Williams v. Moseley ex rel. Smith (2 Fla. 304, 1848)

Baltzell, Justice.

This case has been twice argued with a zeal and ability proportionate to its importance and the interest felt by the parties in its de-cisión.

It has received from the Court the consideration due to the questions involved and the great principles at stake, and though regretting a difference of opinion amongst the Justices, yet they proceed to give the results to which they have arrived.

A tract of land of 400 acres, belonging to the heirs of John Farmer, was sold at public auction on the 1st of January, 1841, and "William W. Hart having become the purchaser executed his five notes with the defendant and Tom Peter Chaires as securities for the purchase money, payable in annual instalments of $960 each on the 1st days of January ’41, ’42, ’43, ’44, and ’45. The notes were payable to Arthur Burney guardian of the heirs, and the sale was made under the order of the County Court of Leon County, upon the representation of the guardian that the interest of the heirs would be greatly promoted by the sale, that the lands were renting for only $100, whereas they were worth 10 or 12 dollars per acre, and the legal interest on what they would sell for would be equal to $400.

Burney died and Hart in December, 1842, was appointed guardian. Hart died about March, 1843, and Patrick Smith, who has instituted this suit in the name of Moseley executor of Burney, was appointed guardian in his stead. The counsel of both sides agree that the legal title in the notes was in Burney in his life time, and after his death in Moseley. Defendant’s counsel support their position in this respect by reference to Chitty on Bills, 160, 358. “In the ease of a bill payable to A. or order for the use of B., payment should be made to A. or his indorsee, and not to B.” Other authorities are also cited by them to the same effect. Story on notes 130, 461,180. To strengthen his case, plaintiff availing himself of a provision in the rules of the late Court of Appeals “that suits may be brought by a plaintiff for the use of another person named in the process or pleadings,” has connected the beneficiary or equitable with the legal interest on the notes. So that there would seem to be no real difficulty as to the form of the action.

The general issue was filed in the ease, and various positions are assumed in defence, mostly arising from the fact that the names of defendant and his co-suroty wore cut off from the notes, whilst in possession of Hart as guardian. Before noticing these, it is proper to advert to grounds not taken in argument either in this Court or in the Court below, but which have been regarded as worthy of attention by the justices dissenting from the decision of the case. The first of these is, that Patrick Smith is not in fact guardian of all the heirs of John Farmer, but of a part only. Objections of this kind are not in general favored — if made to the person of the plaintiff they should be presented in proper time so as not to surprise — usually by plea in abatement, and the issue thus formed is first tried and disposed of. A plea in bar waives objections that could be presented in abatement, and especially admits the character in which the suit is brought. Archb. Pl. and Ev., 283, 167. 2 Phil. Ev., 447. 3 Ibid, notes, 331. 1 McCord, 468, 470. 15 John., 228.— 1 Bibb, 604.

Other objections are also taken, such as that the sale was not made in conformity with the order of the Court, and the notes taken differently from its directions. These questions are not presented by the pleadings, and the appropriate time to decide them is when they shall be properly raised for adjudication. If the objections exist there should have been a plea alleging the failure of consideration ; but there is none such in the record, nor is it pretended that Hart was disturbed in the possession of the land or that his title under his purchase has ever been questioned; indeed wc see defendants have taken a mortgage of it for their indemnity. Wo therefore decline to notice these points. If requisite it might not bo difficult to dispose of them satisfactorily and conclusively.

