delivered the opinion of the court.

Admitting that the court properly rejected the deposition of the defendant in the execution, because not regularly taken, still that deposition shows such matter as should have induced the court to have stayed the giving of judgment until the deposition had been regularly taken. Certainly a stronger ground cannot well be conceived of, than that which is disclosed in the deposition.

The motion is predicated on the non-return of the execution; the proof is, that the non-return was produced by the act of the plaintiff himself; he had a right to control the execution, and if we believe the witness who gives the rejected deposition, did so, and having produced the default in the officer, he comes with an ill grace to ask judgment against him who obeyed his injunctions.

It is true, the officer might have returned the execution; but if, at the desire of the plaintiff, he held it up, and was not again instructed to proceed, the plaintiff must be taken as relying on his own judgment and management, and not on the act of Assembly; he, by his act, has made a law for himself and must be governed by it.

The judgment must be reversed, the cause remanded, and the defendant afforded an opportunity to procure his testimony.

Judgment reversed.