This was a demurrer to an affidavit of illegality, which was sustained by the court, and the affidavit dismissed. The error assigned is the judgment dismissing this affidavit.
The affidavit made the point that the judgment on which the fi. fa. was issued was illegal, because the court had entered it up without the verdict of the jury — there being no issuable defense filed on oath- — -and that the suit being upon a sheriffs bond, the damages must be assessed by a pry-
This case is covered by the Piedmont and Arlington Life Ins. Co. vs. Lester, 55 Ga., 475. The sheriff’s bond was a contract, there was no defense on oath, the presumption is that the judge heard testimony as to the amount of damage, and awarded the right sum.
Judgment affirmed.