Fannin v. Thomasson

Montgomery, Judge. 1. This was an attempt by defendant in error, who was also defendant in fi. fa. below, to avail himself of an equitable defense to the execution by motion under the Relief Act [537] of 1868. The defense was, that he had been induced by plaintiff’s intestate, before the judgment was obtained, and during the war, to purchase Confederate seven-thirty notes and Georgia war bonds, under a promise that said intestate would take them in payment of the debt; that he, in consequence of the promise, bought the notes and bonds “with what money he had,” (Confederate money) and that he “sold some cotton ” to raise the balance necessary to make the purchase. That he then tendered the notes and bonds to the intestate, which he refused to receive, and in consequence of such refusal the defendant was compelled to hold them until the close of the war, when they perished on his hands. How much cotton was sold does not appear. Nor is it stated what damage, if any, was suffered by the defendant in consequence of the purchase, the refusal to receive the bonds and notes in payment, and the fact that they perished on his hands. The defense, had damage been proved, was an equitable one, of which the defendant might have availed himself by plea before judgment, under our system of pleading, but he was not obliged to do so. Inasmuch as the defense constituted an independent claim against the plaintiff, in the nature of a set-off, his failure to plead it at law does not estop him from setting it up by bill to enjoin the common law judgment: White and Tudor’s Equity Cases, volume 2, part 2, page 466; Pollock vs. Gilbert, 16 Georgia, 398; Mordecai vs. Stewart, 37 Georgia, 364. Chief Justice Warner’s dissenting opinion. 2. His right to set it up by bill being undoubted, he may do so by affidavit of illegality, and motion under the second section of the Relief Act of 1868, in the class of cases mentioned in the Act: White vs. Herndon, 40 Georgia, 493, 501; 42 Georgia, 295. 2. But inasmuch as he failed to show any damage resulting from his purchase of the bonds and notes, he was not entitled to a verdict, and a new trial should have been awarded. Let the judgment of the Court below be reversed.