Edwards v. Union Bank of Florida

| Fla. | Jan 15, 1846

Douglas, Chief Justice:

This is an action of trespass, instituted by John D. Edwards against the Union Bank of Florida, in the Superior Court of Leon county, in the Middle District of Florida.

The declaration contains two counts. The first charges : “ That the said Union Bank of Florida, by its servants, officers and agents, on the sixteenth day of April, one thousand eight hundred and forty-two, and on divers other days and times between that day, and before the commencement of this suit, with force and arms, &c., broke and entered divers, to wit: four closes of the said plaintiff, situated in Jefferson county, to wit: in the county aforesaid, and then and there broke down,” &c. — (setting out the other matters of the trespass in the usual form.)

The second: “ And for that also, the said defendant, by its officers, servants and agents aforesaid, on the days and years aforesaid, at the county aforesaid, impressed, seized, took, and carried away, divers, to wit: forty-one negro slaves, then and there being the servants, and in the possession of said plaintiff, and unlawfully kept and detained the said slaves, só being the servants of said plaintiff from and out of the service of said plaintiff, without the license or consent of said plaintiff, and against the will of said plaintiff; for a long space of time, to wit: until the commencement of this suit, whereby, &c. (the usual form in such cases), to the damage of said plaintiff of one hundred thousand dollars,” &c.

To this declaration, the defendant put in the plea of not guilty; upon which issue was joined, and that issue was submitted to a jury, who returned a verdict for plaintiff, and assessed his damages upon the first count at two thousand dollars; and upon the second at seventeen thousand dollars; making in the whole nineteen thousand dollars.

And thereupon the defendant, by its counsel, moved the Court for “ a rule nisi,” to arrest the judgment, for the reasons following, -to wit -

First: Because an action of “ trespass vi et armis,” doth not lie against a corporation.

Second: Because if such .an action can be maintained at all, it doth not lie in this case, the entry being warranted by law.

ThirdBecause the plaintiff has not, by law,' a right to a judgment in his favor.

Which rule was granted; and after argument had thereon, was by the consideration and judgment of said Court sustained; and the judgment upon said verdict was accordingly arrested.

Whereupon the said plaintiff, by his attorneys, prayed an appeal to the Court of Appeals of the Territory of Florida, which was granted accordingly, and the cause was carried up to the said Court of Appeals, whence it was transferred into this Court, under the provision contained in the last clause of the 17th article, (Schedule and Ordinance,) of the Constitution of the State, which declares that eCll actions at law, or suits in Chancery, or any other proceeding pending, or which may be pending in any Court of the Territory of Florida, may be commenced in, or transferred to such Court of the State, as may have jurisdiction of the subject matter thereof 5 andtff the provision contained in the 14th section of the act of the General Assembly of this State, of the 25th July, 1845, which was passed to carry into effect the above mentioned provision of the Constitution, so far as related to cases pending in the said Court of Appeals.

Upon the first day of the present term of this Court, a motion was made by the counsel for the Appellee, to dismiss this case, for the following reasons, viz:—

First: Because it has no rightful place in this Court; and this Court has no jurisdiction of the same, no appeal or writ of error having been sued out, or taken to this Court; and this Court1 having no appellate jurisdiction of the case.

Second: Because the judgment of the Leon Superior Court is fi. nal, until reversed by the proper appellate tribunal, constituted by the acts of Congress of the United States.

Third: Because this Court has appellate jurisdiction only over those inferior Courts, which the Constitution of the State of Florida has established, and which compose, with this Court, the judiciary power of the State.

Which last motion was overruled, for the reasons given in the opinion of the Court, pronounced by Judge Baltzell, on a former day of this term, in the case of Charles-D. Stewart vs. Thomas Preston, jr., upon a similar motion, founded upon the same reasons as the motion to dismiss this case.

After which, the counsel for the appellant filed herein the following assignment of errors, to wit: — ■

First: The Court erred in sustaining the motion in arrest of judgment.

Second: The Court erred in giving judgment for defendant, and not for plaintiff.

Which errors we now proceed to examine. From this state of the case, we are first called upon to inquire, whether trespass vi et armis lies against a corporation ?

