Cook v. Barnett

25 Ga. 664

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court.

Benning, J.

delivering, the opinion.

The Court below held, that, according to the offered evidence, the set off was barred by the statute of limitations.

The counsel.for. Cook, admit, this decision .to be .right, unless it is contrary to something, in the limitation Act of 1806, or that of 1839, but they say, that.it is contary to.the provision in those Acts, respectively, relating to non-residents.

The.provision|n the Act of 1806, (an Act which revives the Act of 1767,) is, that, “if any person or persons that is, or shall be, entitled to any such action of tresspass, detinue, action of trover, replevin, actions of account, actions of debt, actions of trespass for assault, menace,-battery, wounding, or imprisonment, actions on the case for words, be, or shall be, at the time of any such cause of action given or accrued, .fallen, or come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or where the defendant shall remove out of the jurisdictional limit's of this State, that, then, such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as before is limited, after their coming to, or being of, full age, dis-covert, of sane memory, at large, or the return of the defendant into the same, as by other persons having no such impediment should be done.”

The benefit of this provisiones given to those entitled to the sort of actions refered to, by the limitation Act of 1767, the revived Act.

[1.] But the plea of set off in the present case, even if con-, sidered as an action, is not one of those actions. It. is founded on the Act of 1764, to suppress lotteries and prevent gaming ; or on the Act of 1765, to amend that Act j and the Act of 1767, does not refer to any action founded on either of those two Acts.

A similar remark is to be made as to the Act of 1839. That Act includes only cases “ founded on bonds, or instruments under seal;” and “ upon notes, and other acknowledgements under the hand of the party.” This set off not being founded upon anything of these kinds, the case made by it, is not within the Act of 1839.

. We think, then, that the Court-.below was right, in holding the set offbarred by the statute of limitations.

That Court also held, that the answers ought not to be read, because they would criminate the party. making them, Barnett.

[2.] The decision of the other question, being such as it was, renders it unnecessary to decide the question here arising. Still, we think it proper to say, that we regard this ground as insufficient. True, the Act of1764, says, that persons liable to be sued under it, shall be obliged " to answer upon oath such bill or bills in Equity, as shall be preferred against” them; and the answers in this case were not answers to a bill in Equity, but, to interrogatories, propounded under the late discovery Acts ; yet, according to those Acts, the answers they provide for, " shall be evidence at the trial of the cause, in the same manner, and to the same purpose and extent, and upon the same condition in all respects as.if the same had been procured upon a bill in Chancery for discovery.” Cobb Dig. 465, 726.

Judgment affirmed,but noton this ground.