Swain v. Nasworthy

Powell, J. 1. Upon the trial of a case arising from the filing of a counter-affidavit and replevy bond to- the foreclosure of a distress warrant, the defendant can not properly move to dismiss the levy on the ground that it is excessive. 2. The effect of filing the counter-affidavit and bond is to render the process mesne; and the proceeding becomes a suit to recover rent, the distress warrant operating as a declaration and the counter-affidavit as a, plea. Chisholm v. Lewis, 66 Ga. 729; Elam v. Hamilton, 69 Ga. 736; Seifert v. Holt, 80 Ga. 757, 9 S. E. 843. 3. The tenant’s remedy against an excessive levy, if he has any remedy, is an action in damages for the abuse of the process. Sturgis v. Frost, 56 Ga. 189. Judgment affirmed.