4 Ga. 198 | Ga. | 1848
By the Court
delivering the opinion,
This action was founded on a joint and several promissory note, made by Harrison as principal, and Sims as security.
The object of the statute was to prevent a -multiplicity of suits, a.nd, in our judgment, is a wise and beneficial statute, and ought to receive a liberal construction, so as to reach the equity of the parties when it can be done without a violation of any legal rule, 2 Story Eq. 664, section 1436. Exparte Hanson, VS>thVesey, 232. A difficulty was suggested against allowing the defendant's plea of set-off, under the statute, as to the verdict to be rendered by the jury. We think there can be no practical difficulty in that regard. If the plaintiff should be found to be indebted to Harrison, a larger sum than is due on the note, they will find a verdict for the defendant, Sims; and find a verdict in favor of the defend*ant, Harrison, for the balance which may be due him after extinguishing the amount due on the note, as provided by the statute. This being the separate debt of Harrison, as appears on the face of the record, secured by Sims as a joint security, the plaintiff cannot, in our judgment, by electing his remedy to sue them jointly, defeat the right of the principal debtor to plead his set-off under the statute; therefore, he ought to have been permitted to have amended his answer for that purpose;
Let the judgment of the Court below be reversed.