Appeal from the Superior Court of the City of San Francisco.

Plaintiff recovered a judgment against the defendants on the first of May, 1856, and caused an execution to be placed in the hands of the sheriff, who on that day had sufficient property in his hands, consisting of the stock and furniture of the Franklin Restaurant, by'virtue of a writ of attachment in the suit, to satisfy the judgment. The same day the plaintiff stipulated with defendants that if they would pay him two hundred and seventy-eight dollars and eighty-two cents, on the fifth of May the execution should be suspended for one month; and then, if one hundred and twenty-five dollars should be paid, a suspension for another month should be given; and so on, from month to month, until all should be paid; but if defendants failed to make their payments the sheriff should proceed to sell. The property in the meantime to be considered in charge of a mutual friend, as the sheriff’s keeper, and that officer released from its safekeeping, and written orders were given the sheriff in conformity with the above. On the second of July, 1856, the sheriff returned the execution, its time having expired, and on the twenty-eighth of August, an “alias” issued. The monthly payments were punctually paid by the defendants up to the fifth of August, 1856, which stayed the execution until the fifth of September. On the twenty-second day of August, 1856, the same effects were attached by Baker & Corbinier for about six hundred dollars ; on the twenty-sixth of August, the goods were sold for about one thousand four hundred dollars. The sheriff refusing to pay over the money arising from the sale until the rights of plaintiff and Baker & Cordinier were determined, a rule was procured by plaintiff against him to show cause why he should not satisfy his execution against defendants. At the hearing thereof, the Court below decided that plaintiff had lost his priority, and the claim of Baker & Corbinier must first be paid out of the funds arising from the sale. From this order plaintiffs appealed.