The main reliance of the defence is on the position that the receipt given by Hart to Moseley paid the notes and satisfied them.'— It is admitted that Moseley is discharged by the receipt so far as Farmer’s heirs are concerned. The question is as to its effect upon Hart, and it is only necessary to refer to the transaction to ascertain its true character. Moseley held the notes as executor of Bur-ney ; but they belonged not to the estate he represented, but to the heirs of Farmer, and Hart being their guardian was entitled to them. Moseley delivers them, and takes the receipt for his own protection. The transaction concluded, Hart obtained the notes, Moseley Hart’s receipt. Hart got the notes not because he was maker and through a payment to Moseley; (for it is not pretended that money or consideration of any kind passed) but as guardian. It is difficult to see how Hart can claim under the receipt, it was Moseley’s not his. So far from Hart deriving an. interest by the receipt, it is on the contrary evidence of Moseley’s having derived an interest from him. So far from.relieving him from responsibility it creates a duty, and involves accountability ppon him. To make the receipt a payment to Moseley, is to make Moseley debtor to Farmer’s heirs, thus destroying the entire legal effect of the receipt, and the design of the parties in executing it. Such an idea was never entertained by the parties at the time of the transaction nor afterwards, and is not in our opinion the fair import of the agreement which is to be taken or considerod in reference to all its parts. Hart retained the notes as they were received from Moseley until his death — returned them in his guardian account as the notes of his wards, distinct from cash — retained his own name in the notes, whilst he cut off, or permitted the names of his securities to be cut off, showing that he did not consider them as paid. The Judge of Probate too charged the notes to him separate from cash. But the relation which the two parties Moseley and Hart occupied to the subject we think is conclusive, if anything were wanting. They were co-trustees to the infant heirs of Farmer, Moseley having the naked legal title while on Hart was imposed the duty as guardian of taking charge of the notes, and the money obtained from them until his wards came of age. A receipt by one to the other on parting with their possession would have the effect merely to devolve on the party receiving the peculiar duty and responsibility of collecting them as in the case from Chitty, of a note given by A. to B. for the use of C. C. gets the note from B. and gives a receipt for it, this is no discharge of A. The only effect is to relieve B. of the responsibility, if there be one, of collecting the note. Hart, however, through means of the receipt obtained possession of the papers, and the true question is not whether the receipt constituted a discharge, but whether through this possession, thus uniting the two characters of maker of the notes and guardian, there was in law an extinguishment of the debt.

That in case of an executor indebted to his testator such a result would follow is very fully settled, though we shall find that the grounds upon which it has been permitted to operate are various and conflicting both in this country and in England. The probability is that it is a consequence of the enlarged interest in the estate of the testator allowed by the law at a very early period to the executor already referred to by this Court in the case of Colquitt vs. Fauntleroy. In the leading case on this subject, that of Wankford reported in Salkeld, we find a difference between two very eminent judges Lord Holt and Justice Powell, the latter remarking “some books say the action is gone, some say the debt is gone, and some say the debt remains, they will all be reconciled by this, that the debt will be assets,” that it was by way of legacy or gift of the debt, and not by release, &c. The Chief Justice said, “as the person entitled to receive it is also the person that is to pay it, that amounts to an ex-tinguishment.” Salk., 303.

In Massachusetts the Court say, “ It is not always a legacy nor a release nor extinguishment of the debt. It is more correct to say that although the duty remains, the right of action is discharged because the executor can;t sue himself.” Stephens vs. Gaylord, 11 Mass., 269. In New York it is considered in “ the nature of a specific bequest of the debt not to be paid unless there are assets sufficient to pay the debt.” Marvin vs. Stone, 2 Cow., 781.

Notwithstanding the rule we shall find that an executor could be sued by a. creditor of the estate at law always, and charged with his debt as assets. Will, on Executors, 937, 945. Freshly vs. Fox, 9 B. & C., 130.

So also he will be charged in equity at the suit of a legatee, dis-tributee or next of kin. Toller, 274. 2 Cowen, 781. 3 Brown Chy., 111. 3 Ibid Par. Ca., 607. 11 Vesey, 90. 13 Ibid, 262.

By statute the rule has been abrogated with us both at law and in equity as early as 1834. Duval, 188. It never was applicable to an administrator in reference to whom it is said “ the appointment being by the mere act of the law, and a temporary privation of the remedy only the debt is not extinguished — the action merely is suspended during his administration; but revives after it ceases.”— Toller Ex., 849. Will. Ex.. 937, 946. 2 Black., 512. 1 Salk., 306. Story notes, 543.

