
    Armstrong v. Heath.
    Submitted March 1,
    Decided April 30, 1902.
   Little, J.

1. When a distress warrant in favor of F. F. H. is met by a proper counter-affidavit of the defendant therein, the plaintiff can not, for the purpose of proving the rent alleged to be due, introduce a promissory note payable to the order of W. W. H., given for the rent of the premises in question, which note, together with the lien for rent, had, as appeared upon the note itself, been previously transferred to F. S. H. & Co., there being nothing on the paper to show that the latter did not still have the legal title to the note and the rent lien.

2. Even with such a note in evidence, and supplemented by proof sufficient to show that W. W. H., in taking the rent note payable to his order, was acting as agent for F. F. H., the real landlord, and that at the time the latter sued out the distress warrant “ the said rent note was in his, plaintiff’s, hands,” a nonsuit should have been granted, the evidence also showing not only that the note and rent lien were transferred to F. S. H. & Co., but that the note was actually delivered to them, and there being no evidence to show that they had ever transferred the legal title to either the note or lien back either to W. W. H. or F. F. H.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.

Distress warrant. Before Judge Felton. Bibb superior court. June 20, 1901.

Moore & Daly, for plaintiff in error. Estes & Jones, contra.  