Opinion of the Court

of that firm. It was substantially the only resource in his hands in December, 1859, to repay him his advances. If the two letters then in the possession of Sanford's executors really showed such an agreement as they now claim, it is incredible that they would have accepted the release from Chouteau, with its comprehensive reservation of assets to Chouteau, and not have insisted on excepting from the assets the Minnesota real estate, which at that time was clearly assets of the firm. The entries in the books kept at St. Louis confirm the foregoing view.

On the whole case, we are of opinion, that, after the dissolution of the St. Louis firm, the members other than Sanford were entitled to collect and dispose of all its assets, including the Minnesota "outfit" and the Minnesota lands, to liquidate its affairs, without the interference of Sanford; that all claim on their part against Sanford individually was relinquished, leaving recourse only to those assets; and that, if there should be any surplus of those assets, after paying the debts of the firm and the advances of any of the other partners therefor, Sanford's executors would be entitled to his proper proportion of such surplus.

No judicial accounting has been had on the basis of the rights of the parties as we have defined them. The bill prays that the defendants may account touching the affairs and property of the copartnership and touching the proceeds of any such property. We think the plaintiffs are entitled to such an accounting, and are not barred from it by laches or by the operation of any statute of limitations. If necessary, the Circuit Court can, in its discretion, allow the pleadings to be amended, with a view to the attainment of justice, on the principles we have laid down. We do not deem it proper now to indicate any rule of accounting in respect to the lands which were not sold and conveyed by Charles P. Chouteau and Julia Maffitt to parties other than the representatives of Pierre Chouteau, Jr., Sarpy and Sire, but leave that question to be determined by the Circuit Court, on full consideration. the lands which were sold and conveyed to parties other than such representatives, the liability should be only for the sums

Opinion of the Court.

actually realized in good faith from the sales. The accounting may include the other remaining assets of the firm, if any. The decree of the Circuit Court is reversed, and the case is remanded to that court, with direction to enter a decree in accordance with this opinion, and to take such further proceedings as may be in conformity therewith.

FREEMAN, Trustee, v. DAWSON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.

Argued January 16th, 1884.-Decided January 28th, 1884.

Execution-Judgment-Jurisdiction.

From a decree of the Circuit Court, awarding a fund of $6,000 to one claiming under a distinct title, the grantee in a deed of trust to secure debts to various other persons, exceeding that amount in all, but of less than $5,000 each, may appeal to this court.

A judgment duly recovered is not affected, nor the right to take out execution upon it impaired, by an application made to the court to set it aside, and "continued until the next term, without prejudice to either party."

All the proceedings under a levy of execution have relation back to the time of the seizure of the property.

A levy of execution, for a debt of the lessee, upon the leasehold estate, and upon a cotton press, with its engine, boilers and machinery, erected by him, under which the officer has seized the property, and given due notice of a sale thereof, is not defeated by an order from the clerk, under seal of the court, pursuant to a direction of the judge in vacation, without notice to the judgment creditor, requesting the officer to return the execution unexecuted; nor by the officer's, upon receiving such order, ceasing to keep actual possession of the property, and returning the execution, with his doings indorsed thereon, to the court, for further directions.

Mr. C. W. Metcalf for appellant.

Mr. W. K. Poston for appellee.

MR. JUSTICE GRAY delivered the opinion of the court. This is an appeal by the grantee in a deed of trust, from a decree of the Circuit Court of the United States for the West

Opinion of the Court.

ern District of Tennessee, in favor of a judgment creditor of the grantor.

The undisputed facts of the case, as shown by the pleadings and the documentary evidence, are as follows:

In January, 1878, the owners of two lots of land in the city of Memphis, county of Shelby and State of Tennessee, executed to R. C. Daniel a lease thereof for the term of six years, at a certain rent, and with a provision that any improvements or machinery made or erected by the lessee might be removed by him at the end of the lease. Steers and Morse, under a contract with Daniel, erected upon the land a cotton press, engine, boilers, and machinery; and on August 8th, 1878, filed the original bill in this case against him, in the Chancery Court of Shelby County, to enforce a mechanic's lien, under the statutes of Tennessee, upon his leasehold interest in the land, and upon his interest in the press and machinery, and obtained a writ of attachment against the same.