It is said, in some of the old books, that trespass does not lie against a corporation, because a capias and exigent does not go against a corporation. But an exigent was never known in practice in Florida, and the capias has long since been virtually banished from it, in all civil cases, by the provision contained in the last clause of the fifth section of'the act to amend an act regulating judicial proceedings, approved November 23d, 1828, which declares that no person shall be required to give bail for his or her appearance, to any original writ or summons, emanating from a Court of Law; and the fifty-third section of the same act, Duval’s Comp, page 99, by which it is declared: “ That in no case shall a capias ad sat-isfaciendum be issued by the Clerk, upon judgment of the Court— nor shall the body of any defendant be subject to arrest or confinement, for the payment of money, except it be for fines imposed by lawful authority ;” — so that, neither a capias or exigent ever issued in an action against a corporation in this State in any case. “ Ces-sante ratione, cessat et ipsa lex.” But it is believed, that the position thus stated, is laid down more broadly than was ever warranted by the principles of the common law. It was held, at an early period in England, that, “ a corporation might be defendants in an action of quare impedit, and the hindrance is an act of tort.” And the case of Butler vs. the Bishop of Hereford and the University of Cambridge, Barnes C. P. 350, is cited by Lord , Ellenborough in the case of Yarborough vs. the Bank of England, 8 East. Reps. 9, to this point: “ To which he says, a multitude of other instances may be added, as Rost. 497, 2 Mod. En. 291. Winch. 625—700—721. 2 Lut. 1100, and 3 Lev.. 332. The statute of 9 Henry the 4th, chap. 5, recites the practice in assizes of novel “ disseisin,” and other pleas of land, of naming the mayor, and bailiffs, and commonalty of a franchise, as disseisors, in order to oust them of holding plea thereof; and directs the inquiry before the Judges of assize, whether they be disseisors or tenants, or be named by fraud;”— which most clearly proves, that they may be considered as disseisors. And there are instances of trespasses against corporations, in 44 Ed. 3d. 2 Pl. 5, which was after 22 Ass. PI. 67, cited in the argument of the case of Yarborough vs. the Bank of England. Trespass, says Lord Ellenborough, was brought against the mayor and commonajty of Hull, and another person; and the objection was made, not that trespass would not lie against the corporation, but as a natural person was joined with them;, there must be different processes. A distress against the former, and a capias against the latter. But the objection does not appear to have prevailed — and in 8 Hen. 6, 1—14, trespass was brought against the mayor, bailiffs and commonalty, and one of the commonalty; and the objection was, not that trespass would not lie against the corporation, but- that it could not be supported against them, and an individual of their body. And Bro. on Corporations PI. 24, says, the.better opinion was, that the writ was good ; and 14th Hen. 8th, 2, says it was so awarded, and that in that case, all the justices agreed. The case of Yarborough vs. the Bank of England, was decided on the principle, that actions of tort, without distinction, would lie against corporations. Lord Ellenbo-rough, who delivered the opinion of the Court of King’s Bench, cited several cases, (some of which we have already cited,) in which trespass had been maintained, in very early times, against corporations, under circumstances which preclude the idea or inference that an objection to the form of the action was then considered maintainable. His own opinion was, that trespass had been, and might be maintained; and that the want of authority, under the corporate seal, to do the act complained of, was not material. Both Viner & Comyn, it is true, speak of the law as settled, that trespass lies not against a corporation aggregate. Both assign the same reason, viz: that capias and exigent do not lie; and cite Brown on Corporations. Thealal & Thorpe’s Assizes.

In Riddle vs. the proprietors of the locks and canals on the Merrimack river, 7 Mass. Reps. 186 — 8, although an action for a non-feasance, Parsons, Chief Justice, entered fully, and very ably, into this question, and shows, upon the authority of Thealal himself, the principal reference of Viner & Comyn, that Thorpe’s opinion, which has been so much relied on, had been overruled in England, as to certain trespasses; and takes what we deem the true and correct distinction, between corporations of a public nature, called quasi corporations, such as towns, cities, &c., and proper corporations .aggregate, by which is meant money, and business corporations, against which the action may, (and we think sound policy requires should,) be maintained.