1 Siderfin, 79, was the case of an obligor appointed administrator who had died, and his executor was sued for the debt by an adminis-. tratorde bonis non, of the first intestate and a recovery was had. 8 Co., 136. Keble, 313.

No authority has been cited showing the application of the doctrine to guardians, and we have been unable to find such ourselves. If applicable it must be by some analogy to the office of executor, and we propose to enquire whether any such exists. The civil law js more full and clear as to this relation than ours, and we propose to refer to it in connection with this subject commended as it is by those two eminent jurists the late Judge Story and Chancellor Kent. “ It is equally a provision of religion as of law that those who are deprived of their father during their minority should be put under the conduct of some one who will fill the place of a father as far as possible, and be charged with their education, and the care of their property, who is termed a guardian.” Domat, 171.

“His power and authority extends to all that can bo necessary for the faithful management of the affairs of the ward — he is esteemed acting for his ward when he rightly manages the estate, not when he wastes and destroys it.” Ibid, 171.

“ He cannot give away the goods of his ward nor surrender any right he has, nor even diminish it, nor impose on the estate new burdens, nor can he impair, nor render worse the condition of his ward — he has no power but to preserve the property of his ward not to injure or destroy it.” Ibid, 176.

The same principles are maintained and asserted by the common law. “ The authority of the guardian extends only to such things as may be for the benefit and advantage of the infant whereof he may give an account.” Bac. Ab. Guard., 684. Co. Litt., 89, a. 7 John., 557.

He can do no act to the injury of the ward. 10 John., 441.

“ The Court will not suffer an infant to be prejudiced by the laches of his guardian.” 1 Black., 463, n. 11.

“ When it can pronounce a contract to be to the prejudice of the infant, it is void.” Maule & Sel., 482. 2 Hen. Black, 511. 2 Mason, 82.

He cannot set aside an award favorable to his ward. 4 Bibb, 437.

In law he is the mere bailiff or servant to the infant, and liable to account which an administrator or executor was not subject to ex"cept by statute. 2 Bacon’s Ab., 687. 1 Black., 643. 1 Com. Dig., a. 2.

Now account lies not for wrong or waste, but only for money paid. 1 Com. Dig., a. c., 192.

As servant or agent he can only discharge on receipt of the money due. Story’s Agency, 170, 437. Paley, 262.

He cannot release a debt even to make a debtor witness for his ward. 3 Cond. Eng. Chy., 235.

His powers and duty seem to bear a very near, if not complete resemblance to. those of an administrator de minore estate who “ may pay debts of the estate — sell and dispose of the goods if perishable, retain for his own debt — receive debts due to the testator, and discharge and acquit them on payment. But he is only in nature ■of a bailiff, and ought to account to the executors — has no authority to transfer the property by sale except in case of necessity nor to release a debt without actually receiving it.” Toller Ex., 405-6. 1 Com. Dig., ad. F., 1.

There is no power here’to give receipts without payment nor discharges without satisfaction — the power obviously results from the duty, and extends not beyond if; it is to guard, protect, and save the goods and property of the ward during his infancy, and turn them over when he comes of age. The moment the guardian attempts wrong or injury the law intervenes to prevent it by declaring his impotency, and the nullity of the act. Especially we have seen that there can be no bequest, gift or other circumstance in the case of a guardian as in that of an executor to create an extinguishment of the debt. Nor is it by any means clear that if the note were discharged by extinguishment as to Hart, the other makers, the defendant and Chaires, would be exonerated by it. “ A discharge of one joint maker of a note by mere operation of law, and without any act done by the creditor will not discharge the other maker.” 13 Mass., 148. Story’s Prom. N., 502.

Again “Extinction of tho debt as to the principal, in general discharges securities, except when it arises from causes such as bankruptcy, which originate with the law and not in the voluntary acts of the creditor.” Theobold, 73. Brown vs. Carr, 7 Bing. 508. 2 Russ. 600. Other cases relied upon “as precisely in -point,” arc to the effect that “because a guardian could not sue himself, it, the debt, shall be presumed to be paid, and he and his securities on the guardian bond shall be liable.” Dudley’s S. Carolina Reports.

