
    Baker vs. Akerman, Executor.
    Illegality, from Bartow. Practice in Supreme Court. Damages. Principal and Surety. (Before Judge Pain.)
    J. A. Baker; for plaintiff in error.
    James B. Conyers, by J. H. Lumpkin, for defendant.
   Hall, J.

An affidavit of illegality was interposed to the levy of an execution which purported to be against two defendants as principals. The affiant alleged that he was the surety of his co-defendant, and this fact was known to the plaintiff in execution before the judgment on which the fi. fa. issued was rendered; that the plaintiff made a contract with the principal defendant "on or about the 1st of April, 1882, by which, for a valuable consideration, she agreed to indulge him on said fi.fa. and to extend the time for the payment of the same without affiant’s knowledge or consent, and by this contract and arrangement he was released from all liability on said fi. fa., as his risk as security was thereby increased.”

Held, that such affidavit was demurrable. It set out no fact on which issue could be taken or on which perjury could be assigned if it should appear to be false. The statements are merely conclusions, and neither the terms of the contract for indulgence nor the consideration therefor nor the time for which the collection of thefi. fa. was suspended are stated.

(a) The case is utterly without merit, and must have been brought to this court only for delay; and ten per cent damages are awarded against the plaintiff.

Judgment affirmed.  