obligor, without the knowledge and consent of Cotten, the surety. H.

Doggett was examined as a witness touching the matters in issue in those pleas, and in answer to the 10th interrogatory, says : “ Witness saith he was not in Florida, and did not see the said Mitchell about the time mentioned in the interrogatory, or make any contract with him about further time.” Cotten, in his letter to Mitchell, dated 25th of November, 1844, says: “You were so kind as to tell me, in the last conversation we had upon this subject, that, whenever I desired it, you would proceed to collect, and I now say that unless, &c., I shall certainly wish you to proceed, as quick as possible, to collect your money from Col.

Doggett.” Again : “ I have no wish to have Col. Doggett pushed, and my permitting the note to run so long, is, I think, satisfactory proof of that fact.” There is no testimony of any witness in the case, but what is made by Henry Doggett and John W. Cotten, going to sustain the issues on the three above mentioned pleas, and Doggett himself) the witness of defendant, says “ he made no contract with Mitchell about further time.” It also abundantly appears, that Mitchell commenced a suit soon after Cotton desired him to do so.

Will the counsel ask the Court to shut their eyes, and suppose testimony on which these issues could or might have been found for defendants? It is said the bill of exceptions does not state that it embraced all the testimony given in the case. At page 36 of the printed record, at the end of the testimon}’, it is said, “ This being the whole testimony offered,” &c.

The fourth ground of the petition is, that the matters and things alleged in the sixth plea, and found by the verdict of the jury, did not constitute a defence to the action — was not duly considered by the Court, the same not having been folly argued to this Court at this term, because appellee’s counsel no longer regarded it as an open question. The answer is, the 13th instruction was before the Court, and elaborately argued, and maturely considered by the Court, and the law arising thereon announced in the opinion delivered.

It is the determination on that 13th instruction which affects the 6th plea of defendant, and counsel must have been as well apprized of ihe effect of reversing that instruction at the argument as they are now. The fifth ground of the petition has been mainly replied to, in our review of the third.

But suppose we are mistaken, and the jury, on the testimony before them, meant to find these issues, Nos. 7, 8- and 9, or one of them, for defendant, we can only say, it does not appear plainly to us ; but it appears much more probable, that the plea of the statute of limitations with them formed a bar to the second count j and the sixth plea, under the' 13th instruction, formed a bar to a recovery on the first count. And upon the whole case, justice appears to be advanced by ordering a new trial. It is, therefore, ordered by the Court, that the rehearing petitioned for in this case be denied.