delivered the opinion of the court.

We are of opinion that the questions attempted to be raised by the present suit should have been presented, and can' be effectively determined only in equity cause No. ■ 2170. And such we understand to have been the opinion of the Circuit Judge. But the decree below is, in form, one upon the merits, and might perhaps be pleaded in bar of any claim that Gregory, or Gregory and Jones, might assert in suit No. 2170 to the funds in question. Without passing upon any of the questions raised by the pleadings in. this case, we hold that the decree should have been without prejudice to any right he or they may Have to make such claim in that suit, if they be so advised.

It is, therefore, ordered and adjudged that the decree below be, and the same is hereby, so modified, that the dismissal of the bill of complaint is without prejudice to cmy claim the plaintiffs or either of them may righfully assert in eguity suit No. 2170, in the court below, to the proceeds of the judgment against Swift. The costs of this cou/rt are adjudged to the appellees.