Literally construed, this authority asserts that if A., indebted to an infant, be appointed his guardian, the debt is presumed to be paid, (that is, discharged and settled,) and this is the construction contended for by defendants’ counsel. Now it is obvious that if this be true there is no liability on the part of any one; and the principle asserted by the Courtis directly at variance with their adjudication. But we do not so understand it, nor the numerous cases to be found in the American Courts on this subject. In none of them was the question raised as to the liability of the original debtor, whether sued upon the debt in its original shape, or upon the guardian or adminis-Iration bond. Can it be pretended that to a suit instituted for the recovery of this debt the party could invoke the presumption of payment through his appointment as guardian or administrator as a means to defeat the suit against him ? We think not. The question in the cases alluded to was, whether such indebtedness of the guardian or administrator of themselves, were sufficient to make the securities liable, and such liability was ^assorted on the ground that as an officer he must be presumed to have discharged his duty ; and their liability was the result of such presumption. But it is difficult to perceive how a rule of law whose obvious effect is to enlarge and extend a liability, indeed to give new names and further security, can be invoked to impair, defeat and destroy one already in existence. To discharge the principal under such circumstances would be to overthrow the cases referred to : for obviously without an obligation on the part of the principal there can exist none against the security; it would be to set up the doctrine of extinguishment as to administrators and guardians which we have seen uniformly deniedjfrom the commencement as to the former, and opposed to every principle and analogy as to the latter.

A class of cases invoked by defendant maintains that where an executor or administrator is also guardian, the responsibility is devolved by operation of law from the securities of the one to those of the other. These go upon a like presumption that the officer has discharged his duty, and that neither he nor his securities on his official bond can excuse themselves from responsibility by alleging a failure of duty. But upon another ground it is clear to our minds. An administrator or executor is the agent or trustee for creditors, legatees and distributees ; so soon as he becomes guardian for a minor having money in his own hands, his joint agency ceases as to this by operation of law; he then holds the money as the individual agent of one instead of all his former cestui que trusts. If he gives bond as guardian, his securities become liable for this separate agency, displacing by necessity his former joint action and the responsibility connected with it.

A further illustration may serve to explain: A. is agent for several individuals connected in business; they dissolve and he is made agent by one of those having a large amount of money in his hands derived from the old association ; his employment and possession of the money continue under his new relation. It is very obvious that this separate and individual agency supercedes and displaces the former joint agency and responsibility, thereby creating new liabilities. If a new bond were given,'the relation of the securities under the new and old arrangement would necessarily be altered; and such we apprehend is the case with the offices of guardian and administrator. But any way considered we do not see that the law of these cases is applicable to the case of this defendant. Hart was never executor or administrator of Farmer’s estate so as to transfer a responsibility from the securities on an administration bond to those on his guardian bond.

It is a mistake, too, we think, to suppose that the securities on these notes occupy a more favorable position than the securities on the guardian bond. In establishing the liability of the latter, it by no means follows that the former are discharged. In the case of Fox vs. Alexander, decided by the Supreme Court of N. Carolina, the guardian had traded a note of the ward’s in payment of his individual debt. The ward coming of age recovered the amount of his debt against the securities on his guardian bond; the latter filed their bill, alleging the insolvency of their principal, and praying that the payors of the notes be compelled to pay to them in preference to the person to whom the note had been traded ; the Court say, they (the securities on the guardian bond) have a right in a Court of Equity to stand in the place of the ward and follow the trust fund and recover satisfation to that amount now in the hands of the defendant or in the master’s office.” 1 Iredell, 341.

T]o the same effect is Powell us.-Jones in the same Court Ib. 337.

Reliance is placed on the 40th section of the act of the Legislature, Duval, p. 178. But to bring the case within that provision there must be “a discharge given by an executor, administrator or guardian of a debt, &c., belonging to a minor.” Now we know of no discharge given by Hart to Williams and Chaires except the cutting off their names can be regarded in that light. But the design of the law must be construed to mean not an act of waste or spoliation, but of lawful and rightful discharge. It would be a forced and most violent construction to suppose that the Legislature designed to make an act such as we have been considering, a discharge binding upon a minor and orphan.

