Eligibility of Circuit Court Judges.-Opinion of Court. pure and uncorrupted. There are, therefore, obvious reasons why the convention, in the formation of the scheme of government, should have inserted the restriction; but we do not think it should be extended beyond the plain import of the terms used. The promotion of an officer of the judiciary, or his translation to another office or station in the same department, is in no just sense, within the reason and spirit of the Constitution. We think, however, that the Attorney General might have gone further, and have maintained with equal conclusiveness, that if one holding the commission of Judge of the Circuit Courts of this State, had been elected to be one of the Justices of this court, he would not have been elected even to another office or station, within the meaning of the Constitution. The 3rd section of the 5th article of the Constitution provides, that, "for the term of five years from the election of "the Judges of the Circuit Courts, and thereafter, until the "General Assembly shall otherwise provide, the powers of "the Supreme Court shall be vested in, and its duties per"formed by, the Judges of the several Circuit Courts within "this State, and they, or a majority of them, shall hold such "sessions of the Supreme Court, and at such times as may "be directed by law." The Circuit Court Judges, it is clear, were, by force of this provision, Justices or Judges of the Supreme Court for the term of five years, and afterwards, until the Legislature should otherwise provide. An election to the Supreme Court bench would, therefore, be a reelection to the same office which they had held, and the powers of which they had exercised previously. They had performed the duty ever since the organization of the government, and if they continued to perform the same duties and exercise the same powers by virtue of a new commission, and even with a new title, can it be said that they are holding and exercising another office? We think not, and are Eligibility of Circuit Court Judges.-Opinion of Court. very clear in our opinion that the Circuit Judges are not ineligible to sit in this court, because of the restriction before referred to. Was it competent for the General Assembly to make the provision contained in the fifth section of the act of January 11th, 1851 ? The Supreme Court is established by the imperative terms of the constitution, and by the 3d section of the 5th article, for the term of five years, and thereafter, until the General Assembly should otherwise provide, the Judges who were to preside in the Supreme Court are designated. The powers of the court are vested in, and its duties were to be performed by, the Judges of the Circuit Courts. Has the present General Assembly otherwise provided? It is not pretended that the Legislature has interfered with the organization provided by the constitution, save by the acts of January 11th and 24th, 1851, before referred to, and we must look to these acts for a solution of the question. The Legislature can only deprive the Circuit Court Judges of their constitutional power, as Judges of this court, by the organization of the court, in some mode or manner, so as by express enactment, or necessary implication, their services may be dispensed with, and their power taken away. Although the first section of the act of January 11th, 1851, provides that the Supreme Court shall be composed of one Chief Justice and two Associate Justices, yet the whole act must be taken together; and on referring to the fifth section, we find their services are not dispensed with, or their power to perform the duties of Judges of this court taken away, but by express enactment are retained; thus preventing the necessary implication which would result from the terms of the first section. It is as if the first first section had read-the Supreme Court shall be composed of one Chief Justice, two Associate Justices, and such of the Circuit Judges as may be called in by the Chief and Associate Justices, to supply any defect arising from the Eligibility of Circuit Court Judges.-Opinion of Court. disability or disqualification of either one or two of the said Justices. It was well remarked at the bar, that the constitution did not prescribe the number of Judges, but vested that in the discretion of the Legislature. Such a number might have been provided for, as would have rendered a call for the assistance of the Circuit Judges wholly unnecessary, and thus enabled the Legislature to dispense with their services. A proper economy in the infant condition of our State Government, and its scanty exchequer, determined the Legislature to fix the number at three, and to retain the services of the Circuit Judges, and the power given them by the constitution, in the cases mentioned in the fifth section of the act, to prevent a failure or delay of justice. The Legislature foresaw that any lawyer who might be selected for this service, would be interested as counsel in pending litigation, or a judge of one of the Circuit Courts might have decided causes removed into this court for the correction of