A garnishee who had not answered could not hy affidavit of illegality arrest an execution and set aside a judgment, upon the ground that before its rendition against the garnishee as being in default, the defendant had paid to the attorney for the plaintiff in ft. fa. a part of the claim and had given him a check and' note to cover the balance. • Affidavit of illegality is not the proper remedy in such a ease. Tumlin v. O’Bryan, 68 Ga. 65; Lynch v. Gannon, 57 Ga. 608; Civil Code (1910), § 5311. The court did not err in sustaining the demurrer to the affidavit of illegality.

Judgment affirmed.