Drake v. Ludden & Bates Southern Music House

1. A defendant can not by affidavit of illegality go behind a judgment by setting up a defense of tender, where that issue was settled by verdict. His remedy would be a review of the ease by a motion for a new trial. The defendant here is attempting by affidavit of illegality to set up a defense that was his at the trial of the case in the lower court, and which defense was settled by verdict therein. It comes within the rule of law stated many times by our courts that “A defendant in execution can not, by affidavit of illegality, go behind the judgment upon which the execution is based,…