The plaintiff was an execution creditor of one Faucette, *Page 567 against whom the defendant as Sheriff had sundry executions, under which he had levied and sold, and received the money in dispute.
The reason assigned by the defendant for not applying the money to the execution of the plaintiff, was that at the time of the sale he had in his hands an execution of older teste, in favor of one Lea, and that he had applied the money to that. It was admitted that the collection of this execution had been enjoined, that it was in the hands of the Sheriff by the inadvertence of the Clerk, and that the injunction was pending at the day of sale; but that subsequently, and before the return of the process, by consent, the injunction was dissolved by an order of the Court.
His Honor, considering that this state of facts was no answer to the claim of the plaintiff, made the rule absolute to apply the money to the execution of the plaintiff; and the defendant appealed. The clerk or sheriff should not be made parties to a bill for an injunction; they are mere ministers of the law, and have no interest in the controversy. Edney v. King, 4 Ire. Eq. 465.
If Lea had been attached in contempt for suing out the writs of ven. ex., he could have excused himself by the averment, that the writs had been issued without his instruction or privity. The effect of the injunction was to "tie his hands." He has the injunction bond to look to for any damage in consequence of being put in this condition; and as he could not have been made responsible for, he is not at liberty to take benefit from, the accident that the writs happened to be issued without his knowledge.
The injunction would have protected the sheriff in making a return, "not executed, by order of the Court of Equity," so the writs had no legal effect. *Page 568
We are unable to perceive how the fact, that after the sale the injunction was dissolved by a consent order, can have any effect upon the rights of the parties to this proceeding. It would be a novel application to the doctrine of relation to allow this consent order to have the effect of giving validity to writs, which before had none, against bona fide creditors, who had taken judgments and sued out writs of execution.
PER CURIAM. Order below affirmed.