In the case of Chesnut Hill, &c., Turnp. Co. vs. Rutter, 4 Serg. & Rawle, Rep. 6, which was an action of trespass on the case for stopping a water course, it was strongly objected, that a corporation could not be guilty of a tort; but Chief Justice Tillman said, that this doctrine was fallacious in principle, and mischievous in its consequences, as it tends to introduce actual wrongs, and ideal remedies; for a Turnpike Company might do great injury, by means of laborers having no property to answer damages recovered against them ; that it was much more reasonable to say, that where a corporation is authorised by law to make a road, if any injury is done in the course of making that road by the persons employed under its authority, it shall be responsible in the same manner as an individual is responsible for the acts of his servants touching his business, and “ there is no solid ground for a distinction between contracts and torts.” Angeli & Ames on corporations, 224, 226, is also authority to this point. And Chief Justice Marshall in the case of Towle vs. The Common Council of Alexandria, 3d. Peters’ Rep. 409, lays it down as well settled, “ that money corporations, or those carrying on business for themselves, are liable for tortsnot of particular description only, but torts generally committed by their agents. In the case of John Whitemongs Ex. vs. The Wilmington and Susquehanna Rail Road Company, 2 Harrington’s Rep. 514, it was held, that “trespass will lie against a corporation,” and in the case of Dater vs. Troy Turnpike and Rail Road Co. 2 Hills N. Y. Rep. 632, Cowen, Justice, said, “the old doctrine always admitted to be questionable, (1 Kyd on Corporations 223,) that trespass or ejectment will not lie against a corporation, is exploded by modern authorities,” and in the case of the second Precinct, in Rebobath vs. The Cath. Cong. Church and Society in Rebobath, 23 Pickerings Rep. 140, the Court remarked, “it is said that an aggregate corporation cannot commit a disseisin unless the entry be authorised by their deed; and so, if a corporation be disseised, the entry to revest their estate must be by an authority under seal. This, says the Court, was undoubtedly the ancient doctrine as to corporations, but a more liberal doctrine has long since prevailed, and as the law now is, corporations may be bound by implication from corporate acts without a vote or deed, and the cases of the Canal Bridge vs. Gorden, 1 Pickering Rep. 297, and Episcopal Charitable Society vs. Episcopal Chuch in Dedham, 1 Pickerings Rep. 372, are cited.

So trover or assumpsit, or trespass, will lie against a corporation as against a natural person. Fostor vs. Essex Bank, 17 Mass. Rep. 503. So a town or Parish may. acquire a title by disseisin, by an exclusive adverse occupation, although the occupation was not authorized by any writing under seal, Milton vs. First Parish in Milton, 10 Pickering’s Rep. 452, and it is not a little remarkable, that the case of Bloodgood vs. The Mohawk and Hudson Railroad Company, which was an action of trespass, Quare Clausum Fregit, and is first found in 14 Wendell’s Rep. 51, and again in 18 Wendell’s Rep. 9, should have passed through all the Courts of the State of New York, without objection as to the form of the action, if (as is contended,) such an action doth not lie against a corporation. Indeed it is strong evidence, that both the bar and the Courts of that great and enlightened State, consider, as did the late venerable Chief Justice Marshall, that it is well settled, “ that money corporations, or those carrying on business for themselves, are liable for torts, committed by their ser-vanfs or agents in the course of théir business.” ^ And in view of all these high authorities, we feel-ourselves constrained so to regard it. If however this point was left in doubt by the general current of authority, our statute, directing the mode of instituting suits against corporations, Duval’s Comp. 104, the first section of which provides, “ that in all cases actions, or suits -which' may be instituted against any corporation, instead of the process heretofore (used to compel, the appearance of such corporation,-it shall'bo sufficient to .issue ‘a sum mons’ to- the Marshal or other proper officer, (now the Sheriff,) reciting the cause of. action, and summoning the said corporation to appear and answer the same on the proper return day,” &c., should be permitted to settle the question.

