Hill v. DeLaunay

34 Ga. 427

Opinion

Lumpkin, O. J.

Ought the Court to have sustained the plaintiff’s motion on the ground that an affidavit of Illegality by the defendant was the only remedy ?

The proceeding by illegality, given by our statute, has been substituted for the writ of Audita Qu&rela in England. Formerly, that writ was resorted to to cox'rect all errors which are redressed here by illegality. The remedy by illegality is cumulative, not exclusive. In modern practice, the writ of Audita Querela has been superseded almost entirely by motion. Bomier’s Law Dictionary, p. 142, 2d clause, under the head' of Audita Querela: and the same x’elief is now afforded by motion which was formerly granted by said writ. Ibid, clause 5; 4 John. It&p. 191.

Much more, in this State, shoixld the proceeding by illegality be superseded by motion, which is more cheap, and expeditious, especially where the facts ’ are all before the Court and none of them disputed.

Let the judgment be reversed.