dissenting. We can not agree to the opinion of the majority of the court in this case. The Civil *766Code, § 3300, provides, “When an execution shall issue upon the foreclosure of a mortgage on personal property, as hereinbefore directed, the mortgagor, or his special agent, may file his affidavit of illegality to such execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due.” Section 3289 is to the same effect. Under § 3286 the mortgagee or his agent or attorney at law, in order to foreclose a chattel mortgage, must “make affidavit to the amount of principal and interest due on such mortgage, which affidavit shall be annexed to such mortgage, or a copy thereof verified as correct by the affidavit thereon of the owner or his agent or attorney.” And upon the filing of such affidavit the proper officer issues the mortgage execution. The mortgagor, as provided in § 3300, may arrest the progress of such execution by making a counter-affidavit setting up “any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes tb show that the amount claimed is not due.” In this way the mortgage execution, which, in the absence of a counter-affidavit provided by statute, is final process, is converted into mesne process, and the affidavit of foreclosure, the mortgage execution issued thereon, and the affidavit of illegality are returned to the proper court, and the issues presented by the affidavit of foreclosure and the illegality are to be there tried “ as other cases of illegality.” “If the mortgagor fails to set up and sustain the defense' as thereinbefore authorized, the mortgaged property shall be sold,” etc. Civil Code, § 3302. The method for raising such issues is provided by statute, and it should be strictly adhered to. The mere fact that such a statutory proceeding is in lieu of a former equitable proceeding is no reason why the statutory proceeding should not be strictly construed; for, perhaps, every statutory proceeding is a substitute for some form of legal or equitable proceeding. But this is not a sound reason for giving the statutory proceeding the same broad and liberal construction which was applicable to the former legal or equitable proceeding for which the statutory proceeding is a substitute. Of course we do not mean to say that after the mortgage execution is arrested in the manner pointed out by the statute, the mortgagor, after the matter hsis been properly taken to the court, can *767not then have the foreclosure proceedings, or the levy under the execution, dismissed for any valid reason. A landlord in order to distrain for rent must, under the statute, make an affidavit of the amount of rent due; and this court has decided in numerous cases that the only way the tenant can stop the progress of the distress warrant is by making an affidavit that the rent or some part thereof distrained for is not due. The reason for so holding has always been stated to be that such defense is the only one given to the tenant by the statute. We are unable to see why a tenant should be limited to the only defense provided by statute, and the mortgagor should not be also so restricted to the defense the statute specifically provides he may set up. The position we take is supported in Guerard & Polhill v. Polhill, R. M. Charlton, 237. And while the ruling there made is not authoritative, because made by a trial judge, the reasons for the holding are most cogently stated by Judge Charlton, and to our minds are conclusive. The principle which we maintain is decided in Arnold v. Carter, 125 Ga. 319 (54 S. E. 177), which case was concurred in by a full bench. See also Weaver v. Roberson, 134 Ga. 149, 158 (67 S. E. 662). No ruling made in any of the cases cited in the majority opinion, in our judgment, is in conflict with the position we take in this case. While in some of such cases broad language is used, whatever was said should be taken in connection with the actual decision made. In every one of such cases the defense which the court held could be set up by the mortgagor was one which he might have set up in an ordinary suit upon the demand secured by the mortgage, and which went to show that the amount claimed was not due. In Bailey v. Lumpkin, 1 Ga. 392, it was held: “Upon a rule to foreclose a mortgage, under the statute in Georgia, the mortgagor may show, by way of defense, that the contract upon which it was given was usurious.” In Dixon v. Cuyler, 27 Ga. 248, in a proceeding to foreclose a mortgage on realty, it was held, in effect, that recoupment could be set up as a defense. In Mell v. Moony, 30 Ga. 413, it was held, in effect, that recoupment could be set up by way of affidavit of illegality to the foreclosure of a chattel mortgage. To the same effect was the ruling in Mordecai v. Stewart, 37 Ga. 364, as to the foreclosure of a mortgage on realty. In Alston v. Wheatley, 47 Ga. 646, it was held that usury and recoupment could be set up by way of an affidavit of illegality to the foreclosure of a chattel mortgage. And in *768Finney v. Cadwallader, 55 Ga. 75, a defense of recoupment was held to be good to the foreclosure of a mortgage on realty.
In order for the mortgagor, upon the foreclosure of a chattel mortgage, to avail himself of the point that the property levied on is not covered by the mortgage, he must, in our opinion, go into a court of equity; as no such defense is provided by the Civil Code, § 3300.