This was an effort made by one of the defendants, (the principal in the debt sued.on,) to avail himself of the provisions of the third section of the Relief Act of 1868. That section does not vary essentially, so far as defendant in this case attempts to avail himself of it, from the proviso to the fifteenth section to the Relief Act of 1870. That has been declared by this Court to be unconstitutional, in Abercrombie vs. Baxter, decided October 17th, 1871. The third section of the Relief Act of 1868, so far as applicable to cases like the present, must share the same fate. See, also, 42 Georgia, 61.
*514Our judgment, therefore, is that an affidavit to open a judgment upon the sole ground that the defendant is willing to return to the plaintiff in fi. fa. the property, the purchase of which created the debt on which the judgment is founded, should have been dismissed and the sheriff ordered to proceed with the sale.
Judgment reversed.