Vinson v. Platt & McKenzie

21 Ga. 135 | Ga. | 1857

By the Court.

Mc Donald, J.

delivering the opinion.

[1.] This action was brought in the county of the residence of the drawer, and the acceptor was called out of his county to answer. On this ground the defendant’s counsel demurred to the plaintiff’s declaration, for the want of jurisdiction of the Superior Court of the county of the residence of the drawer of the several bills of exchange sued on. The Court overruled the demurrer and sustained the jurisdiction of the Court. This decision is excepted to. By the Constitution of this State, of 1798 as originally adopted, all civil cases (not respecting title to land) were required to be tried in the county of defendant’s residence, except in cases of joint obligors residing in different counties, which might be tried in the county of the residence of either. By the amended Constitution of 1810 and 1811, joint promissors were placed on the footing of joint obligors in this respect. The constitution was further amended in 1842 and 1843 so as to authorize a maker and endorser or endorsers of promissory notes residing in different counties in this State to be sued in the county of the maker’s residence. The Constitution does not embrace bills of exchange^ by words nor by necessary implication, and therefore parlies to bills of exchange residing in different counties cannot be joined in the same action. They must be sued separately and each in the county of his. residence.

The point made in the pleadings in this case is, whether the acceptor residing in a different county from that in which the drawer of the bills of exchange resides, can be joined in the action with him and be brought to his county to answer. The view already presented disposes of this branch of the case. But I will present a view suggested by my brother Lumpkin as the basis of his judgment, and which would lead to the same result, independent of the construction which we have placed on the Constitution.

Bills of exchange are either included in the Constitution or they are not. If they are, and the acceptor takes the place,of the maker of the note, and the drawer the place of the endorser, then by the very terms of the Constitution, suit must bo brought in the county where the acceptor — the maker resides. If they arc not included in the amended Constitution, still, in analogy to this provision, and all the other analogies of the law, the action should be located where the party primarily liable, resides.

[2.] The Court charged the Jury that interest was to be computed by the law of the place where the suit is instituted, and not by the law of the place where the contract was to be performed, and exception was taken to this charge. The contract was made in Georgia, but it was to be performed in Florida. There are some decisions seemingly the other way, but the general rule is, that where interest is payable on contracts, it is to be paid according to the law of the place where the contract is to be performed. Story’s Conflict of Laws, 4th Ed. § 291.

Judgment reversed.