Newlin v. . Murray

63 N.C. 566

• Court: Supreme Court of North Carolina
• Decided: June 5, 1869
• Status: Published

Opinion

PbARSON, C. J.

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.

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 t o 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.