Where the defendant, in his affidavit of illegality to the foreclosure of a mortgage by the mortgagee on personalty, admits the execution of the note and mortgage, and sets up a partial failure of consideration as his only defense to such foreclosure, the burden of proof is cast upon him; and, upon his claiming the right to open and conclude before the introduction of any testimony, it was error in the court to deny him this privilege. Montgomery v. Hunt, 93 Ga. *472438. It was, therefore, error for the judge of the superior court to overrule the certiorari complaining of such ruling by the justice of the peace.
Argued February 15, Decided March 25, 1898. Certiorari. Before Judge Fite. Catoosa superior court.. February term, 1897. W. E. Mann, for plaintiff in error. J. II. Anderson, contra.Judgment reversed.
All the Justices concurring.