
    F. M. Jack, for use, &c., plaintiff in error, vs. J. C. Davis, defendant in error.
    [l.] The assignee of a chose ill action, not negotiable, takes it subject to all the equities, which existed between the assignor and the maker.
    [2.] An infant should always sue and be sued in their own name, and appear by guardian or next friend. And if an infant fail or refuse to appoint one, the Court at the instance of the plaintiff, will do it for him.
    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 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, 1S57, and amounting to $271 13, and acknowledged to be correct and just by Jack.
    The defendant further pleaded in abatement, tbe infancy of the plain tiff, 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. 5
    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.
    
   — Lumpkin J.

By the Court.

delivering the opinion.

We hold the Court was right in overruling plaintiff’s motion, to strike out defendants 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.  