Cato, a Slave, vs. The State.-Opinion of Court. the prisoner. That matter rested on the sole testimony of the prosecutrix, and is entirely uncorroborated by any concurring circumstances. It is true that the prosecutrix swears positively to the identity of the prisoner, as being the perpetrator of the alleged crime, but in this, if not contradicted, her testimony is greatly shaken by what she is alleged to have said to the other witness, Mrs. Alsobrook. She testified that "Mrs. Leonard said she was almost willing to swear it was Cato." Now, it is very evident that at the date of her communication to Mrs. Alsobrook, she was in doubt as to the identity of the guilty person. By what means that doubt was afterwards removed, so as to enable her to swear positively to the fact on the trial, does not appear. Lord Hale, in referring to the character of this offence has well said, "It is true that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent." He then mentions two remarkable cases of malicious prosecution for this crime that had come within his own knowledge, and concludes: "I mention these instances that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may with so much, ease be imposed upon without great care and vigilance, the heinousness of the offence many times transporting the Judge and jury with so much indignation that they are over-hastily carried to the conviction of the person accused thereof by the confident testimony sometimes of malicious and false witnesses." Vile 1 Russ. on Crimes, 690-1. Upon full consideration of the whole case and after the most anxious deliberation, we are of the opinion that the prisoner is justly entitled to a new trial. It is therefore Ordered that the sentence of death passed Amos vs. Campbell.-Statement of Case. upon the prisoner Cato, by the Circuit Court of Jackson county, on the 22d day of October, A. D. 1859, whereby he was adjudged to be executed on Friday, the 16th day of Decamber then next ensuing, be vacated and annulled, and that the verdict of the jury rendered in the said case also vacated, annulled and set aside, and that the cause be remanded to the said court, with directions to award to the prisoner a new trial therein. LAWRENCE N. AMOS, ADM'R OF ELIJAH GAYLOR, DECEASED, APPELLANT VS. NEIL CAMPBELL, APPELLEE. 1. A trust,in its strict and technical sense, is known only in equity, and so long as it subsists it cannot be reached, as between trustee and cestui que trust,by the statute of limitations. 2. To exempt a trust from the bar of the statute, it must be, first, direct trust; second, it must be of a kind belonging exclusively to the jurisdiction of a Court of Equity, and, third, the question must arise between the trustee and the cestui que trust. 3.An action at law for a distributive share of an intestate's property cannot be maintained against the personal representative, although he may have expressly promised to pay. 4. Whether a final settlement in the Probate office and an order to pay over to the distributee will give the right to maintain such action-Quaere? 5. The settlement of an executor's or administrator's account in the Probate office does not change his character as trustee, and he will still hold any balance in his hands, for distribution, and not adversely. 6. There is no rule defining definitely what lapse of time will bar a purely equi table demand. Each case must depend upon its own circumstances. 7. The maxim, vigilantibus non dormientibus jura subveniunt,is founded upon considerations of public policy and enlarged views of right and justice, and is to be highly commended when properly applied. 8. There is no particular form necessary for the notice directed to be given in the statute of non-claim. It should however, be so full and ample in its terms as to make it a WARNING to those who have demands against the estate. Amos vs. Campbell.-Opinion of Court. 9. Under the policy of the several statutes regulating the administration of estates, the rights of creditors and of distributees stand upon a different footing. While the statute of non-claim will operate as an absolute bar to the former, it will not prevent a recovery by the latter. 10. The object and design of the statute of non-claim is three-fold ;First, to facilitate the settlement of estates by prescribing a limit of time within which creditors and other persons having an interest should be compelled to exhibit their claims preparatory to a final distribution; second, to protect the executor or administrator in all payments which he might make bona fide after the expiration of the two years; third, to quiet the title of the legatees or distributees to the property received as such legatees or distributees. 