Humphreys v. Avery & Co.

Stephens, J. The giving of a forthcoming bond not being essential to the validity of an affidavit of illegality filed to a common-law execution, an affidavit of illegality to what appears to be such an execution, which sets up a legal defense against the proceeding of the levy, was improperly dismissed upon the ground that the forthcoming bond ■which was actually given to the sheriff, accompanying the affidavit ot illegality, did not contain a proper surety. See, in this connection, Civil Code (1910), §§ 5305, 6040; Crayton v. Fox, 100 Ga. 781 (28 S. E. 510). Judgment reversed. Jenkins, P. J., concurs.