Tichenor v. Woodburn Sarven Wheel Co.

54 Miss. 589 | Miss. | 1877

Campbell, J.,

delivered the opinion of the court.

The act of March 6, 1875, amending § 782 of the Code, relates alone to a specification of the items of an account where the defendant desires to controvert its correctness in some particular items. In such case a wholesale denial is not sufficient. The affidavit must specify wherein the account is not correct. But, by virtue of § 782 of the Code, an affidavit by the defendant, “ that the account is not correct,” puts the plaintiff to the proof of its correctness, and the “ indebtedness of the defendant against whom the sum is charged.” If there is no specification of particular items of the account as incorrect, the defendant will not be permitted to controvert the particular items of the account, but only the fact that he is properly chargeable as a debtor on the account. The Code makes an account sworn to prima facie evidence of the correctness of the account and “ indebtedness of the defendant against whom the sum is charged.” An affidavit by‘the defendant, filed with his plea, “ that the account is not correct,” because of the amendment of 1875, does not put the plaintiff to the proof of the items of the account (the defendant must specify what items are not correct) ; but as that amendment does not relate to the other proposition of which the affidavit to the account is made prima facie evidence by § 782 of the Code, it remains true that such affidavit by the defendant renders it necessary for the plaintiff to prove the “ indebtedness of the defendant against whom the sum is charged.” In other words, the relation of the defendant as debtor on the account must be proved in such case ; but if he is shown to be debtor for any part of said account, he shall not be permitted under his general affidavit to question any of the items of the account.

Judgment reversed.