
    *Benjamin Nettles v. Thorit Elkins and Wife, ane John H. Nettles.
    A, executor of B recovered a judgment against C in his own right. B’s estate was indebted lo C as administrator to D. A and C agreed to discount these debts, and thereupon C settled the debt of B to B’s estate, but satisfaction was never entered on the execution. A afterwards left the State, and the defendants took out letters of administration on the estate of B de bonis non, and attempted to enforce this execution against C. The court enjoined the execution, and ordered an account between the parties subject to the agreement to discount. Courts of equity have generally adopted the rule at law as to discount, but in cases of peculiar hardship they will extend the rule, or enjoin one party from proceeding until the matter of set-oiFbe determined at law.
    The defendant, John H. Nettles, as executor of Zachariah Nettles, obtained a judgment ag-ainst the complainant for §243 20 cents, besides costs. This was a bill to enjoin the proceedings on that judgment, on the ground that Zachariah Nettles, the testator, was indebted to Margaret Campbell, (now deceased,) the administration of whose estate was committed to the complainant, in a greater amount. The complainant alleged in bis bill, and the defendant, John H. Nettles, admitted in his answer, that Zachariah Nettles was indebted to the said Margaret Campbell in the sum of §600, from which he claimed a deduction of §90 paid to her in her lifetime by his testator. He also claimed a reasonable compensation, which he estimated at 850, for his trouble and expense in collecting the said sum of §600 on account of the said Margaret Campbell. And he further admitted, “that he was well satisfied that his testator stood indebted to the estate of Margaret Campbell in a larger amount than the judgment which he, as the executor of the said Zachariah Nettles, obtained against the complainant. That after complainant had become the legal representative of the said Margaret Campbell, he entered into an arrangement with defendant, John H. Nettles, to adjust and settle said claims. And defendant is fully persuaded that it would have been the interest of the estate of his testator had said arrangement been carried into effect by discounting one debt against the other. That the pretences set up by his co-defendants against the complainant’s demand are either not founded in fact or misconceived.”
    After these transactions and the removal of John H. *Nettles r*j0g out of the State, administration de bonis non of the estate of L Zachariah Nettles was granted to the defendants Thorit Elkins and wife, who, disregarding the agreement before slated, were proceeding to enforce the execution founded on the judgment against complainant, and in opposition to the complainant’s bill, insisted that the agreement was not binding on them.
    Thompson, Chancellor, who heard the cause, dismissed the bill on the ground that the debts were in different rights and could not be set off.
    From this decree the complainant appealed.
    Feb. 16, 1827.
    Johnston, for the appellant.
    The injunction is not prayed for solely on the ground that the debts could be set off one against the other, but on the express agreement that the same should be so discounted. But in equity, without the agreement, the discount would be ordered. Under the agreement of the parties, equity would consider the execution as satisfied.
    Pearson, contra.
    Courts of equity have adopted the same rule as the courts of law as to discounts. They must be in the same right. 4 Johns. Cha. Rep. 287.
   Curia, per

Johnson, J.

The question whether the administration de bonis non was properly granted, and superceded the power of the executor, has not been mooted here, and f shall not turn out of my way to consider its propriety. It is enough that what has been rightfully done by the executor is binding on his successors, the administrators debonis non. The ground relied on by the defendants, Thorit Elkins and wife, and on which the decree proceeds, is that these demands are in different rights, and, therefore, cannot be sot off one against the other.

*It is true that the courts of equity have generally adopted the rule of the courts of law on this subject, and yet I can conceive a case of such peculiar hardship as would justify a court of equity in permitting it, or in enjoining the one party from proceeding until the matter of set off should be determined at law. 2 Madd. Cha. 662.

But this question is concluded by the agreement of the parties, as the executor of Zachariah Nettles, John H. Nettles, was competent to make such an agreement. He did enter into an agreement for that purpose, and he then thought and still thinks it was the best interest of his testator. Upon investigation, it is found that the demand is justly due to the complainant, and there is no pretence that the estate of Zachariah Nettles is insolvent. Where, then, is the injustice to permit it?

Again : Confiding in this arrangement, the complainant might not have made the necessary preparations to meet this demand on him; and he has actually accounted with the distributees of the estate of his intestate for a part of the fund. Reposing in security, he has neglected to prosecute his claim at law until, in all probability it would, but for these circumstances, have been barred by the statute of limitations, and at all events it would have been delayed. To permit the defendants to profit by it, would be to sanction a most iniquitous fraud.

It is, therefore, ordered and decreed, that the defendants be perpetually enjoined from proceeding on their execution at law against the complainant, and that it be referred to the commissioner to ascertain how much is due and owing from the defendants, as the representatives of Zachariah Nettles, to the complainant, as administrator of Margaret Campbell; taking into the estimate the amount paid to the said Margaret Campbell, and what shall be found due to the said Zachariah Nettles* for his trouble and expense in selling her lands and collecting the money. If, upon such reference, it shall be found that the amount due to complainant exceeds the amount of the judgment against him, then the defendants are to pay the balance to the said complainant. But if, on the other hand, a balance shall be found due to the defendants, then the complainant is decreed to pay that balance, and the judgment and execution at law shall stand as a security therefor.

Colcock, J., dissented.

Decree reversed.  