This brings us to the second reason-assigned for arresting thejudg, ment which was, “that'if such an action could.be maintained at all, it doth not lie in this case, the entry being warranted by law.” It is a sufficient' answer to this position to say, that there appears to be nothing in the record to sustain it, and after ave'rdict against the’ defendants upon the only issue in the case, upon the plea of not guilty, it comes too late. The third and last reason assigned was that the plaintiff, had not by law a right to a judgment in his favor. This is very general, as is also the last error assigned, viz: “ that the Court erifed in giving judgment for the defendant,” but it is under this third reason, that the appellee urges the want of jurisdiction in the’ Superior Court of Leon County to try this case. The cause of action, it is- alleged, (if any was committed,) was committed in Jefferson County ; that the cause of action is local not transitory, and could not therefore -be rightfully instituted or tried in Leon County. It is very curious and instructive, says a late writer upon this subject, (who seems to have examined it extensively and with considerable ability,) to trace the progress of the English law respecting the locality of actions. During the earliest ages of our judicial history, juries were selected for the very reasons which would now argue their unfitness, videlicit their personal acquaintance with the parties, and the merits of the cause. And few rules of law were enforced- with greater strictness than those which required the venue, visne or vicemm, or in other words the neighborhood’ whence the jurors were to be summoned, should be also that in which the cause of action had arisen, in order thát the jury, who were to determine it, principally from-their own private knowledge, and who were liable to be attainted, if they delivered a wrong verdict, .might be persons likely to be acquainted with the nature of the transaction which they were called upon to try. In order to effect this end, the parties litigant, were required to state in their pleadings, with the utmost certainty, not merely the county, but the very venue, i. e. the very district .hundred or mile within that county, where the facts» that they alleged had taken place,' in order that the Sheriff might'be'directed to summon thé Jury from the proper neighborhood,1 in case issue should be taken on any such allegations. It followed of course, that a new venue was designated, as often as the parties litigant shifted.the scene of the transaction from one part' of the county to another. This was however soon found to produce great inconvenience, for in mixed transactions, which may happen partly in one place and partly in another, it was extremely difficult to ascertain the right venue, and as the number of these transactions multiplied with increasing civilization, these difficulties about determining the place of trial became numerous and of constant occurrence, ánd soon induced the Courts to take a distinction between transitory matters, such as contracts which might happen any where, and local ones, such as trespass to the. realty, which could Only happen in one particular place, and regulations Were adopted respecting- transitory actions, and from time to time changed, and modified to suit the exigencies of the times, (which it is not necessary for us now to notice.) Bjut where a matter alleged in pleading, was of a local description, whether the allegation-happened in a declaration orín any subsequent pleading, the venue for the trial of such matter could be no where but at the very place,where it was alleged in pleading to have happened, and therefore even in cases the most' transitory, if the cause of action was laid'in'London, and there was a local justification as at Oxford, the cause must have been tried in Oxford, not in London. Ford vs. Brook, Croke Eliz. 261. Bower’s case Moor. 410. “ And it was probably this strictness of the law with regard to venue* which rendered it necessary to confine the defendant so long to a single pl#a, since had he pleaded several pleas on which issues had been taken triable by different venues, there could have been no single trial of the action, and accordingly we find that it was not till after the effect of the statute of 16 and 17 Car. 2, on venues, had become well settled, that the very same year'whi'ch put an end to the last remnant of the old severity, by abolishing the necessity of summoning hundredors, also endowed the defendant with a right which he ought in justice always to have possessed, of stating every thing in his defence, which can by law be made available to exonerate him; the right corresponding to which, that namely of replying to- the de-fence, every thing which has a direct tendency to rebut it, is even in our more advanced times denied the plaintiff.” 1 Smith’s leading cases 481, in note. -Thus stood the law in England in regard to local actions, and defences at the time of the passage of the'act of 16 and 17 Car. 2, Cap. 8, concerning venues, (one of the statutes of Jeo-fails,) which declared, “ that after verdict,' judgment should not be stayed or reversed, for that there is no right venue, áo as the cause were tried by a jury of the proper county, or place where the action is laid.” 1 Chitty’s PI; 279-283. Considerable difficulty arose on the construction of this statute, many lawyers contending that the words, “ the proper county or place where the action is laid,” must be understood to mean the proper, county or place, where the issue arises, so that if the issue arose at Dale in Oxfordshire, and the venue was Sale in the same county, here they ■ said was a case within the same statute, there being a right county, but a wrong venue. But it was at length decided in the case of Craít vs. Boite, 1 Saund. 246, that the words, “ where the action was laid,” mean where it was laid in the declaration, not in any subsequent pleading; and accordingly it has ever since been held, that it is sufficient-if the jury be summoned from the venue laid in the declaration. 1- Smith’s Leading cases 482 in note. In local actions, the only modes of objecting to the venue are by demurrer. Thrale vs. Cornwall, 1 Wilson 165, or at the trial as a ground of nonsuit. The Mayor, &c., of London vs. Cole et al. 7 Term Rep. 588.- Stevenson vs. Lambafd, 2 East 580. Brackshaw vs. Hopkins, Cowp. 410. Soutler vs. Heard, 2 Bla. Rep. 1033. In local actions, if the venue be laid in the wrong County, and the'objection appear upon the record, it is clear, that the defendant may demur. 1 Saunders 241. The Mayor, &c., of Berwick vs. Ewart, 2 Bla. Rep. 1070. Mellon vs. Barber, 3 Term Rep. 387; and if it do not appear on the record, he may under the general issue avail himself of the objection at the trial, as the ground of nonsuit. 1 Chitty’s PI. 284-285.

