Garlington v. Priest

Citations

• 13 Fla. 559

Syllabus

<p>1. After demurrer sustained to a plea, if the defendant by leave of the court files a new plea, he thereby abandons his former plea and the exceptions to the judgment on the demurrer; and the last plea being demurred to and the demurrer sustained, this court can review only the judgment upon the demurrer to .the last plea.</p> <p>2. After successive pleas have been held bad, on demurrer thereto, it is error to enter a judgment for want of a plea; the proper judgment is a final judgment on the demurrer.</p> <p>3. The first section of “ an act providing for the stay of executions in this State,” approved Dec. 13,1861, providing that “ there shall be no sales under execution and judgments at common law or decrees in Chancery in this State, until twelve months after peace is made and proclaimed or until otherwise provided by law, between the Confederate States of America and the United States of America, except by the consent of the defendant or defendants,” provided, that in cases of levy the “ defendant be required to give bond with security for the forthcoming of the property on or at the time above specified,” is void as contravening the spirit of the constitution of the United States recognizing the establishment of the Confederate government, and contemplating the dismemberment and destruction of the Union of the States.</p> <p>4. When a party has filed his pleas and they are pronounced insufficient upon demurrer, it is not a matter of course that the defendant may plead cte novo. The judge should exercise a sound discretion in permitting new pleas to be filed, and should inspect the plea offered, and if it is a mere repetition, of a previous plea or is not a good defence, or seems to be interposed for delay, or if there is any other like good reason, he should refuse leave to fie it.</p> <p>Per Westcott, J.:</p> <p>Where a bond was given in 1861 for the forthcoming of slaves levied upon by execution, the condition of which was that the slaves should be deliver