Another position is, that “ the notes were in fact and in law can-celled and discharged as soon as Williams’ and Chaires’ names were cut off by Hart, and this, if it were done even through fraud.” If a guardian cannot make a contract to the prejudice of his ward, he cannot without payment legally destroy one already made. There is no where within our knowledge a law written or unwritten, a rule or principle of any court professing to administer justice, which permits the improper mutilation or defacing by an officer, of the evidences of title or of debt entrusted to his charge. So far from it, there are prohibitions of every various character, civil as well as criminal, against such profanation. We could not well give our sanction to a doctrine more mischievous in its results or more disastrous to the peace, the morals, and the dearest interests of society. If a guardian may discharge a debt due to his ward by tearing or cutting up the note of his ward, and more particularly discharge a debt of his own by such expedient, why may not all other officers having a trust and charge protect themselves after this fashion, and pay their debts also — and with less criminality on their part, representing as they do the interests of those able to protect themselves; whilst guardians have the weak and the helpless children alone confided to their charge. But if this doctrine is to prevail, what is to prevent its extension to deeds, judgments, bills of sale, and the records of the Courts ? Why may not mutilation pay debts evidenced in this manner as well as notes to a guardian, and thus riot and spoil become the order of the day ?

But the law is not subject to such reproach. “The principle is well settled,” says the late Justice Story, “that the obligor shall never take advantage of his qwn wrong, and that his own deed fraudulently or innocently destroyed by himself without payment, does not thereby lose its legal obligation ; and the principle applies still more strongly where there are sureties.” 1 Gallison, 74. 2 Mason, 2. Olcott vs. Rathbone, 5 Wendell, 492. Mitchell vs. Cot-ten, decided at this Term. Equally clear is the doctrine in cases of notes and bills of exchange. Chitty on Bills, 143. Bailey, 358.

Turning to the facts of the case we find no ground for indulgence favorable to the case of the defendant, or to the action of the guardian. These notes were evidently designed by the County Court, under whose orders and by whose direction they were taken, as a permanent investment in lieu of the land of the minors; they were payable after the long interval of five years; and from all that appears in the record were well secured; there seems to have been no necessity for their collection or a change into other notes, with a view to different security. They might have remained with the guardian unaltered, and his duty was not to change them. If a change had been indeed made in good faith with a view to better security, or even if the securities had paid such as were due, or the guardian having the money in hand for the purpose of payment had returned it in his account to his debit as cash received, there might be a color in the position that the securities were discharged.

But to hold it so, under the circumstances of the case would be to declare a discharge because Hart got possession of the notes as guardian, or gave a receipt to procure their possession from one having their temporary charge or custody, or because somebody else may be responsible for their payment. Such is not our opinion. We hold them to be contracts preserved from injury and maintained in force by a fundamental law prevailing at the time of their execution, acknowledged as well by the Constitution of the United States as by this State and every State in the American Union, operating against every action of the legislature or any other power to weaken or impair them.

The case of Dickinson vs. Lockyer, decided by Lord Loughborough bears a near resemblance to the case under consideration, and we have thought it worthy of particular notice. 'It was a suit brought by an administrator de bonis non, to recover from one of three ob-ligors on a bond which had been delivered up to him and cancelled. The defence was that Lockyer, the general devisee of the estate of Fur?e (the original obligee) in trust for the widow and children, (with whom the bonds were left by the executrix) had settled and discharged them. They were due by himself and two others as partners, and on a settlement between him and his partners he delivered them up. The defendant contended that but for this arrangement he would have retained assets from the firm — that Lockyer being the agent of the widow and being in possession of the bonds, he was the only person to whom the money could be paid, and that the delivery of the bonds by the executrix to him amounted to an assignment. The Court after saying he was not executor but trustee, and that Bener had notice of the trust say: “ they took the sealoff the bond, but that is not payment — then what is the consideration ? there is none as to the estate of Furze, but it is a personal consideration to the trustee. This would not do as a payment at lato. The question in this Court is whether the trustee of a bond can without the cestui que trust release the obligor. This a very particular case for he is debtor with'the two others. They cannot by management amongst themselves destroy that security. There was no real payment of the money into the hands of Lockyer as money belonging to the estate of Furze to be laid out according to the will. Three co-obligors in a bond by a transaction between themselves, agree that one shall be discharged and the whole security rest upon the two without the privity of the executor.”

