
    3891.
    Hutson v. Sutton.
    Decided April 2, 1912.
    Certiorari; from Berrien superior court — Judge Thomas.
    November 20, 1911.
    
      J. B. Murrow, J. J. Murray, for plaintiff.
    
      Hendricks & Christian, for defendant.
   Pottle, J.

1. This being an exception to a judgment refusing to sanction a petition for certiorari, complaining of a verdict in a justice’s court, adverse to the plaintiff in a lien foreclosure proceeding, and the case being argued in this court by both sides upon the theory that one of the contested issues was whether or not demand for payment was made before the institution of the proceeding, the case will be dealt with as though a counter-affidavit was duly filed, denying that such demand was made.

2. There being some evidence that demand for payment was not made on the defendant before the foreclosure proceeding was instituted, and the case not being one where failure to make demand is excused, the judgment refusing to sanction the petition for certiorari will not be " reversed, irrespective of other questions made in the record. Testimony by the defendant during the trial, that if demand had been made payment would have been refused, will not dispense with proof of demand. Civil Code (1910), § 3366; Shealey v. Livingston, 8 Ga. App. 642 (3), (70 S. E. 100). Judgment affirmed.  