term, or to a vacancy in an office, as distinct from the office itself. There is no other provision of the Constitution which changes or affects this section. The only general clause of the Constitution referring to vacancies in office is that found in Sec. 7 of Art. V., and this court has heretofore held (13 Fla., 12,) that the power there granted is not a power to fill an unexpired term but to fill a special vacancy, embraced in the period between the time at which the office is made vacant and the filling of the office by an election. This section, too, relates exclusively to vacancies in elective offices. There being, therefore, no provision in the Constitution by which a vacancy in this office is filled, the Legislature has provided for an incumbent for the time embraced between the origin of a vacancy and the appointment to hold the office for the constitutional period. (Chap. 1633, Sec. 2, Laws of Florida.) This action of the legislative department of the government shows that it did not think that the Governor and Senate were to appoint for the whole of the unexpired time embraced in the period for which the first incumbent was to hold, (the remainder of the eight years,) for the reason that this legislation has, for a portion of this period, vested the exclusive power of appointment in the Governor.

The conclusion we reach is that a Judge of a Circuit Court, appointed by the Governor and confirmed by the Senate, holds his office for eight full years, and that no part of a previous eight years during which another has held the office, (but who has vacated it,) enters into the computation of the time for which the second appointee holds. It has been thought that there was some similarity in our Constitution upon this subject and the Constitution of the United States as to terms of office of United States Senators. The classification of Senators and the provisions as to filling vacancies, which are found in the Constitution of the United States, render the cases entirely unlike.

The views we here announce and the conclusion we reach are sustained by the decisions of the courts of New York,

(2 Wend., 266; 9 Wend., 58; 11 Wend., 132,) Maryland, (5 Md., 423; 11 Md., 296,) Wisconsin, (3 Wis.,787,) Texas, (4 Tex., 400,) and Mississippi, (5 Sm.& Mar.,632.) We find no conflict in the authorities upon the subject. The rule is, that where the term of an office is fixed by the Constitution, each succeeding incumbent, appointed in accordance with the Constitution, holds the office for the full period.

The other members of the court concur with me in this conclusion. Respectfully,

JAMES D. WEstcott, Jr., Justice Supreme Court Florida.

INDEX

TO THE

SIXTEENTH VOLUME. OF FLORIDA REPORTS.

ABATEMENT.

See Pleading, 12.

ACTION, CAUSE OF. See Contract, 7; Evidence, 6.

ADMINISTRATORS AND EXECUTORS. See Practice (Equity), 28.

1. A suit by a co-surety against the heirs of a deceased co-surety for contribution is not barred by the statute of non-claim, the administrator having published the notice required by that statute and been discharged and the estate distributed before the cause of action accrued as between the sureties upon their bond. Gibson v. Mitchell, et als., 519. 2. The presentation of such claim to the discharged administrator is of no effect. Id.

3. After the discharge of an administrator by due course of law and the distribution of the estate to the heirs, a suit in equity for contribution may be maintained against the heirs by a co-surety of the decedent, whose claim arose after the discharge, to the extent of the property or its value which came to the heirs. Id.

4. Such suit is not a suit against heirs upon the bond of the ancestor to recover a personal judgment against them, but is in the nature of a suit in rem to reach the property of the ancestor. The decision in this case does not conflict with Gilchrist vs. Filyau, 2 Fla. R., 94. Id.

5. R. L. M. and F. R. P. were administratrix and administrator of the estate of J. T. M., and F. R. P. being desirous of leaving the State, and of being relieved of the duties and responsibilities of administering, it was agreed that he should surrender the assets to her and she should give him a bond of indemnity, and she with a surety executed to him a bond, which, after reciting the circumstances, concluded with the condition "that if the said R. L. M. shall pay the above claims, [enumerating several claims against the estate in behalf of third parties,] as the same shall be just and proper, and hold the said F. R. P. harmless and forever discharged from said debts or demands, and all other debts or demands that may be brought against said estate, and against all claims and demands of whatever character that may be brought or presented against F. R. P. as administrator as aforesaid, then," &c.; and the alleged breach of the condition was that she had

ADMINISTRATORS AND EXECUTORS—(Continued.)

refused to pay a debt of the intestate due to the estate of one H., of which the said F. R. P. was administrator: Held, That this was a bond of indemnity only as to all claims against the estate of M. which were not due to F. R. P. in his own right, and not a bond upon which he could recover against her claim due to others; and that he could allege a breach only after his liability growing out of the administration of the estate of M. had been ascertained; that the bond created no new personal obligations to pay the debts, beyond the availa ble assets of the estate of her intestate. Pittman's Adm'r v. Myrick, 692.

