Carter vs. Bennett.-Opinion of Court.

5th article, "That the Judge of the several Circuit Courts hold courts for each other."

66

may

XXIV. The twenty-fourth point seems to have reference to the same point, and the assignment is, therefore, not sustained.

XXV. The twenty-fifth point presents an objection to the verdict, upon the ground of excessive damages. This was a matter proper to be brought to the attention of the court below on a motion for a new trial. We have nothing to do with it.

XXVI. The twenty-sixth point is obnoxious to the same objection.

XXVII, XXVIII. The twenty-seventh and twentyeighth points are mere recapitulations of others already decided upon.

The true elements of this controversy, when divested of the multitudinous wrappings in which it has been presented to our notice, (the printed record making a well sized octavo volume,) are very few and very simple. Bennett was in possesion of the slaves when they were taken from him by Carter, and converted by Carter to his own use. Whether Bennett's possession was rightful or not, Carter had no right to divest him of it manu forti, without showing that he was a judgment creditor or a mortgage creditor of Jordan's. He failed to do both, and stands before the court simply as a stranger, intermeddling without authority with the possession of another.

Having reviewed in detail the many complicated questions presented upon the record of this case, we conclude by saying, we find no such error in the proceedings in the court below as to require us to set aside the judgment, and we shall accordingly direct the judgment to be affirmed, with costs.

So. Life In. & Tr. Co. et al. vs. Cole.-Statement of Case.

Let the judgment be affirmed, with costs, and the case remanded to the court below.

NOTE BY THE REPORTER.-In the 8th line of the Head Notes, on page 283, instead of "former," read latter.

THE SOUTHERN LIFE INSURANCE AND TRUST COMPANY, AND THE STATE OF FLORIDA, PLAINTIFFS AND APPELLANTS, AND CHARLES COLE, RESPONDENT.

An Appeal in Equity is substantially a re-hearing of the cause, and the appeal opens the whole case to the Respondent ;-and although the Appellant may show that the view taken by the Court below is erroneous, yet the Respondent is at liberty to show, if he can, that upon the whole case, no other decision can be rightfully made of the case in the Appellate Court.

The act of February 10th, 1832, gives authority to the Appellate Court to pronounce "such judgment, sentence or decree, as the Court below ought to have given." This power could never be exercised, if the Court had not the right to look into the whole case as it is presented in the Record. But though this Court will re-examine questions decided against the Responddent as well as such as passed sub silentio, or consider points made here for the first time, if raised by the pleadings and proofs, yet care must be taken that neither party be permitted to surprise or mislead his adversary, or to make objections which, if made in the Court below, might have been obviated.

It is well settled that the members or shareholders of corporations created for private emolument, are not admissible as witnesses for such corporations on account of their direct and certain interest. The liability of the company for costs, is a sufficient interest to render a shareholder incompetent as a witness. Time in a Court of Equity is rarely considered as material where the value of the property contracted for and the circumstances of the parties remain unchanged, but performance will not be decreed where time has elapsed and an important change in respect to value or circumstances has taken place. In sales of stock in the public funds, time is of the essence of the contract; and, in all cases where time is material, or of the essence of the contract, the rule in equity is the same as at law-that is, if the contract is not carried in

So. Life In. & Tr. Co. et al. vs. Cole.-Statement of Case.

to effect within a reasonable time, by the vendor or the purchaser, it is deemed to be dissolved or abandoned by mutual consent.

Where several acts are to be done, and a contract is entered into for their performance, the execution and performance of one act depending upon, and constituting the consideration for the execution and performance of another or where there is a variety of instruments forming one transaction,the law will not give effect to any one act, or any one instrument, unless the whole transaction is completed.

Delivery of a deed is a matter iu pais, and though the possession of a deed by the grantee is prima facie evidence of delivery, yet the circumstances under which the grantee became so possessed, may be shown even in a Court of law so as to avoid the effect of delivery. The delivery of a deed to an officer or servant of a corporation, is delivery to the corporation itself, provided it is for the use and benefit of the corporation, and with intent to pass an absolute property or interest. But there is no such personal identity between a corporation and its officers as to prevent or preclude a delivery to the latter as an Escrow, to take effect upon the performance of some condition. Nor is it necessary or material that there should be any formal notification of its delivery as an escrow. Under the 24th section of the act of November 23, 1828, in an action at law a plea of want of consideration in under oath, throws the burden of proof of consideration on the plaintiff;—and such by analogy is the rule in equity.

