It is true that the Act of October 13th, 1870, only provides for an affidavit, in case the plaintiff makes one. In such case, by the fifth section, the defendant may deny the truth of the plaintiff’s affidavit. But the spirit of the pro*614vision applies as well to the case of the plaintiff undertaking to go on without the affidavit.
But, independently of this, it is clear that section fifth of the Act makes it illegal for the plaintiff to proceed without the affidavit. Why should not an affidavit of illegality apply as well to this illegal proceeding as to any other proceeding illegally ?
We see no reason why it should not. Section 3614 of the Code authorizes the defendant to stop the plaintiff by affidavit, etc., whenever the execution is proceeding illegally. Under that section, if not under the fifth section of the Act of October 13th, 1870, this proceeding is authorized.
Judgment reversed.