The opinion of the court was delivered by
Sergeant, J.This case does not seem to fall exactly within the class of cases, with which it has been compared, of a stay of *336proceedings on an execution. It is rather a case of express relinquishment of any further proceedings; a relinquishment and waiver of the right of the party under it. The plaintiff in the writ tells the sheriff, you need not do anything further—put no more costs upon it—I expect to get my money by a different method. After this the sheriff could not take a step; nor is it certain that he would ever have been called on to proceed to a sale. Why, then, should not another execution creditor proceed? It is alleged that this order was given under a mistake of the plaintiff, or rather ignorance that the warehouse was personal estate and not real. But that Avas a matter he undertook to knoAV, and was bound to know. No court of law or equity interferes to divest the legal right of one creditor because another has sustained a loss which is occasioned by his mistake or ignorance as to the proper mode of proceeding. Thus equity will not relieve against mispleading, or the inattention of parties in a court of law in neglecting a proper defence, or to move .for a new trial in proper, time, 1 Mad. Ch. 64; much less where .others have gained a legal priority. We think that Seibert lost his .right by his express renunciation and prohibition to the sheriff to proceed on the writ, and that the court below erred in awarding . him the money as against Kauffelt.
Decree reversed and the money in question decreed to KauffelCs judgment and execution.