45 Ga. 533 | Ga. | 1872
Lead Opinion
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
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.
Concurrence Opinion
concurring.
I concur in the judgment of the reversal in this case, on the ground that the defendant was concluded, by the judgment rendered against him in March, 1867, from setting up the defense relied on. The second section of the Act of 1868, so far as it creates a new equity and new grounds of defense to the contract, and judgment rendered thereon, which did not exist by law at the time the contract was made, and at the time the judgment was rendered thereon, is unconstitutional and void.