Lowe v. Rawson

43 Ga. 374

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

Ve think this case comes within the Act of October 13th, 1870. An offset is a pending suit; it is a cross-action. At common law no offset was pleadable; parties were driven to their action. And even now, it is not in the nature of a defense to the suit, since the defendant may plead it or not at his option, and if his debt be the largest he is entitled to a judgment for the excess. A set-off is at last but only a form of action. It must be distinctly set out; the Statute of Limitations applies to it, and so do all the other incidents of a suit. The plaintiff cannot get clear of it by dismissing his suit: Code, section 2856. And the very definition given in the Code says, “ it sets up a demand against the plaintiff Code, section 2848.

We think it comes clearly within the reason of the Act of October 13th, 1870, and we see no error in the application of that Act by the Judge. We think the case was on the whole submitted fairly to the jury. True, the language of the witness may perhaps bear the construction put upon it by the counsel for the plaintiff. He may not have meant that the firm owed him, but he states the facts out of which the indebtedness arose, and he does not say that there had been any settlement or stating of accounts. Indeed, rather the contrary appears. We think the verdict of the jury sustainable, and as the Judge has refused to interfere, neither will we.

Judgment affirmed.