Follendore v. Follendore

24 S.E. 407, 99 Ga. 71

• Court: Supreme Court of Georgia
• Decided: March 23, 1896
• Status: Published

Opinion

Atkinson, J.

1. Though the defendant in an action ex delicto, brought in a justice’s court, may plead as a set-off a demand against the plaintiff arising ex contractu, where the latter is insolvent and unable to respond and the collection of the defendant’s claim would otherwise be hazarded, yet, if the alleged insolvency is not proved, the plaintiff, upon making out his case, is entitled to recover, although he may admit the correctness and justness of the defendant’s counter-claim. This follows from the general rule that a claim arising ex contractu cannot be set off againsit a claim arising ex delicto, except for special equitable reasons which must be made to appear.

2. In the present case there was no evidence of the insolvency of the plaintiff; and therefore the court did not err in overruling the certiorari. Judgment affirmed.