
    Mitchell vs. Cooper.
    1. As a general rule, there is no necessity for a defendant in an execution, who claims to have paid or settled it, to resort to a court of equity to enjoin a levy made after such settlement or payment; but he may set up such defence by affidavit of illegality. Nor does ihe fact that the execution was in favor of a guardian for an insane person, and that the payment was made after a judgment was awarded, revoking the letters of guardianship and restoring the ward to his rights, make it necessary to go into equity. Code, §§3664., 3665, 1860.
    (a..) An affidavit of illegality lies to an execution issuing from a decree in chancery. Code, §4215.
    2. Where a defendant in execution filed an affidavit of illegality, but subsequently abandoned and voluntarily withdrew it, and an order was taken reciting that fact and ordering the execution to proceed, and no additional facts appear which would entitle the defendant to a second affidavit of illegality, a resort cannot be had to equity merely to avoid the legal requirements in this respect. Rule 31 (Code, p. 13-19) and citations.
    Judgment affirmed.
    December 21, 1884.
   Hall, Justice.

[Mitchell filed, his bill against Cooper, praying, among other things, that the collection of certain executions be enjoined. He alleged, in brief, as follows : Complainant was indebted to his brother, J. L. Mitchell, who, from excessive drinking, was adjudged incompetent to manage his property, and Cooper was appointed to be his guardian by the ordinary of Floyd county. The guardian sued complainant on his note, obtained a j ndgment, and execution was issued thereunder. Complainant made certain payments thereon. Subsequently his brother reformed, became capable of managing his business, and a petition to revoke the letters of guardianship was filed; and by consent, an order was passed that Cooper settle with his ward and turn over to him the property in hand, and that thereupon the letters of guardianship be revoked. Cooper turned over the property in hand to his ward, including the execution against complainant, and complainant settled in full with his brother. Afterwards his brother moved from the state, and Cooper, by some means unknown to complainant, got possession of the fi fa. and caused it to be levied on complainant’s property. ' Even if the legal title to the fi. fa. is in the trustee, the substantial equitable title is in the former ward.

Defendant demurred to the bill, and answered it, denying that he had ever settled with his ward or turned over the fi. fa. to him, and alleging that the ward was indebted to him for advances made, and-praying that he might control the fi. fa. to reimburse himself. He alleged also that the complainant had interposed an affidavit of illegality to thefi.fa., setting up substantially the same grounds as alleged in his bill; that he had voluntarily withdrawn this, and could not now set-up the same grounds by bill in equity.

On the hearing, the chancellor refused the injunction, and complainant excepted.]  