¶1The cause was heard upon bill, answer and proofs, and the court arefof the opinion that the material allegations of the bill are sustained; and the question is, whether the plaintiff is entitled to relief in this form.
¶2The substance of the case is that the sheriff holds the proceeds of the goods attached by him in trust for the creditors he represents, and defendant being the first attaching creditor and having obtained a judgment for an amount sufficient to absorb the whole, must be regarded as having the equitable interest in the price to be paid by the plaintiff; and payment to him ought in equity to be a discharge of the plaintiff, unless the officer has other claims upon the aAmils of the plaintiff’s note paramount to hers, and of this there is no proof or suggestion in the answer or otherwise.
¶3It is necessary, however, that the sheriff and the plaintiff’s surety, and also Hiram Barker, to whom the debt against Eleazer D. Barker in favor of the defendant has been assigned since the above mentioned payments, be made parties; and upon that being done, the plaintiff will be entitled to a decree for the application of the sums of money and goods so advanced to the payment of the plaintiff’s said note, unless upon the coming in of the new parties a different case is made.