#### *The State of South Carolina vs. E. Waterman et al., sureties of J. L. E. Easterling, late Sheriff of Georgetown district.*

These were actions of debt, on the official bond of Easterling, deceased, late sheriff of Georgetown district. The writs were issued to Spring Term, 1836, and the actions were prosecuted for the benefit of one Taylor, of New York. On the 20th April, 1836, after tire commencement of these suits, C. & C., who were judgment creditors of Easter-ling, filed a bill in the Court of Equity for Georgetown district, against his executor, for an account. On the 27th of the same month, the Court made an order for tire creditors to file statements of their claims, on oath, by the 1st January, 1837, with the Commissioner ; and another order, enjoining them front proceeding at law against tire executor. Tire time for filing claims was afterwards extended to January, 1838. In January, 1838, the Commissioner made, a report of claims which had been filed in his office against Easterling, in his official capacity only; and the Court thereupon made a decree, that the sureties pay the amount of said claims to tire Commissioner, and that execution issue against them, accordingly; and further, that the creditors of the sheriff, who had failed to file their claims, be perpetually enjoined from pursuing the same against the sureties. Taylor’s claim was not filed in the Commissioner’s office, and, at Pall Term, 1838, these cases, which had been on the writs of enquiry docket, sinceFali;Term, 1836, were struck off. Notice was afterwards given to the defendants, that a motion would be made to restore them; and at Spring Term, 1839, such a motion was made, and affidavits offered on both sides. After hearing counsel, the Court made an order to restore them to the docket. The defendants gave notice of an appeal from this order, but did not prosecute it. ■ On the call of these cases for trial, at Spring Term, 1840, the defendants again moved to strike them from the docket, and his Honor, Judge Evans, presiding, granted the motion. Held, that it was an improper order in fhe Court below, and the cases were ordered to be restored to the docket.

*Before*Evans, J., *at Georgetown, Spring Term,*1840.

The above abstract presents the facts of this case, as they existed at the time the order was made by his.Hon- or, and the following are the grounds upon which the appeal was carried up, and which were argued in this Court.

*Grounds of Appeal.*

1. Because the decree of the Court of Equity, in the case of C. *&*C. against the executor of Easterling, cannot have any further effect than to exonerate the executor. The sureties of Easterling, as sheriff, are certainly liable for all claims against the sheriff, whether filed and proved agreeably to the order of the Court, or not, so long as the amount paid by them, and distributed under said decree, is not equal to the penalty of their bond.

*2052. Because the injunction, ordered by the Court of Equity, cannot effect Taylor’s rights, as he was never a party to the proceedings in the Court of Equity; neither were the sureties of Easterling.

3. The creditors of the sheriff cannot be restricted to a shorter period for bringing suits against the sheriff’s sureties, on their bond, than that established by the law of the land.

4. Because the motion to strike the cases from the docket again, was irregular, and ought not to have been entertained.

Curia, *per*

Wardlaw, J.

These cases were struck from the docket, either because it was supposed the injunction, ordered in Equity, prevented the Court of law from proceeding, or because, under the view which was taken of the equity proceedings, all further attempts by the plaintiff at law, were considered hopeless. But it does not appear to this Court that the Court below should have interfered to prevent the plaintiff from proceeding, if he would.

An injunction restrains those upon whom it is properly served, according to the order and practice of the Court of Equity; for breach of it, remedy may be had in the Court from which it issues; but it is not served upon a Court of law; and although a Court of law, regulating its own practice, will sometimes, in reference to advantages which, by reason of an injunction procured by himself, a defendant at law might also obtain from lapse of time, notice the fact that proceedings have been suspended by injunction, yet it will not undertake to prescribe or enforce the duty of its plaintiff served with an injunction, but taking care that no surprise be operated, or unfair advantage gained, will leave him to determine his course, at his own peril.

Whether there was an injunction, whether it had been served upon the plaintiff, whether it restrained proceedings against the sureties, who were bound by it, are all questions for the Court of equity, which the Court of law was not properly called on to decide, and had not the means of determining. The plaintiff’, if advised to pursue his *206rights further, must for himself choose between proceeding at law, and going into equity, to prove his demand upon the foot of the decree rendered there.

*Petigru & Lesesne,*for the motion. *Hunt,*contra.

The Court has been pressed to lay down general rules upon the subject of creditors’ bills, but being well content with the course of decision hitherto had on that subject, and perceiving that, to the reasons upon which the jurisdiction and beneficial interference of equity in the administration of complicated and insolvent estates are elsewhere rested, may here be added the disturbance of legal sureties, which necessarily results from the sale by a sheriff, under execution, of the lands of a deceased insolvent, the Court declines to do more than decide the questions presented at the threshold of the case in hand.

The motion is granted, and the cases restored to the docket.

Richardson, O’Neall, 'Evans and Butler, JJ., concurred.