68 Ga. 178 | Ga. | 1881
A distress warrant was issued in favor of defendant in error against plaintiff in error for four bales of low middling cotton, alleged to be worth one hundred and eighty dollars. To this warrant plaintiff in error filed a counter-affidavit. On the trial, defendant in error demurred to the counter-affidavit, which demurrer the court sustained, and dismissed the affidavit.
The Code, §4083, declares: “ The party distrained may in all cases replevy the property so distrained, by making oath that the sum, or some part thereof, distrained for is not due,” and give security for the actual condemnation money, etc.
Under this section, the defendant may arrest the warrant, either by swearing that the sum distrained for is not due, or that some part thereof is not due; and, in examiningthe record, we are of opinion that the counter-affidavit was in full, if not in literal, compliance with the statute. He swore “the sum distrained for was not due ;” and that is what the statute required him to do. We are of opinion the court erred in sustaining the demurrer and dismissing the affidavit.
Let the judgment of the court below be reversed on both of the grounds taken in the assignments of error.
Judgment reversed.