[A fi.fa. in favor of Coleman & Newsom against Hamlin was levied on certain property, and the defendant im terposed an affidavit of illegality thereto, on the following, grounds:

(1.) Because he had moved for a new trial in the case in which the judgment from which ih.e fi. fa. issued was obtained, and the new trial had been granted, unless the" plaintiffs would do certain things, which they had not done.

(A) Because no writ of execution could issue upon the. judgment thus set aside.

-(3.) Because there was no .legal judgment upon which execution could issue.

The case was submitted to the presiding judge without a..jury. On deniurrer, he overruled and dismissed the affidavit of illegality, and’ the defendant excepted.] .