It is contended, on behalf of the appellee, that the case meant in the statute of 16 and 17 Car. 2, would be this r If the defendant were sued in this case in Jefferson county, and the action tried there, and the venue laid in the declafation was “ Leon county, ss.,” and ’a number of cases were cited by his counsel in support-of this position. As this is á very material point in this case, we have bestowed upon it that anxious attention, which the important bearing that it has upon the issue in this case demands., But after the most careful examination of the question, and the authorities presented upon it, we cannot assent to that proposition. To our minds, it seems to be at variance with the current of authorities on the subject. The case of Crafts vs. Boite, 1 Saunders 387 to 389, first settled the true and proper construction of the statute of the 16 and 17 Car. 2. In the case ef the Mayor, &c., of London vs. Cole, 7 Term Reps. 583—584, Lord Kenyon, Ch. J., delivering the opinion of the Court, and speaking of the statute of 16 and 17 Car. 2, said: “I cannot express myself in better terms than Kelynge, Chief Justice, and Rainesford and Moreton, Justices, did, in one of the cases cited, who said the words of the statute are plain, that the issue was tried by a jury of the proper county where the action was brought, which was within the express words of the statute, and, (as they conceived,) within the intent of the statute.” The one of the cases cited, as mentioned by Lord Kenyon, was that of Craft vs. Boite, 1 Saunders, 337, 339, by which the true and correct construction of this statute was first settled. In note 3, at page 339 of this book, it is said: The judgment in this case was at first received with considerable disapprobation ; and Lander vs. Elliott, Camb. p. 75, is cited to sustain the remark ; the better opinion being, (says the annotator,) that the intent of the statute was, to aid a wrong venue in the same county, where the issue arose, and not a wrong county, according to the distinction made by Saunders. However, (he adds,) the subsequent decisions are conformable hereto; and 2 Lev. 164 — 165. Adderly vs. Wise, Vent. 263. Jennings vs. Hanking, S. C. 2 Lev. 121. 3 Keble, 509. Sir T. Raymond, 292. Horton vs. Nausan, 3 Lev. 394, (Hunt’s case, and Briggs vs. Chew, there cited.) 1 Lord Raym. 330. Sir Richard Leving vs. Lady Claverly, S. C. Cooth. 448. 2 Lord Raymond, 1212. Maitland vs. Taylor, and 7 Term Rep. 583. The Mayor of London vs. Cole, are cited as “ the subsequent decisions conformable thereto.” In Comyn’s Digest, 260, it is said: “ If a local action be brought and tried in a wrong county, the defect is aided after verdict, by statute 16 and 17 Car. 2, C. 8.

The general issue was pleaded in this case; the cause was tried in the Superior Court, and by a jury of Leon county, where the action was brought. As the land upon which the trespass was committed, is shown by the declaration to be situated in Jefferson county, the defendant might have demurred; had it not been thus shown, it might have availed him on a motion to rule out the. testimony, as to the count in “ quare clausum fregit.” This is in accordance with the principle upon which the case of McKenna vs. Fiske, 17 Peters Rep. 245 to 250, was decided. This was an action of trespass, brought by the plaintiff in error against the defendant, in the Circuit Court of the District of Columbia, for the recovery of damages, for a large amount of goods and chattels, rights and credits, and personal property, taken and detained, and destroyed by. the defendant. The declaration contained two counts, one for trespass to personal chattels,- the other was; for “ quare clausum' fregit” in the ;county of Washington. On the trial, the plaintiff offered to prove that the defendant, with a large force, of armed men, came to the store house or shantee of the plaintiff, in Alleghany county, iii the State of Maryland, entered into the same, and -took and carried away the goods and chattels stated in the declaration, &6.; and other, evidence was offered to show the value of the goods, The Court refused to-permit thevevidence to go to the jury. Upon’ an exception to this ruling, the case was carried up to the Supreme Court of the United States, which, although it held that, the evidence'offered, as( to the local count, was not competent, yet sustained the exception taken by the plaintiff, to the ruling of the Court, below, in regard to the evidence excluded, and remanded the cause for further proceedings. And see also, 1 Chitty’s PI. 264.