It is not necessary to enquire what would have been the case if actual payment had been made, and the money was in the hands of Lockyer, &c., &c. The defendant was declared liable although the Court said it was a very hard ease, they all meant well, &c., and excused them from costs. 4 Vesey, 40.

Another objection is that Chaires a co-security was excluded as a witness. But we are of opinion there is no error in this. 1 Greenleaf, 440. 2 Phil, on Ev., 1521, notes.

It is next contended that, as these notes are payable “ in current Florida money” the value of Florida money only should be recovered, by which is meant that a depreciation should be allowed. To solve this question presents the enquiry as to the legal signification of the terms “ current Florida money.” Do the words “ current in Florida” qualify the word “ money” so as to change its meaning ? We think not. The legal signification is certainly not as contended for. If it be insisted that the popular acceptation is to govern, and not the legal it would be difficult to establish even then we apprehend that current money means differently or otherwise than that the bank notes or specie shall be current and pass for what they purport to be worth. If depreciated they cease to be “current” wherever the depreciation exists. When this takes pi ace, though the note may be the subject of barter as unsound goods or bad merchandize, it ceases to be money. No longer “ a standard by which to measure the value of other things,” it is itself subject to measurement to ascertain its own value.

The Court of Appeals of Kentucky, where this subject was discussed and considered with great care under circumstances greatly resembling ours, decided that the terms “ current money of Kentucky” mean that kind of money made current by an act of Congress which is the only current money of Kentucky. The same Court in Bainbridge vs. Owen interpret “ current money to mean constitutional coin.” 2 J. J. Marshal, 463.

The Supreme Court of Missouri say, “ gold and silver coin by the constitution of the United States constitutes the ‘ current money of Missouri’ as well as of all the other States of the confederacy.” 9 Miss., 703. So also notes payable in Tennessee money, and in Arkansas money were held payable in gold and silver. Searcy vs. Vaner, Mar. & Yerg., 225. 1 English, 225. We are then of opinion that there was no error in taking the sum fixed by the note as the true measure of damages.

The judgment in this case was rendered on the 23d of May, and as the term for Leon County is directed by law to commence on the 4th Monday of April, and the term of the Court in Gadsden intervened after that period, and before the date of the judgment, it is therefore urged that the Leon Court must have been continued by adjournment beyond the term in Gadsden, and that this could not be legally done. It might be safe we apprehend, to rely in answer to this objection on the decision of the Supreme Court of the United States in the case of Hopkins vs. Lee, in which the Court say, “ the power of adjourning to a distant day is common to all Courts.” 6 Wheaton, 106. 4 Cond. R., 22.

We think independently of this, that the power will clearly be found to be by law with the Courts of this State. “ By the common law at the earliest period throughout Christendom, the whole year was one continual term for hearing and deciding causes; for the Christian magistrates to distinguish themselves from the heathens who were extremely superstitious, went into a contrary extreme and administered justice on all days alike.” 2 Black., 276. 6 Jacob L. D., 210.

At a later period the Courts of Westminister Hall were prohibited from transacting business on certain holy seasons as Advent, Christmas, &c., on Sundays and some particular festivals, yet this prohibition did not extend to the Court of Parliament, the Chancery nor the Inferior Courts.” 6 Jacob L. D., 210.

At the earliest period of our Territorial existence the common law of England of a general nature, and all statutes of a general nature, and not local to that Kingdom, are declared in force and are continued to this day. Duval, 357.

