1. The landlord may distrain for rent as soon as the same is due, or before due if the tenant is seeking to remove his goods from the premises. In this case the landlord does not make affidavit that the tenant is seeking to remove his goods, but simply swears that the rent is due. To this the counter-affidavit of defendaftt is in the words of the statute that the sum distrained for is not due, and defendant gave bond and security for the eventual condemnation money. Code, §4083. .
Therefore, it was error to dismiss the counter-affidavit.
2. After dismissing the counter-affidavit, the court gave judgment for the plaintiff against defendant and his surety on the bond. This was also error, because the entire cage was out of court when the counter-affidavit went out. 61 Ga., 199; 63 Ib., 519.
3. Besides, the record does not show that the case was founded on an unconditional contract in writing, and if not, the court should not have entered up the judgment without proof before a jury. Constitution, 1877; Sup. to Code, §624. 4
Judgment reversed.