errors, or the persons selected might be otherwise disqualified or disabled to determine causes brought here for trial, and, therefore, provided against such contingency. The Legislature, we think, has not exercised the power given by the constitution to provide otherwise, so as to supercede the Circuit Court Judges fully and completely, but have done so in part only, leaving still in those functionaries the power to execute the duties and office of Justices of this Court in certain cases. The Legislature has not conferred the power to sit in this court, upon the Judges of the Circuit Court-it is only that they have purposely omitted to take it from them in toto. We take occasion to return our thanks to the gentlemen of the bar for the argument of the question before us, and to state that we feel great pleasure in the reflection, that the last view we have taken of the subject appears to be the unanimous opinion of the bar, as well as of the court. Betton vs. Williams, et al.-Points Decided. TURBUTT R. BETTON, APPELLANT, vs. ROBERT W. WILLIAMS AND THE HEIRS AT LAW OF GENERAL LAFAYETTE, RESPOND ENTS.. Where a bill is taken pro confesso, and a final decree passes by default, an appeal cannot be taken. Under the statute of this State, an appeal may be taken only after a final decree and, consequently, the appeal opens every question decided by the Chancellor during the progress of the cause, and, also, the regularity of the proceedings therein prior to a default. A demurrer to a bill, for want of proper parties, is well taken, if the defect appears upon the face of the bill, especially if, on examination, it is found that the persons omitted are indispensable to a complete adjudication of the right of all interested. Under the general rule in equity, that all persons materially interested in the subject ought to be parties to the suit, either plaintiffs or defendants, the vendors of land should be parties to a suit against the vendee, to enforce the lien of the purchase money on the land; and this rule applies where they have assigned the bonds or notes given for the price of the land, if there are any remaining rights or liabilities of the assignors which may be affected by the decree. Where there are such rights, or the assignment is not absolute and unconditional, or the extent or vitality of the assignment is denied, then an assignor is not only a proper, but a necessary party. Where there is a contract to make title to land, upon payment of a certain sum of money, though the bond securing the payment of the money is assigned, yet the obligation remains to make the title, when the condition is performed; and this obligation cannot be delegated to another, without the consent of the vendee. An objection that the person who has so contracted is not made a party to a bill to enforce the lien upon the land is well founded, and ought to be sustained. The allegation of the insolvency of the assignor in such a case is not sufficient to excuse the omission. The original vendee of an estate is not a necessary party to a bill against his assignee, for a specific performance of an agreement to purchase. Appeal from a decree of the Hon. THOMAS BALTZELL, Judge of the Middle Circuit of the State of Florida, made on the 20th of June, A. D. 1850. Betton vs. Williams, et al.-Opinion of Court. To the bill of complaints in the court below, Betton filed a demurrer among other causes stated, for want of proper parties. The demurrer was overruled by the Judge on the 29th day of December, 1848, and the defendant had leave to answer by the first Monday in February thereafter. The defendant not having answered at the time required, a decree was entered upon the rule book in the clerk's office, taking the bill as confessed. A final decree passed on the 20th of June, 1850, and on the next day, the defendant appealed. The object and purpose of the bill, and all other matters involved in the case, are sufficiently stated in the opinion of the court. The cause was argued by ARCHER for Appellant, and BRANCH and HOGUE, for Respondents. The court pronounced the following opinion, reversing the decretal order of the court below, by which the demurrer of the appellant was overruled, vacating and annulling all the subsequent proceedings up to and including the final decree of June 20th, 1850, and remanding the cause to the Circuit Court of the Middle Circuit, sitting in and for the County of Leon, with directions to allow the demurrer, with leave to complainants to amend their bill, and for such other proceedings as the case required, in accordance with the usual course of chancery practice. THOMPSON, Justice, delivered the opinion. In 1833, General LaFayette, of France, sold on a credit to William B. Nuttall, Hector W. Braden and William P. Craig, twenty-six sections of land in Florida, receiving their bonds for the purchase money and interest, and executing and delivering them a bond to make titles, on payment of the purchase money. Soon afterwards, Messrs. Nuttall, Braden and Craig sold out a large portion of these lands to other persons, and among others, to John M. G. Hunter, a tract |