By a law of Congress it was provided “that the Judges of the Superior Courts shall have power to order extra terms of said Courts or to adjourn them to any other time or place when the public interest may require it, and when from sickness or other cause the judges cannot hold the regular terms, giving due notice of the same.” Laws of Congress 1828.

Such was the state of our law to the year 1839, the time of the formation of the State Constitution, and the framers of that instrument so far from altering or repealing the statute and common law of the Territory in this respect, re-enacted them by that remarkable provision of Magna Charta, “ all Courts shall be open, and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Thus by the paramount power has the ancient rule of the common law been declared the paramount and fixed law of the land. It is insisted that because the Courts are directed by law to be held on certain days, this is in the nature of a prohibition to hold at other times. Not admitting the power of the Legislature to abridge the action of the Courts, thereby closing them in effect, and denying, and delaying justice, in opposition to the express language of the constitution, we by no means admit that such direction is at. all inconsistent with the power contended for. The fact that the power to hold extra terms existed in the Territorial Government all the time in conjunction with this direction to hold Courts on particular days, without conflict and without any supposition of contrariety is a conclusive answer. Indeed the use of the term extra precludes the idea of conflict, it is not a provision for the regular term fixed by law; but for a term beyond it required by the public interest, or when the regular term has not been held. If we are to be restricted to the very words of the law, and because the Legislature has said the Courts shall be held on the first or other Monday of a month, as is, and has been the case in all our public acts, be required to say that they are confined to the very day, then the entire business must be despatched on that day and no other, there being no authority by law to continue beyond. But where is the reason and propriety of such restriction, why is it that such a rule is to apply to the Courts to whom alone of all the public agents the emphatic language of the constitution has been so specially addressed.

The other departments of Government, the Governor, Treasurer, Secretary of State, Judge of Probate, all transact their business whenever required. We venture to say that there is not a doctrine or rule, or principle, of any law sustaining such a distinction, and that it is wholly opposed to propriety and reason. Can it bo pretended that a direction to an agent to transact business on a particular day, or a particular hour of a day, is a prohibition todo it at another hour or another day ?■ We imagine not. Ifauthority wereneeded, we have it expressly in point. “A question sometimes arises whether, when a statute points out a particular mode for the performance of some act therein commanded, its enactments shall be taken to be imperative ■or only directory; in the former only of which cases, an act done in a different mode from that pointed out by the statute would be ■void. A clause is directory when the provisions contain mere matter of direction and no more, but not so when they are followed by words of positive prohibition; thus the statutes which direct the quarter sessions to he held at certain times of the year are' construed to be directory, and the sessions held at other times are not void.” 1 Smith’s lead. cas. 170. Rex vs. Jus. Leicester, 7 B. & C., 6. 2 Ad. & El., 96.

So in Frazier cs. Willey, decided at the present term of this Court, “Statutes directing the mode of proceeding by public officers are advisory and not essential to the validity of the proceedings, unless it be so expressed. 8 Vermont, 280. 6 Wend, 480.

We have spoken of the act of Congress of 1828 as operative on this subject. That it is in force it is only necessary to refer to the schedule and ordinance of the Constitution, declaring “that all laws and parts of laws now in force, or which may be hereafter passed by the Governor and Legislative Council of the Territory not repugnant to the provisions of this Constitution, shall continue in force until by operation of their provisions or limitations the same shall cease to be in force, or until the General Assembly of this State ■shall alter or repeal the same.” If any doubt existed as to the construction of that act, a transposition of its terms would remove them; thus, the judges shall have power to order extra terms when the public interests may require it, and when from sickness or other cause the judges cannot hold the regular terms, they shall have power to order extra terms.

By law of the State, “'the jurisdiction of the Superior Courts of the Territory was conferred on the Circuit Court of the State.” Acts, 1845, p. 9.

We hold then, that the action of the Court below, in giving judgment in this case at the time was not illegal nor prohibited, but has the sanction of the constitution and laws of the State.

The Judgment is therefore affirmed, with costs.

Lancaster, Justice.

