A fi.fa. against Harrison, Lowe, Steele and Gress was levied on a city lot as the property of Gress, December 8, 1890. This levy was dismissed by plaintiff’s attorneys on February 2, 1891, and the execution was levied on three city lots as the property of Steele, who interposed an affidavit of illegality which, on demurrer, was dismissed, and he excepted.
The grounds of illegality insisted on were, in brief: (1) The j udgment from which the fi. fa. issued was illegal in that it was rendered upon a suit founded on a written contract set forth in the declaration, which contract upon its face shows that deponent was only a surety; and in said suit process was not sued out against deponent as surety, nor was the judgment rendered against deponent as surety. (2) The fi. fa. had been levied on *65property as the property of dress, who had interposed an affidavit of illegality which had been returned to the March term, 1891, of the superior court, and the fi. fa. was afterwards, in vacation, without any order of court or of the judge, withdrawn from said court and levied as aforesaid, contrary to law and the rule of court. (8) Deponent was a mere surety for dress on the contract sued on and upon which the judgment was rendered, and the dismissal of the levy on the property of dress, as just stated, has injured and discharged deponent and avoids theft. fa. as to him.
Candler & Thomson, for plaintiff in error. Calhoun, King & Spalding, contra.