2 Fla. 532 | Fla. | 1849
Opinion by
This cause was brought up by writ of error from Leon Circuit Court. The declaration contains but a single count, and that is for.
The error assigned is this : “ The Court erred in sustaining the defendant’s demurrer to the plaintiff’s replication.
And, upon á foil consideration of the question presented, we think" the error well taken. The question arises upon the provisions of the 7th section of the act of November 21st, 1829, (Duval’s Comp., 106, Thompson’s Digest, 320, No. 4,) which says, “ Summons ad res'pondendurn shall be made returnable to the Court having jurisdiction over the County in which the defendant resides, or the cause of action accrued ; and the cause shall not be tried in any other County” — with certain exceptions not affecting this case and therefore not necessary to be stated. The plea proceeds upon the idea that the cause of action arose from the fact that probate of the will of John W. Lea was made in Wakulla County; and that the defendant there ■undertook and assumed the duties and responsibilities of the office of ■executor, &c.; but this only goes to the right of action. The statute relates to the cause of action and not merely the right to sue. When Andrew J. Lea made probate of the last will and testament of John Williams Lea and took upon himself the duties and responsi-, bilities of the office of executor of said will, it gave to the plaintiff a right to sue him as such executor, provided he had a jpre-existing cause
Per curiam.