125 Ga. 319 | Ga. | 1906
(After stating the facts.) When an execution issues upon the foreclosure of a mortgage on personalty, the mortgagor may file his affidavit of illegality, “in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by
As Carter could not set up and avail himself of the matters of set-off by affidavit of illegality to the foreclosure of the mortgage, was he, for that reason, entitled to have such foreclosure proceeding in the city court enjoined, and have all the matters in controversy between him and Arnold finally adjudicated in the superior court? “As to set-off, equity generally follows the law; but if there is an intervening equity not reached by the law, or if the set-off be of an equitable nature, the courts of equity take jurisdiction to enforce the set-off.” Civil Code, §3996. “The mere existence of cross-demands will not be sufficient to justify a set-off in equity. . . A set-off is ordinarily allowed in equity, only when the party
Judgment reversed.