Use v. Davis

• Decision Date: 31 August 1859
• Citation: 29 Ga. 219
• Parties: P. M. Jack for use, etc., plaintiff in error. vs. J. C. Davis, defendant in error.
• Court: Georgia Supreme Court

29 Ga. 219

P. M. Jack for use, etc., plaintiff in error. vs. J. C. Davis, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1859.

Assumpsit in Fulton Superior Court. Tried before Judge Bull, April Term, 1859.

This was an action of assumpsit by Francis M. Jack for the use of Jesse M. Butt against James C. Davis on a due bill given by Davis to Jack for one hundred dollars, dated 23d September, 1857.

The defendant pleaded as a set-off a balance due to him on an account for goods sold and delivered to the plaintiff, Jack; said account running from 26th September, 1856, to 9th April, 1857, and amounting to $271.13, and acknowledged to be correct and just by Jack.

The defendant further pleaded in abatement the infancy of the plaintiff, Jack, before and at the commencement of the suit.

The due bill, which was the foundation of the action, had no words of negotiability.

At the trial plaintiff moved to strike defendant's plea of set-off, on the ground that the demands were not mutual; the due bill sued on and the account set-off not being due and owing to and by the same parties in the same right. The court overruled the motion and plaintiff excepted.

Plaintiff tendered and read in evidence the due bill, and closed.

Defendant proved the account pleaded as a set-off by proving the hand-writing of Jack, the plaintiff, signed to the written admission or acknowledgment at the foot of the account, that it was correct and just.

It appearing that Jack, the plaintiff, was a minor, counsel for plaintiff moved to amend the declaration by inserting the name of — as prochein ami. The court refused to allow said amendment, and plaintiff excepted.

The court then, on the motion of counsel for defendant, dismissed the action, on the ground that being an infant, plaintiff could not maintain the suit. And counsel for plaintiff excepted.

A. W. Hammond & Son, for plaintiff in error.

Whitaker & Gaskill, contra.

By the Court.—Lumpkin, J., delivering the opinion.

We hold the court was right in overruling plaintiff's motion to strike out defendant's plea of set-off. And the case of Gerry vs. Perryman (6 Ga. Rep. 119) is conclusive upon this point.

The writ should not have been dismissed, but amended thus: "Francis M. Jack by his prochein ami or guardian, ad litem, A. B. for the use of Jesse M. Butt, against James C. Davis."

Infants should sue and be sued in their own name by guardian or next friend. And if an infant defendant will not appoint a guardian the court will do it for him.

ASSIGNMENT OF NON-NEGOTIABLE CHOSE IN ACTION. "The assignee of a non-negotiable chose in action takes the same subject to the equities existing between the assignor and the debtor at the time of the assignment." Third National Bank of Atlanta v. Western and Atlantic R. R. Co., 114 Ga. 890 (2), 893; Civil Code, §3037. And see Cohen v. Prater, 56 Ga. 203.

INFANTS, SUITS AGAINST, HOW DEFENDED, "The rule was long since announced that a suit brought against a minor should be defended in his...