Page:Federal Reporter, 1st Series, Volume 4.djvu/604

 590 FBDKRAIi BEPOBTEB. �\ratchman was placed in charge solely for thîs purpose, and not for any purpose of taking possession or strengthening the levy. Matters remaiped in this condition until, sometime prior to August 6, 1878, Daniel's attorney addressed a let- ter to the circuit judge of this court, at Knoxville, enclosing certiaed copies of the record in the case of Dawson v. Daniel, and making some application for relief against the action of the plaintiff in suing out the execution, the character of which does not clearly appear, except that in his reply to the attor- ney, which is in evidence in this case, the circuit judge saya it is of questionable shape, being neither a bill in chancery nor an application for specifie relief. He, however, encloses them a letter to the clerk of the court, and tells them if it cannot be made available they must proceed by a bill of injunc- tion, To explain the bearing of these letters upon the ques- tions arising in this case, it is neoessary to state that the judgments against Daniel were rendered at the May term, 1878, by default, and he entered a motion to set aside the default, and for a new trial. �This motion was continued "without prejudice to the plain- tiff," until the next term, and the court adjourned. Not- withstanding the pendency of this motion for a new trial, executions were issued and levied as before stated, and the complaint was made to the circuit judge that the clerk had improperly issued them prematurely. The circuit judge, in his letters, expresses the belief that they were prematurely issued, and ought to be'recalled, "if that idea be correct, until the merits of the case can be inquired into and adjudi- cated." In his letter to the clerk he says that the executions ought to be called in as improvidently issued. The clerk treated this as an order, and, under the seal of the court, on the seventh of August, 1878, addressed "an order" to the marshal, accompanied with a eopy of fhe letter of the judge, "notifying" him that the executions were issued without authority, and "requesting him to return the same unexe- cuted." Upon the receipt of this "order" the marshal re- turned his writs on the seventh of August, with this indorse- ment added to that of his levy: "In obedience to §in order ����