6. A sheriff does not become an administrator ex-officio of an intestate estate until empowered by the probate court to act as such, and until that event he can do no act, or consent to nothing, to bind the estate. Wilson's Adm'r, et al., v. Dibble, 782.

7. Heirs at law are not proper plaintiffs in action for unlawful detainer, where defendant is in possession under a lease made by the ancestor in her life-time. The right of possession and consequently the right of action passes to the Administrator or Executor as an incident of the asset. Scott, et ux., v. Lloyd, 151.

AGENCY.

A member of a copartnership, after the dissolution, has no agency grow. ing out of the former partnership relation to create or to perpetuate a liability of his late copartner for partnership indebtedness, as against the operation of the statute of limitations. Tate v. Cle-ments, 339.

AMENDMENT.

I.

II.

OF PLEADINGS. See. Pleadings, 2.

OF PROCEEDINGS AND RECORDS. See Pleadings, 2; Practice (Laws), 20, 21; Records of Court, Arrest of Judgment.

III. OF STATUTES. See Constitutional Law, 2, 13.

APPEALS.

I.

See Bill of Exceptions, Exceptions, and Writ of Error.

The Supreme Court has authority to prescribe a rule requiring appellant to give a bond or make a deposit for costs with the Clerk. Robinson v. Roberts, 156.

2. An order of the Circuit Judge refusing to allow a supersedeas upon an appeal from the County Judge in a case at law, is not a final judg ment from which an appeal, or writ of error will lie. Semble: There is no provision of the Constitution or statutes authorizing a review in the Supreme Court, by appeal or writ of error, of a determination by the Circuit Court upon an appeal from a judgment of the County Judge in proceedings before him, relating to the unlawful detention of lands and tenements. Barnett v. Togni, 328.

3. This court has jurisdiction to hear and determine an appeal from a judgment rendered by a Circuit Court in an action brought under the

APPEALS-(Continued.)

statute in relation to the maintenance of bastard children. John D. C. v. State, ex rel., 554.

4. It is a recognized doctrine that an Appellate Court may look beyond the bill of exceptions, and consider vital errors apparent on the face of the record, as where the complaint clearly shows that a right of action in the plaintiff does not exist. Pittman's Adm'r v. Myrick, 692.

5. An appeal will not be dismissed on account of the failure to file an assignment of errors within the time appointed, if the assignment be filed before the motion is determined and the appellant comply with such terms as may be imposed by the court. Pittman's Adm'r v. Myrick,

401.

6. Where there is a judgment against two parties, and the bond or undertaking describes the judgment as a judgment against one only, this is a ground for a motion to dismiss the appeal. Id.

7. When a notice of appeal has been given in good faith, and the appellant has failed, by mistake, to give the necessary security in order to perfect the appeal as required by the Code, and these facts are shown to the satisfaction of the court, the appellant will be allowed to perfect the appeal by giving the necessary security. Id.

8. A Sheriff, who is a party defendant to a bill filed for the purpose of enjoining proceedings instituted to exempt personal property from levy and sale, and to subject such property to sale, and having no interest in the result, is not a necessary party to an appeal from a decree subjecting such property to levy and sale. Loring v. Wittich, 495.

9. Under the statute of this State and the code practiced as modified, an appeal lies from a final judgment by default, which is similar in its character to a decree pro confesso under the practice anterior to the code. Such judgment must conform to the matter of the pleadings of which defendant has notice, the plaintiff not being allowed to take such decree as he can abide by. A judgment by default, inconsistent with the case made in the original complaint and conforming to a new case made by an amended and supplemented complaint, filed three months after service of summons upon the defendant, without notice to him, is not authorized by the code practice as modified by statute in this State. State and Trustees v. J. P. & M. R. R. Co., et als., 708-9.

10. After the time (10 days) allowed by law for taking an appeal, the appeal not being perfected, the Legislature passed an act allowing thirty days, and extending its provisions to cases in which judgment had already been entered: Held, that the act extending the time and reviving the proceeding for obtaining a review by appeal, applied only to the remedy and did not affect a vested right. Two years are allowed for writs of error by which the review could be obtained, and it was competent to extend the time of appealing to the full term of