The Statute of Frauds of this State is more comprehensive than the British Statute; for though shares of stock have been held not to be "goods, wares and merchandise," within the meaning of the act of 29th, Charles 2d, ch. 3, the statute of this State uses the words "personal property" as well as the words "goods, wares and merchandise," and there can be no doubt that shares of stock in an incorporated company are included within the very comprehensive terms, "personal property."

Where there is no consideration of benefit or advantage to the grantor in a deed or of detriment to the grantee, it is nudum pactum, and must be so declared by a Court when such want of consideration is made manifest.

Appeal from a decree of the Circuit Court of the county of Leon, made the 5th day of August, 1850.

A bill was filed by appellants in February, 1849, to foreclose a mortgage made by defendant to the Southern Life Insurance and Trust Company, dated the 20th December, 1841, to secure the payment of $6500, which mortgage was acknowledged by Cole, the respondent, to be his act

So. Life In. & Tr. Co. et al. vs. Cole.-Statement of Case.

and deed, for the purposes therein mentioned, and was duly recorded 24th December, 1841.

After the filing of the bill and while the suit was pending, the bond and mortgage so executed by the respondent were assigned to Thomas R. McClintock, a judgment creditor of the Southern Life Insurance and Trust Company. The defence set up in the case made by complainants' bill, was—

1st.

escrow.

That the bond and mortgage were delivered as an

2nd. That there was no consideration upon which a court of Equity could make a decree in favor of complainants.

3d. That there was a total failure of consideration—and that the Southern Life Insurance and Trust Company never performed what it had stipulated to do until long after the execution of said bond and mortgage, and when the stock which was the consideration of their execution was greatly depreciated, if not entirely valueless to respondent -that when an attempt was made, after such lapse of time and under such circumstances, to transfer to Cole $6,500 in shares of stock, he refused to accept, and rescinded the contract, as he had a right to do. These grounds of defence were ably and elaborately argued by the counsel for respondent, and were fully sustained by the court.

The decree of the Circuit Court from which this appeal was taken, was the following, viz

"This cause having been submitted to the court upon the bill, answer, exhibits and proofs, and full argument having been had thereon, and the court having maturely considered the same, and being of opinion that there is no equity in the said bill for which the same should be sustained; that said bond and mortgage are not valid and binding as between these parties, having been executed for a purpose not consummated nor carried into

So. Life In. & Tr. Co. et al. vs. Cole.-Opinion of Court.

effect, and that the same was without any consideration : It is, therefore, decreed and ordered, that the said bill be and the same is hereby dismissed, and that complainants pay to defendant his costs in this behalf expended."

The opinion of the court is full and clear as to all the points and facts in the case.

The case was argued by Archer and Davis for Appellants, and by Long and Branch for Respondent.

THOMPSON, Justice, delivered the opinion of the

court.

In the decision of this case, it becomes important in limine, to dispose of the question made as to the effect of the appeal-how far it opens the cause to the consideration and judgment of this court. It is contended on behalf of Appellant, that all questions made by the pleadings and proofs, or which arose in the court below and which were either decided against the respondent, or passed over sub silentio, cannot be urged upon the consideration of this court by the respondent, unless a cross appeal had been entered by him, founded on the decision adverse to him, or the omission to decide the question raised.

It is laid down by Mr. Daniel, in his Chancery Practice, that on a re-hearing or appeal, the whole case is open. to the respondent; thus, if the appeal is against the whole decree, it is competent to the court to modify the decree, by making it more favorable to the respondent. (Vol. 3, 126, 127-Harrisburg Ed.) In Sullivan vs. Jacob, (1 Moll. R. 472,) where a defendant appealed from a decree, on the re-hearing the court decreed the plaintiff more extensive relief; and in Oldham vs. Stonehouse, (3 Myl. & C. R. 317,) where a plaintiff appealed from a decree which had been pronounced in his favor, with costs, upon the rehearing, the respondent satisfied the court that the plain