Brigham, Kelly & Co. v. Slappey

By the Court — Lumpkin, J., delivering the opinion. According to the views which I entertain of the Act of 1853-54 as to the right of amendment, I shall discuss the broad proposition. Could the actions in these eases have been brought in any form which would have enabled the plaintiffs to have called the defendants together in the county of the residence of either of them ? The cause of action is for a tort, and not the breach of a contract. It is for a wrong independent of a contract. And did the Constitution, until' amended in 1861, intend that in such a case, the defendants residing in different counties should be sued together? Were the words “co-obligors” and “joint promissors” ever understood by the profession to apply to tort feasers ? And this is in reality such a case. The cause of action is the nonfeasance, misfeasance, or malfeasance of the defendants, as joint owners of the steamboat Charles Hartridge. While, therefore, we heartily approve of the provision of the new Constitution which extends the provision of the old Constitution to torts as well as contracts, yet we are constrained to hold, that in the present suit each defendant was entitled to be sued in the county of his residence. Accordingly, we reverse the judgment of the Circuit Court overruling the plea to the jurisdiction of the Court in Bibb county, by Henry Brigham, a citizen of Chatham county. Let the judgment be reversed.