On June 6th, 1878, A. H. H. Dawson duly recovered against Daniel two judgments at law, upon default, in the Circuit Court of the United States, amounting together to the sum of $5,629.91. At the same term, on June 13th, an application was made by Daniel to vacate each of those judgments, and was "continued until the next term of the court, without prejudice to either party." On July 5th writs of fieri facias upon both the judgments were issued by the clerk and delivered to the marshal. On July 9th the marshal, as appears by his indorsement thereon, levied each of these executions upon Daniel's interest in the land (particularly described) and upon all his interest" in and to the chattel property in, about and upon the foregoing described lots and parcels of land, consisting of a Morse improved Tyler cotton compress, with engines, boilers, machinery, &c., with all appurtenances thereto belonging;" and afterwards published and posted, and served upon Daniel, as required by law, notices of a sale to be made on August 8th in pursuance of the levy.

On August 5th the Circuit Judge sent to the clerk the fol lowing letter:

Opinion of the Court.

"Knoxville, Tennessee, August 5th, 1878. "My Dear Sir: I have been furnished by Messrs. Gantt & Patterson, attorneys for Mr. R. C. Daniel, with certified copies of the record in the suits of A. H. H. Dawson v. Daniel, pending in your court. From this, as I construe it, judgments by default were rendered at the last term, and then an application made to set aside said judgments and permit defendant to plead, which application was continued to next term of the court. This leaves these cases pending undetermined. Yet Messrs. Gantt & Patterson, for their client, represent that executions have been issued and levied on Daniel's property. If this is so, the executions are without authority, and ought to be called in as improvidently issued. There is no final judgment on which they can rest. My suggestion is that you issue a paper to the marshal reciting the fact that executions were issued without authority, and request him to return the same unexecuted.

"I am, very truly, &c.

"Bell W. Etheridge, Esq.,

JNO. BAXTER

"U. S. Circuit Court, Memphis, Tenn."

On August 7th the clerk delivered to the marshal a paper headed "Circuit Court of the United States for the Western District of Tennessee," with the names of the cases and their numbers on the docket, and the rest of which was as follows: "To the United States Marshal, Western District of Tennessee: "In accordance with the instructions of Judge Baxter, communicated by letter, a copy of which is hereto attached, I notify you that the executions in the two above named cases were issued without authority, and request you to return the same unexecuted. You will therefore act accordingly.

"Witness my signature and the seal of said court, this the seventh day of August, 1878. [SEAL.]

"BELL W. ETHERIDGE, Clerk."

The marshal's return upon each execution, after stating the levy and notice, concluded as follows:

"And on 17th August, 1878, in obedience to an order of court issued by Hon. John Baxter, I return this writ without further proceedings."

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The coroner of Shelby County thereupon, on the same day, took possession of the property under the writ of attachment issued upon the bill in equity of Steers and Morse.

On November 22d, Daniel executed a deed, which was recorded on the next day, of his interest in the leasehold, and in the cotton press with its engine, boiler, machinery and appurtenances, to John J. Freeman, in trust to secure, and to sell for the payment of, debts due from Daniel to various persons, in sums of $6,000, or less, and amounting in all to the sum of $18,370, for moneys borrowed by Daniel to pay for the leasehold and fixtures.

The Circuit Court, at a regular term, on January 6th, 1879, denied the applications of Daniel to vacate the judgments at law, and on February 8th granted motions of Dawson for writs of venditioni exponas. On February 10th such writs were issued accordingly, which recited that "said writs. of fieri facias have been returned without any sale of the property levied on as aforesaid, which levies this court now adjudges as still in full force, and unabandoned by the marshal, and the property so levied on is still in his possession by virtue of said levies." The opinions delivered on the applications and motions are reported in Dawson v. Daniel, 2 Flippin, 301, 305.

The returns subsequently made by the marshal upon the writs of venditioni exponas show that, upon receiving them, he went upon the land, and found the cotton press being operated by, and under the control of, Charles Yerger, who claimed to be in possession, in behalf of the sheriff and coroner, under an order of the Chancery Court of Shelby County; that he exhibited his writs of venditioni exponas, and demanded of Yerger possession of the property, which was refused; that he was thereupon directed by the attorneys for Dawson to proceed under those writs to a sale of the property, and gave notice to Daniel of such a sale to take place on March 11th; and that on February 12th those attorneys "directed that all proceedings hereunder be suspended until further orders in the premises."

On February 13th Steers and Morse filed in the suit in equity an amended and supplemental bill against Dawson, Freeman,