delivered the opinion of the Court:
Dazey recovered a judgment at the Spring term, 1837, of the Adams Circuit Court, against Orr and Forbush, upon which a fieri facias issued and was placed in the hands of Earl Pierce, then sheriff of said county, for collection. Orr and Forbush paid Pierce, the sheriff, $30 on said execution, which he endorsed upon the back thereof, without returning the execution to the clerk’s office whence it had issued. Robert R. Williams, Esq., attorney for Dazey, got possession of the execution with the credit of $30 endorsed on the back thereof, and returned it to the clerk’s office, and caused the alias fieri facias in the bill of exceptions mentioned, to be issued.
At the July term, 1838, of the Adams Circuit Court, Orr and Forbush, by their attorney, produced said alias fieri facias in Court, and without having given notice to Dazey of their intention to make such motion, moved the Court to quash and set aside the same.
This motion the Court sustained, and rendered judgment for costs against Dazey; to reverse which, this appeal is brought. It *536does seem to us, that in this case it was necessary for the party to have given notice of his intention to quash the execution, previous to the making of the motion.
The judgment of the Circuit Court is therefore reversed with costs, and the cause remanded.
Judgment reversed.