The judgment here excepted to being a judgment sustaining a certiorari to the judgment of a justice of the peace against the defendant, on the issue formed by an affidavit of illegality interposed by him to the levy of an execution upon a judgment of the justice in a suit against him upon a promissory note, the affidavit of illegality being based upon the ground that he had never been served ■with a summons and had never had his day in court, and this defense being supported by the evidence for the defendant, adduced upon the trial of the issue made by the affidavit of illegality, and it therefore appearing that the judgment of the magistrate thereon was not demanded as a matter of law, the judgment of the superior court, sustaining the certiorari and granting a new trial, will be affirmed.

Judgment affirmed.