Kellogg v. Brooks

45 Ga. 99

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

By any fair construction of the Act of October 17, 1870, it would seem that to make out a case of exception to the statute, it is not sufficient to allege the facts in the declaration, either at the commencement of the suit or by way of amendment. It would be easy, in this way, to evade altogether that section of the Act which requires the affidavit to be filed. It is a small matter to make a statement in a declaration ; and if this supersedes the necessity of the affidavit required, that section of the Act might as well not have been inserted. We have held, in several cases, that to excuse the filing of the affidavit, there must be either an affidavit of facts, making out the case of exception, or it must appear by the proof, or it must exist in the very nature of the cause of action.

Judgment affirmed.