
    
      Foster v. Clarke.
    Decided February 19, 1817.
    i. Chancery Practice — Injunction—Judgments*—Case at Bar. — It is not equitable for a .defendant to a Bill of Injunction, (in whose favour a Judgment at law was rendered, for a sum of money, which he had paid as security for the Complainant,) to except to a Commissioner’s statement of the debits and credits between them, “to the time of the Judgment; on the ground that, from the circumstances of the case, and conduct of the parties, they considered their accounts as closed, and nothing due on either side;" and, yet, to select and rely upon the Judgment, as an item in his favour, in exclusion of the other items in the account.
    The Appellee having obtained a Judgment, on motion in a summary way, against the Appellant, in the County Court of Hanover for the sum of 421. 12s. 6d., paid by the former, in the year 1799, as Security for the latter; the Appellant obtained an Injunction from the Superior Court of Chancery, for the Richmond District ; alleging, in his Bill, that the Appel-lee was largely indebted to him on various accounts, particularly as partner in a Mercantile Company; that a balance was also-due the Complainant on his Administration Account of the estate of David Clarke, father of the defendant, who alone stood responsible for that balance; that some of the Credits, to which the Complainant was entitled, were not proper discounts at law, and some could not be well established except before a Commissioner in Chancery; that William Clarke, the plaintiff at law and defendant in equity, was insolvent; and, if he recovered the amount of the Judgment, the Complainant could not get it back.
    The defendant, in his answer, gave an history of various transactions in relation to the accounts in question, and concluded with declaring, that he believed himself to be a Creditor of the Complainant, not only on their partnership, but on all other accounts, independent of the Judgment sought to be enjoined.
    A Commissioner, by order of the Chancellor, examined, stated and reported the Accounts between the parties, including the Judgment; and, according to such statement, shewed a balance of $692,16 cents principal, and $346,20 cents interest, due to Peter Poster the Complainant: but the Commissioner expressed his opinion, that, “considering the relation between them, and the manner, in which they had transacted their business with each other, it never was their original intention to bring forward anj of these claims against each other. ”
    The defendant, by his Counsel, excepted to the whole statement of debits and credits, “to the time of the Judgment; because, irom the circumstances of the case, and conduct of the parties, as would appear from the evidence in the cause, they '*cofisidered their accounts as closed, and that nothing was due on either side.”
    Chancellor Taylor dissolved the Injunction, and dismissed the Bill, with Costs; from which Decree the Appeal was taken.
    
      
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425; monographic note-on “Inj unctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   February 19th, 1817.

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion that, as the sum in question was paid by the Appellee in the year 1799, and as the Appellee himself admits or contends, in his exceptions, that the other transactions between the parties, as of that date, should be considered as settled, in consequence of the lapse of time and the relations, which then existed between them, it is not equitable in him to select and rely upon this item in exclusion of others. On this ground the Court reverses the Decree with Costs, and perpetuates the Injunction.  