11. Where there has been unreasonable delay on the part of a distributee to call administrator to account, he will be allowed, at farthest, only simple interest on his demands. This case was decided at Marianna. Appeal from Escambia Circuit Court. A statement of the case will be found in the opinion of the court, to which reference is made. Jordan, Yonge, McClellan & Barnes for appellant. DUPONT, C. J., delivered the opinion of the court. The appellee brought suit on the equity side of the Circuit Court of Escambia county against the appellant as administrator of the estate of Elijah Taylor, deceased. The bill filed in the cause sets out, that one Charles Campbell, being possessed of a considerable amount of personal property, departed this life in the year 1829, leaving the complainant as his only child and heir; that after the decease of the said Charles Campbell, one Elijah Gaylor obtained letters of adimnistration on his estate and entered upon the administration thereof; that the said administrator, on the 13th day of April, 1836, presented to the Probate Court of Escambia county his account current as administrator of the estate, which account was then allowed by the Judge of the Amos vs. Campbell.-Opinion of Court. said court, and a balance of $1,122.9712, found to be due by him to the estate of the said Charles Campbell. The complainant further charges, that this balance has never been accounted for by the said administrator and that, as sole distributee of his father's estate, he is entitled to the said balance, after deducting the amount that his mother may have been entitled to as the widow's share. The bill further states, that the said Elijah Gaylor departed this life in the year 1853, and that on the 28th day of March, 1854, administration of his estate was granted by the Judge of Probate of Santa Rosa county to the said appellant and asks that the said administrator of the said Gaylor may come to an account with the complainant for the said balance so remaining against him at the time of his death. The answer of the defendant, admitting that the complainant is the only child of the intestate, Charles Campbell, alleges that his intestate, Elijah Gaylor, intermarried with the widow of the said Campbell on the 17th day of March, 1831, and thereby became entitled, under the statute, to one-half of the estate of the said Campbell. It further admits that Gaylor did obtain letters of administration on the estate of Campbell, and alleges that in September, 1831, he published in the Pensacola Gazette, for the space of eight weeks, a notice to the creditors, legatees and distributees of the estate to present their claims within the time prescribed by the statute; that after the payment of all the debts and expenses incident to the administration the said Gaylor made a final settlement of his accounts in the Probate Office and thereupon (as defendant believes) obtained a final discharge from the Office of Administrator. The answer further alleges that the said Gaylor, after retaining the portion of the estate to which he was entitled in right of his wife, paid over to complainant whatever amount was coming to him from the estate, and that in fact, upon a fair settlement between the complainant and the estate of the said Gaylor, Amos vs. Campbell.-Opinion of Court. it would be made to appear that the said complainant is largely indebted to the said estate for over advances made to him and on his account by the said Gaylor in his lifetime. The answer further sets up, by way of a plea in bar, that the complainant did not present to Gaylor, the administrator on his father's estate, any claim or demand as distributee or otherwise at any time within three years next after the publication of the notice aforesaid. It also sets up further, by way of plea, that the amount so claimed by the complainant was due (if at all) five years and more before the death of the said Gaylor. And further, by way of plea in bar, the answer sets up and insists upon it as a full defence of the bill, that "none nor either of the said supposed cause or causes of action mentioned by the said complainant in his said bill of complainant did arise or accrue to the said complainant within five years next before the death of the said Elijah Gaylor, deceased, nor within five years next before the commencement of this suit." To this answer the complainant filed the general replication, and subsequently the following admissions in writing were filed with the papers of the cause, viz: "The complainant in the above stated cause admits that Elijah Gaylor married Nancy Campbell, who was the widow of Charles Campbell, deceased, and mother of complainant." The following notice is also admitted to have been published in the Pensacola Gazette, viz: "Letters of administration having been granted to the subscriber on the estate of Charles Campbell deceased, all persons having claims on said estate are requested to present the same for settlement within two years, and those indebted to the said estate are requested to make payment. Sept. 10-8w-17 ELIJAH GAYLOR, Adm'r." 66 The following admission in writing was also filed: "Admitted, that two months' notice of final settlement was given in 1835." |