Smith, Son & Brother v. Printup Bros. & Co.

Jackson, Judge. This was a suit brought by Printup Bros. & Go. against Smith, Son & Brother, as partners, on two bills of exchange, [612] drawn by them in favor of Printup Bros. & Co., on S. P. Smith, and accepted by him, and which he had not paid, but suffered to be protested. 1. The defendants moved for a continuance, on the ground that Joel Branham, Esq., their leading counsel, was sick, and could not attend court. The court refused to continue for the term, but put off the case, notifying the counsel, of whom there were three others, to be ready when the case was again callqd. About nine or ten days afterwards it was called, when Mr. Branham was in court, but still too feeble to participate actively in the management of the case. The motion to continue was renewed. The affidavit to continue was in writing, and did not comply with the statute, which requires the party to swear that the application was not made for delay, and that the counsel was expected to be present at the next term to render service in the case. The affidavits being defective in these two particulars, (see Code §3525), it is unnecessary to consider further the conduct of the court in respect to the continuance; though we could not say that it had abused its discretion, even if the parties’ affidavits had been full. 2. The other error assigned is that the court erred in striking defendants’ plea. The plea was to the effect that defendants had purchased iron from one McElwain, and paid him for it, which was sent by him to Rome, and seized by the plaintiffs wrongfully, though they knew it belonged to defendants, and the iron was worth more than the plaintiffs’ debt now sued, by which plaintiffs owed defendants, and were liable to pay them the value of the iron, and defendants plead its value as a set off. The question is, was the plea properly stricken % In Ingram vs. Jordan, 55 Ga., 356, this court held that, under section 3261 of the Code, demands of a smilar nature could be set off against each other — as contracts against contracts — torts against torts; but that one sort of demand could not be set off against another, as a tort against a contract. [613] There can be no doubt, we think, of the correctness of this decision. The section (3261) prescribes that “ all claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delActo may, in like manner, be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff’s demand.” Evidently, the latter clause of the section means, by the words, “ of a similar nature,” claims ex contracta against claims ex contracta, and those arising ex delicto against those ex delicto, may be set up or pleaded as a set-off, and that a tort, or claim springing out of a tort, should not be set off against a debt arising, out of a contract. In this case the suit is against these drawers of a bill of exchange — purely a contract — and it was sought to set off against such a claim a demand arising ex delicto — out of the wrongful conversion and seizure of iron. It cannot be done. So that the court was right to strike the plea. Judgment affirmed.