Wm. Overstreet, & Co. ads. Wm. & J. Brown, & Co.
Although a person cannot give jurisdiction by consent to a court, where it had no jurisdiction before, yet where the court has jurisdiction of the matter, and the party has some privilege which exempt him from the jurisdiction, he may wave the privilege if he cVises.
Where one of two partners reside out of the state, it does not take away jurisdiction of the case from the' city court of Charleston; as the act of 1792 provides that where one of two partners is out of the state, the other shall be liable to an action in the same manner as if he were the sole contracting party, which act applies to all courts.
This was an action of assumpsit tried before the recorder of the city of Charleston, in October term, 1826, who made the following report: “ This was an action of as-sumpsit called for trial during the absence of the defendant’s counsel from court. The ease was clearly proved by the plaintiff, and on the point of jurisdiction a witness testified that the defendant Wm. Overstreet, was a resident of this city but his partner Brown resided in Savannah. No question being made before me on the point, the plaintiffs took their verdict. The next day I received the following notice of appeal — Be pleased to take notice that a motion will be made at the next court of appeals in arrest of judgment or for a new trial, on the ground that the case was not within the jurisdiction of the court, inasmuch as one of the partners hf the firm of William Over-street, & Co. lived in Savannah, without this state.”
Rice, for the motion.
St common law-all the parties to a joint contract must have been made defendants. The act of 1792,1 Faust 2t4, authorises suing the partner where *80the others were out of the state, does not apply, because it preceded the establishment of this jurisdiction. The act of 1801, 2 Faust 392 ; 3 Brev. 46 ; Act 1818 p. 26 — On looking into these acts it will be seen that they have jurisdiction only when defendant has been resident ¿tiree months. He cited also, 2 M’Cord 43, on the subject of the jurisdiction. 1 Chitty 313, 427.
Curia, per
Nott, J.
The jurisdiction of the city court is limited to cases arising within the city, not exceeding a certain amount, and to persons residing' within the city. The subject matter of this case then and the person of the defendant, were subject to the jurisdiction of the court. But it is contended that one partner cannot be sued alone, and that as one partner was without the jurisdiction of the court, the other was entitled to shelter himself under his privilege. Perhaps it might be sufficient in this case to say, the defendant has waved his privilege by submitting to the jurisdiction of the court. For although a person cannot by consent give jurisdiction to a court, where it had no jurisdiction before, yet where the court has jurisdiction of the matter and the party has some privilege which exempts him from the jurisdiction, he may wave that privilege if he choses to do so. But the act of 1792, 1 Faust 214, has made provision for this very case. Where one of two partners is out of the state, the other is liable to an action in the same manner as if he were the sole contracting party; and that is not an act applicable to particular persons or courts, but it is a general law equally embracing all. The defendant in this case was therefore liable to this action in the same manner as if he had been a party to a joint and several note. The motion, therefore, is refused.
Motion refused.