
    M’Gavock and others vs. Elliott.
    The clerk who is entitled to costs on the judgment sought to be enjoined, is not a proper party to the bill, and service on him does not give the court jurisdiction to proceed against the others, and decree against him for the costs of the suit in equity.
    A suit in the names of' George S. Elliott and Patrick Darby, against Joseph M’Reynolds, got into the supreme court at Nashville, of which court Randal M’-Gavock is clerk. The cause was so decided, that there was judgment against Darby and Elliott and James Jackson, for the costs. Execution for the costs was issued by M’Gavock, as clerk of said court, to the county of Weakley, where Elliott lived. Elliott then filed this bill, stating, that some years ago he had sold his interest in-his father’s estate to Darby, but had expressly agreed with him, Darby, that his, Elliott’s name, was not to be used in any suits to be instituted for the recovery of any property included in said sale, in order to avoid liability for costs. James Jackson, as alleged in the bill, appears to have been surety for the prosecution of the suit; but Elliott denies that he ever became such at his instance or request, and protests that he has no knowledge of either Jackson or M’Reynolds.
    The defendants to the bill, are Darby, M’Reynolds, Jackson and M’Gavock. The bill states, that Darby lived in Kentucky, Jackson in Alabama, M’Gavock in Nashville; and that M’Reynolds’ residence was unknown. It prayed for an injunction against the execution for the said costs. A subpoena and copy of the bill were served upon M’Gavock, who never answered. Publication was made as to Darby, in Frankfort, and as to Jackson, in Florence, neither of whom ever answered. No further notice was ever taken of M’Reynolds, except the statement above set forth concerning him in the bill. The bill was taken for confessed against Darby, Jackson, M’Gavock and M’Reynolds, and set for hearing ex parte. The circuit judge decreed a perpetual injunction, and made a decree that M’Gavock pay the costs of this cause, amounting to upwards of fifty dollars. He prosecuted a writ of error to this court.
    Washington, for plaintiffs in error.
   Peck, J.

delivered the opinion o.f the court.

There is no matter of equity in the bill against M’-Gavock and the other parties. Were there matters of equity which could be made to operate against them, of which we say nothing, they are not brought before the court rendering the decree.

The whole of the proceedings are irregular, and the decree given against M’Gavock without the shadow of equity and justice. Decree reversed, bill dismissed, and complainant ordered to pay the costs.

Bill dismissed.  