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Story et al. vs. Flournoy, McGehee & Company. only, and not the law, is disputed :" 3d Blackstone, (top page,) 250, 251. The exitus or end of these affidavits was the issue being tried before the superior court of the county of Marion, and these altercations, which brought the parties to this issue, were the pleadings. Hence the Code, cited above, sub-section 4 of section 1991, declares "which affidavit shall form an issue to be returned to the court and tried as other causes ;" as much as to say, construing language in its legal sense, which altercations or pleudings shall form an issue, to be tried as other cases. It is impossible that an issue can be formed by one original affidavit. It takes altercations to form an issue. There must be an affirmation and a denial. Hence, the sub-section means that this counter-affidavit, which denies the fact set up in plaintiffs' affidavit of foreclosure, shall form the issue with that.

If, then, these are the pleadings, the question is, can these plearlings be amended, and was the motion to amend in time? Both the Code and the decisions of this court settle that question beyond controversy. The Code declares that all parties, whether at law or in equity, may, at any stage of the cause, as matter of right, amend their pleadings in all respects, with the single proviso that there is enough to amend by : Code, section 3479.

It cannot be disputed that there are parties; that they are at law; that at a certain stage of the cause they moved to amend, and that the amendment was in a vital respect, and there was enough to amend by; who shall prohibit them, then, from amending? It is a matter of right conferred upon them by law. Every judgment of a court, to be legal and binding, is a sentence or judgment of the law; and if there be no law for it, it should certainly be reversed : 3d Blackstone, (top page,) 305.

Where is the law that authorized the court below to deny this matter of right to these defendants ? What right had he to demand of them, before trial, are your pleadings all ready, and because, afterwards, the defendants ascertained that theirs were not all in, and moved to put them in at a stage of the cause, to deny them a right which the law

Story et al. vs. Flournoy, McGehee & Company.


gave to them ?

I think he erred, and thinking so, I am sworn to do what I can to correct that error.

But it may be said that this was an affidavit, and therefore it could not be amended. The court below put it upon no such ground, but upon the ground that he had asked them at the beginning of the trial if their pleadings were all in. But if it had been put upon this ground it could not avail. The Code declares that an affidavit of illegality is not amendable except the party shall swear that the fact came to his knowledge after his first affidavit was taken: Code, 3501. But this is no affidavit of illegality. The difference between them seems to me as wide as the poles. This is a summary mode of bringing a case into court on the part of the plaintiff before the defen/lant has ever been heard about it at all; and his only way to get his first day in court is by this counteraffidavit. The defendant, in an affidavit of illegality, has been heard on the original debt; these defendants never have been heard at all on the debt against them. A final judgment, after notice and service, has been rendered against the former; the latter, without notice or service or hearing at all, have their property seized by an ex parte summary proceeding. This law providing for this defense was passed after the act limiting the amendments to affidavits of illegality, and had it been the purpose of the legislature to have limited the right to amend this plea, by which the defendants are heard for the first time in court, they could and would, in my judgment, have said so. This proceeding was authorized by the act of 1873, long after the limitation to the right to amend affidavits of illegality had been enacted. But to set the case, it seems to me, beyond all doubt, the Code declares that “an affidavit which is the foundation of a legal proceeding cannot be amended except expressly provided for by law:" Code, section 3504. What is the foundation of this legal proceeding? Unquestionably, the affidavit which foreclosed the lien and seized the property of defendants. If it had been proposed to amend that it could not have been done unless positive law had provided for it; but here the motion

