
    *Isler v. Willis.
    January Term, 1855,
    Richmond.
    A obtains advances from B & C, his millers, to pay oft judgments against himself, upon which executions had issued, and B &C takes an assignment of one of the judgments to themselves. These advances were obtained on A’s crop of wheat, to be thereafter delivered. B & C afterwards made further advances of money and produce to A on the same account. After the wheat is delivered by A, and before any settlement of the accounts between them, B & C sue out execution on the judgment assigned to them against A.
    Injunctions- — Judgment at Law. — Hisud : An injunction lies to restrain the execution of the judgment until a settlement of the accounts between A and his millers can be had before a commissioner. and upon such account being returned, the injunction should be dissolved in whole or in part, or perpetuated, according' to the result of such account.
    Abraham Isler filed a bill in September, 1847, in the Circuit Court of Jefferson, against Thomas H. and William B. Willis, millers of that county, alleging that, in 184S, he applied to those gentlemen to advance him above $400 on his crop of wheat then on hand, to pay off an execution against him, in the hands of the sheriff, in the name of one Culverson; and that they did advance him $399, and paid it to Robert Bucas, the sheriff; that another execution, in the name of Turner A. Milton and wife, against him, came to the hands of the sheriff in the same year (184S), for the sum of $439 36, with interest and costs, and that he again applied to the Messrs. Willis for another advance to pay it off, and that they advanced on this application about $463 22; that he proceeded to deliver and did deliver to them 961 bushels and three pounds of wheat, at the price $1 20 per bushel; that besides the advances above stated, the Messrs. Willis let him have several barrels of flour, 679 pounds of bacon and 48 pounds of *lard, and further advanced him $100 for harvest purposes; that no settlement of these transactions had been had between them; that the Messrs. Willis had taken an assignment from Turner A. Milton and wife of the judgment aforesaid, and had thereupon issued a new execution against him for the same amount, although the first execution had been returned, ‘ ‘money made and paid to T. A. Milton, plaintiff.” The bill asks for an injunction against the said execution, and an account of the transactions between the parties, alleging that on such account a large balance would be found due to the plaintiff. The injunction was allowed. The answer admits substantially the allegations of the bill in respect to the amounts advanced by the Messrs. Willis to Isler; denies that ariy price was fixed for the wheat; alleges that they became the assignees of Milton at the plaintiff’s request, and denies that the judgment in favor of Milton had been ever satisfied. It is further alleged and proved, that the question raised in regard to the return on the first execution, had been raised by the plaintiff on a motion at law to quash the second execution, and that the court had over-ruled the motion and sustained the second execution. Finally, the answer denies any indebtedness to Isler, on account of their wheat and other transactions ; but admits that the Milton execution is to be credited by the sum of $89 66.
    Ori the hearing of the case, the court dissolved the injunction (except as to the sum of $89 66), without ordering an account between the parties.
    From this decree Isler appealed to this court.
    Steger, for appellant.
    Patton, for appellee.
    
      
       See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   THOMPSON, J.

The court is of opinion, that instead of dissolving the injunction, the court below should have over-ruled the motion to dissolve, and should have referred it to a master commissioner of the court, to take an account between the parties, as to all matters growing *out of the sale and delivery of wheat by the plaintiff to the defendant; estimating the wheat at such price as the evidence might show the plaintiff to be en titled to, and crediting the defendants with such just payments and offsets as they might be entitled to; so as to ascertain whether or not the plaintiff was entitled to a larger credit on the execution than the $89 66 admitted by the answer; and if so, how much. The court should, in such interlocutory order of accounts have reserved libertj' to the defendants to repeat their motion to dissolve upon the coming in of the report of the commissioner, and upon such motion should have dissolved, .in whole or in part, or perpetuated the injunction, and disposed of the question of costs, as the result of the accounting should have rendered proper.

The decree was, “That the decree of the court below be reversed and annulled,” with costs, &c. “and the cause remanded to the Circuit Court of Jefferson for further proceedings to be had therein, in conformity with the foregoing opinion.”

The other judges concurred in the opinion of THOMPSON, J.  