In the case before us, no objection was made to the -reception of the evidence in the Court below, on either count. ' The jury found for the plaintiff. The defect is cured by the statute of 16 and 17 Car. 2, before cited. The Court, therefore, erred in arresting the judgment upon it.

It was intimated, (but not strongly urged,) by the counsel for the appellant, that our'statute of Jeoiail, which is found in the act above referred to, regulating judicial proceedings, of 23d November, 1828, is that of 32 Henry 8, chap. 30,< sec. 1, and not that of 16 and 17 Car'. 2; and a doubt was expressed, whether the last mentioned statute is in force in this' State — -but the act of November 6th, 1829, entitled, an “ act providing for the adoption of the common and statute laws of England,” &c., which was passed one year after the judicial act, declared that the‘common and statute law of England, which are of-a general, and not of a local nature, with certain exceptions, (none of which include the statute of 16 and 17 Car. 2,) should-be of force in the Territory of Florida. Duv. Com. 357. This act is continued, and made of force in this State, by the 17th article, (Schedule and Ordinance,) of our Constitution.

Hitherto, we have been considering this question, without reference to the act directing the mode of instituting suits against Corporations, before referred to upon another subject — the second section of which provides: — “ That if any summons be issued against any banking, rail road, insurance or.incorporated company, service on the president' or other head, or in hisabsence, on the cashier .or treasurer; or in the absence oí both the president or chief officer, and the cashier or treasurer, then on any director of such company; such president or other chiei officer, cashier, treasurer, or director, being, at the time of service, within the county in which he usually resides, shall be deemed sufficient service of the sajd process.” This act was approved February 11th, 1834. See Duval’s Comp. 104 — 105. The object of this latter provision, (“ such president, &c., being at the time of such service, within the county in which he usually resides,”) is certainly not very clear. But it is difficult to imagine any reason for it, unless it be, that the Legislature contemplated such residence to be in the county where the office of such company should be kept, and intended the trial to take place in that county, thereby bringing such corporations within, (if they were not already so,) the provisions of the 10th section of the judicial act above mentioned, by which it is declared: “ That no suit should be brought to any of the Superior Courts of the Territory, against any person residing therein, Unless the same be instituted in the judicial district and county in which the defendant resides.”

By the first section of the “ act to incorporate the subscribers to the Union Bank of Florida” — Duval’s Comp. 442 — it is provided : “ That a bank shall be established in the city of Tallahassee, under the title of the ‘Union Bank of Florida,’ ” &c. The Court may take judicial notice that Tallahassee is in Leon county, (where the venue in this case was laid, and where this cause was tried,) that being the place where, by law, the Courts for this county are required to be holden. This suit was instituted in that Court, and fit may well be doubted whether, under the- peculiar provisions of the statutes referred to, it could properly have been brought in any other. The distinction upon which the question under discussion is based, is purely technical. This was so held by Chief Justice Marshal, in the case of Livingston vs. Jefferson, 2 Brock. Rep. 203, (cited at the bar,) and from the terms in which he expressed himself in delivering his opinion in that case, it appears quite evident that he would gladly have seized upon any statutory regulation, which could, with propriety, have been construed to abolish the distinction between local and transitory actions, especially that class of them in which possession of real estate is not the object of the suit, and where the redress sought is only in damages. In that case the "objection was taken by demurrer.

It seems to have been the intention of the Legislature to abolish this distinction, by the statutes cited to this point. Whether that be the effect of these statutes or not, this Court is clearly of opinion, that they confer upon the defendant, in cases like the present, the privilege of having any cause tried in the county where he resides, which the plaintiff may bring against him there ; and that, after verdict, it is too late for him to object that it was tried in the wrong county. No objection was taken to the locality of the action in the Court below, and for the causes stated, such objection cannot be taken now.

The judgment of the Court below, must be reversed, with costs; and the cause remanded to the Circuit Court of Leon county, for further proceedings, in accordance with this opinion.

Per- totam curiam.