Story et al. vs. Flournoy, McGehee & Company. was to amend the defense, the resistance to this foundation for this legal proceeding; and by the strongest possible negative pregnant the Code affirms that any affidavit other than that which is the foundation of a legal proceeding may be amended without an express provision of law, that is, under the general law of amendments of pleading. It cannot be that the affidavit of defendants is the foundation of this legal proceeding. It does not begin it, but ends it; because issue is the end of pleading, and it takes two sides to make an issue, just as it does two to make a bargain, and this forms the issue with what? There is nothing with which it can form it but the affidavit of plaintiff to foreclose. Therefore the affidavit of foreclosure is the foundation. Besides, the policy of the law is with the construction I put upon it. That policy is to construe narrowly all summary remedies. Such is the universal rule of construction, because the remedy is against common right and is a harsh process. The plaintiff must, therefore, comply with the letter of the law, because by an ex parte proceeding he is about to seize the goods and chattels of defendants before they have ever been heard. But I have yet to learn that the defendant's right to resist this harsh process against him is also to be measured with the same rigid strictness. It would be strange, indeed, if he could amend ad libitum in an ordinary suit, when he is regularly served and there is no seizure of his goods, and 110 harshness of proceeding in derogation of common right; but when the suit is commenced against him in an extraordinary way, and the first notice he has of it is the mortification of himself and his household by the seizure of his property, he should be allowed no amendment at all, but be forced to try his whole case on his first hurried affidavit, made when few men would possess great composure of mind. Besides, the sub-section 4, in section 1991 of our Code, declares that the issue “shall be tried as other causes." In other causes pleadings may be amended in form or substance at any stage of the trial; why not here, in this case, in the absence of all law to the contrary? I confess my utter inability to discover any

Story et al. vs. Flournoy, McGehee & Company. law or reason why it cannot be done. The reason cannot be because it is an affidavit. All pleas presenting issuable facts must be sworn to, otherwise the party cannot be heard. If they may amend such plea sworn to, why not this ? The sole response my mind gives me is the echo, why not this? But it may be suggested that this ameniled plea is not good in law, and if allowed would have done defendants no good. On the contrary, it struck at the vitals of the case. If true, it killed plaintiff's case. He was seeking to foreclose a lien. That lien and the foreclosure could only operate for supplies or money to be expended on the farm for the year 1874. This plea asserted that the money was to go, and did go, to the payment of a note due in 1873 to a man named Taliaferro, which note plaintiffs had taken up. If this were true, the lien was void, and the suit, as brought, perished with it. The plea would have killed both, but the court, in disregard of the law, as it looks to me, warded off the blow, and saved the illegal life of this lien and of the process to enforce it. But it may be said that the defendants could not, by parol evidence, vary or contradict the written lien; and as the lien asserted that the money was necessary to enable the principal defendant to make the crop of 1874, he could not, by parol, alter these words. To this I reply, first, that one exception to the rule is that you may go into the consideration of a paper by parol, and as the writing sought to be contradicted purported to be the consideration of the lien, it could be attacked by parol; secondly, that the words in the writing are not that the money was to go, and did

go, into the crop of 1874, or was to be used, and was used, for that purpose, but that it was necessary to enable him to make the crop, evidently evasive; thirdly, that the evidence was already in and not objected to. The court had permitted the defendants to introduce it under the first affidavit, that it was for money and not supplies. It was sworn to without objection by both defenants. Besides, if the parol evidence had been objected to the defendants might have introduced written proof. They certainly had, or could have got, or failing to

Story et al. vs. Flournoy, McGehee & Company.

get it, could have gone into the contents of the Taliaferro note, which was part of the real consideration. The rule, I believe, is that a demurrer to a plea admits that the facts set out therein can be legally proven, unless the contrary appears on the face of it: 16 Georgia, 154, 162; 13 Ibid., 75. The truth of the case made in the record seems to be that the defendants discovered, during the argument, that their proof would not avail them under the pleas which alleged that the consideration was money, but did not allege that it was money not to be applied to the crop of 1874; and therefore they wished to amend, and the court, in refusing the amendment, ruined their defense.

Again, as to the surety. There is a judgment on a crop lien against him. The law contemplates nothing of the sort. It is positively proven, and there is no evidence to the contrary, that he was merely surety, had no interest in the crop, and never handled a dime of the money. It is true that he did not make an affidavit himself by way of plea, but the fact was shown that he was security, and an illegal judgment was rendered against him. A court sits to administer justice and to see the law executed, and I do not think it should shut its eyes to the patent fact that an illegal thing is about to be done, because pleas are not precisely formal—when the plea is sworn to by one of the defendants, and the surety is there by counsel also resisting the judgment. For these reasons I think the whole proceeding in the court below illegal, and the verdict and judgnient contrary to law and evidence, and on that ground, in the motion for a new trial, that they should both have been set aside, and the new trial granted.

P.S. Since delivering the above opinion, a friend has called my attention to Heard vs. Sibley, in 52 Georgia, 310, where this court unanimously take the view I have here taken of the right to amend. It had escaped my attention and that of my associates, I presume.

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