This cause comes by appeal from Leon Circuit Court. It is an action of assumpsit brought by William- D. Moseley administrator of &c., of Arthur Burney, deceased, who sues for the use ofPatrick Smith guardian of the heirs of John Farmer, deceased, against Robert W. Williams on three promissory notes, of which one is of the following tenor:

“ By the first day of January next we, or either of us promise to pay Arthur Burney, guardian of the heirs of John Farmer, deceased, nine hundred and sixty dollars in current Florida money for value received, bearing interest at 8 per cent from date, this the 2d day of January, 1841.

[Signed] “WILLIAM W. HART.”

The other two notes are of the same tenor, date and amount, and' signed in like manner by Hart, but they vary as to time of payment one being payable by the first day of January, 1843. The other by the first day of January, 1844.

To the Plaintiff’s declaration, the defendant pleaded the general issue of non-assumpsit. On the trial the plaintiff gave in evidence the notes aforesaid, also the deposition of Susan C. Murray who proved that she knew the notes sued on. That she had seen them inWm. W. Hart’s possession, and that they were in his possession at the time of his death, and that when she first saw the notes, besides the name of William W. Hart, they had on them also the names of Robert W. Williams and Tom Peter Chaires. That sometime in March, 1843, Chaires came to see Hart, who was sick. After some conversation between them (of which she heard but little) Hart asked for his pocket-book and a pair of scissors, which she gave him. After Chaires had left she saw several small bits of paper on the hearth, with Mr. Chaires’ and Col. Williams’ names written on them — afterwards saw the notes and Col. Williams’ and Mr. Chaires’ names were cut off — heard Mr. Chaires say when at Hart’s that he wanted his brother, Green Chaires, to do some business for him which he refused to do unless his (Tom Peter Chaires’) name was taken from the notes. Witness says that the consideration for the' notes sued on, was a tract of land purchased by Hart from Ar-tbur Burney, guardian of the heirs of John Parmer, deceased, of whom she was one. She was Hart’s wife — and Chaires and Williams were securities on Plart’s notes. Says also that Hart settled with Burney as her guardian, her share of the estate in his hands. Plaintiff also gave in evidence a copy of a mortgage from William W. Hart to Robert W. Williams and Tom Peter Chaires, to secure them for becoming his securities on said notes for his benefit and accommodation. Also three receipts in the hand writing of Wm. D. Moseley the plaintiff, with the endorsements on them, but signed by Wm. W. Plart. One is as follows:

“ Received of W. D. Moseley, executor of Arthur Burney, deceased, thirteen hundred and sixty-five dollars and six cents, in part payment of the amount due Rufus Farmer from said Burney as his guardian, as per account current, rendered this day, January 1st, 1843.

[Signed] WILLIAM W. HART,

Guardian of Rufus Farmer.

[Endorsed.]

Book acc. 6 26

Your note due 1st January, 1843, 960 00

2 years interest 8 pr. ct. 153 60

- 1113 60

Your note, ' 6 00

1 yr. interest, 0 48

Your note, 66 00

1 yr. interest, 5 28

J. J. Hart 169 less, 155 48

Hire of Comfort for yr. 1843, less interest, 11 96

1365 66

Other two receipts in same form, also for money dated same day, each forthesum of #1757 79-100, signed ‘ Wm. W. Hart, guardian of Argyle Farmer’ and ‘Wm. W. Hart, guardian of James Farmer,’ with the other two notes sued on, and other notes, and interest computed on all amounting to the sum of $3515 59, which was equally divided to make the last mentioned receipts — endorsed thereon as account rendered.

Plaintiff also gave in evidence a statement marked F. as follows, to wit:

1841. Amounts of sale and hire of the land and negroes belonging to the estate of John Farmer, dec.:

Jan. 1. Sale of land to W. W. Hart, ' $4,800 00

Hire ofEllick, 235 00

“ of Ben, 161 00

“ of Comfort, 6 00

“ of Eliza, 57 00

“ of Amanda, 50 00

“ of Lina, 60 00