delivered the opinion of the court.
In this case, the plaintiff having obtained a judgment by default against the defendant for the sum of four hundred and ninety-six dollars, issued his execution thereon. The sheriff returned that Gurney had deposited in his hands the amount of the judgment and costs, but on the condition that it should remain and await the decision of an attachment • . . , , . case which, he had against Richardson.
On this return being made, Gurney obtained a rule on Richardson, to show cause why the execution should not be ’ . J quashed and set aside. The rale was afterwards made absolute, and the execution quashed accordingly. RichardSOll appealed.
^ aPPears to this court that the execution ought not to have been quashed. It had been regularly issued. The . , l . . . contest between the same parties, but reversing their order, related to the regularity of the attachment. The question might have been settled by Gurney calling on the sheriff to return the attachment as duly executed; or by Richardson *257ing of that officer to pay him the money received on the execution. This would have brought the matter on which parties were at issue, fairly before the court. In this case, we think the appellee overlooked his remedy, and the court erred in quashing the execution.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the rule be discharged, with costs in both courts.