Reid v. Brinson , 37 Ga. 63 ( 1867 )

Harris, J,

The principal question in the record requiring the decision of this Court, is, was the Judge below right in holding that the distress warrant itself was prima facie evidence of the indebtedness of defendant, after issue had been made by the counter affidavit of defendant. It is difficult to distinguish the legal process issued at the instance of the plaintiff below, from other process in Courts, and how they can become direct evidence when traversed, or rather prima facie evidence to sustain the demand of a party, is not apparent to us. When an issue is made, as in this case, we take it that the onus of proof of indebtedness is on plaintiff, who should, by some witness or writing signed by defendant, have shown the amount of rent agreed to be paid; in other words, he should have proved up his case, as is usual in Courts before a jury in other monied demands. Neither the distress warrant itself, nor the affidavit of the party on which the warrant issued, being recognized by law as instruments of proof, but as forms or pleadings for.the assertion of claims, they should, when tendered as prima facie evidence, have been rejected. After issue made, the plaintiff not supporting his demand by such testimony as the law allows, the motion made by defendant — that judgment of non-suit be awarded — should have been granted.

In looking through the record, we perceive that the counter affidavit filed by Reid does not specially state the amount of plaintiff’s demand for rent which is denied to be due. No point was made in regard to this, and we therefore make no decision upon it; but with reference to future practice, we suggest that it may be made a question — whether a denial of plaintiff’s claim, in the mere words of the statute allowing counter affidavits, is a fair compliance with the spirit and intention of the act, which evidently meant that a direct and certain issue as to the amount due should be made.

Judgment reversed.