¶1OPINION OE THE 0OURT BY
¶2Appellant having recovered a judgment against Josephine Frederick and others for $75 and having had one execution *370issued thereon and returned no property found by the proper officer, filed her petition in.equity to attach the amount of her debt in the hands of W. H. Kirtly and appellee Berthurem alleging that they were indebted to Josephine Frederick alleging in a larger sum than she owed them. In September, 1859, Kirtly and Berthurem answered her petition, in which they admit an indebtedness and a judgment against them in favor of the said Josephine in a sum sufficient to pay the debt, and say “they care not ivho gets it."
¶3Judgment was on the 9th of March, 1861, rendered in said suit in favor of appellant against Kirtly and Berthurem for her debt and costs. In June, 1866,- an execution issued on said judgment against the estate of Bethurem (Kirtly having died) ; and was returned, the individual to whom it was delivered doubting-whether he was in fact sheriff of the county, and his authority to act in that capacity.
¶4On the 17th of April, 1867, another jifa issued on said judgment and was levied on the property of appellee; before the sale he enjoined the collection of the' debt, alleging that Josephine Frederick had recovered judgment against Kirtly and himself,, he being the surety of Kirtly; that an execution issued thereon;, that they then replevied the debt, and after the replevin bond matured, an execution issued, and property of Kirtly was levied' on, and not sold for want of bidders; that a ven. ex. then issued,, and upon that Kirtly paid the debt.
¶5He also pleads that he was only the surety of Kirtly, and as, such he is discharged by time, and pleads the statute of limitations.
¶6The court below was of opinion the debt had been paid to-Josephine Frederick by'Kirtly, and perpetually enjoined the judgment of appellant, and by this appeal she seeks a reversal of that judgment.
¶7• The debt, it is true, was replevied after appellant filed her petition to attach as much of it as would pay her debt, and the fi fa issued thereon was levied on Kirtly’s property; but he and' appellee had filed their answer admitting an indebtedness, and if they paid the money to Josephine, or on her execution • after that they did it at their own risk. They should have taken steps to arrest the collection of so much of the debt as was attached *371by appellant and a payment afterwards to Josephine, would not discharge them from their liability to pay her.
¶8The execution was issued on the judgment against appellee which he enjoined in less than seven years before the statutory bar was complete.
¶9Wherefore, the judgment must be reversed, and the cause remanded, with directions to dissolve the injunction and dismiss appellee’s petition.