This case came before the court below on a certiorari from a justice’s court. On the hearing of the certiorari the court dismissed it on the ground that the amount in controversy was more than $50 00, and that questions of fact were involved in the judgment of the justice’s court. Whereupon the plaintiff in certiorari excepted.
1. One of the errors complained of in the certiorari is, that the justice’s court dismissed the affidavit of illegality because there was no forthcoming bond given by the defendant. In Herring vs. Saulsbury, Respess & Company, 52 Georgia, 396, we held that a defendant, when he made an affidavit of illegality to an execution which had been levied on his property, might replevy it by giving bond and security for its forthcoming, but was not bound to do so, and that the failure to give, such bond was not a good legal ground to dismiss the affidavit of illegality. This was the error of law complained of, and we think it was an error of law for the justice to have dismissed the defendant’s affidavit of illegality because there was no forthcoming bond given.
2. But there were questions of fact involved in the judgment of the justice, as well as the question of law complained of, and when that is the ease, and the amount involved is more than $50 00, the remedy is by an appeal to the supreme *570court, and not by certiorari. If the only question involved is a question of law which must necessariljr control the case, then a proper remedy is by certiorari. We find no error in the judgment of the court in dismissing the certiorari for the reason given, or as to the merits of the case upon the facts as disclosed by the return of the justice. In any view of the case, notwithstanding the justices erred in dismissing the defendant’s affidavit of illegality for the reason given,-their judgment was right upon the facts before them, and the certiorari was properly dismissed.
Let the judgment of the court below be affirmed.