1. R. E. Smith sued out a distress warrant and foreclosed a landlord’s lien for supplies against his tenant. These fi. fas. were levied upon three bales of cotton in possession of one J. E. Smith, who filed a claim asserting that the cotton was his, and not the property of the tenant. On the trial of the ease R. E. Smith was allowed to amend his affidavit upon which the distress warrant had been issued. This was objected to by the claimant and the objection was overruled by the court. Section 5122 of the. Civil Code now allows affidavits of this kind to be amended, and the court did not err in so ruling.
2. It appeared in the evidence that one of the executions above mentioned had been levied upon certain. personal property, and that the property had been sold thereunder. There was no credit upon the execution and no explanation given as to a portion of the funds raised by the sale, except that the plaintiff says in his testimony that he applied a portion of the proceeds of the sale to unsecured debts which the defendant owed him. This was not a sufficient explanation of the application of the proceeds of the sale. The officer making the sale under *722this fi. fa. should have credited the proceeds upon it, and'the plaintiff had no right to take a portion of the proceeds and apply them to an unsecured debt. It is inferable from the evidence that the proceeds of the sale were at least sufficient to pay off oné of the fi. fas., if not both of them. It was incumbent upon the plaintiff to affirmatively show that the proceeds of the sale, were legally applied to these executions, or to one of older date against the defendant.
3. Two of the three bales of cotton levied upon were seized in the warehouse of a stranger to this litigation. The record shows that both the plaintiff and the defendant utterly failed in their evidence to identify these two bales as the property of the defendant in execution. Indeed both testified that they could not so identify them. The evidence of the claimant was silent upon the subject. It was incumbent upon the plaintiff to show that these two bales belonged to the defendant or were grown on the farm rented by him from the plaintiff. The plaintiff having failed to carry this burden of proof, a verdict finding these two bales and the other all subject to the executions was contrary to law and evidence. The judge therefore erred in refusing to grant a new trial.
Judgment reversed.
'All the Justices concurring, except Lumpkin, P. J., absent.