
    *Staples v. Turner Adm’r & als.
    November Term, 1877,
    Richmond.
    Absent, Staples, J.
    
    Equitable Jurisdiction.' — S, 'who is executor of his father, A, and M, who is administrator of T, have a settlement of accounts between S individually and as executor of A and T in his lifetime, extending through a number of years and embracing many items. All these items, whether as individual or as executor, are brought into the statement, and there is a balance against S of $1,176.10. At the foot of the statement S says he is only to be individually responsible for what appeared to be due from him in his individual character. M sues S upon this account, and S applies for an injunction to stay proceedings; which is granted upon his confessing judgment. In his bill he points out a number of what he alleges are errors in the account, and items which are against his testator’s estate— Held :
    1. Same. — It is a proper case for relief in equity.
    2. Injunctions to Action at Latv — Confessing Jnclgments- — The injunction should have been granted without requiring S to confess a judgment in the action at law.
    C. Accounts. — The court should direct the account as individual and as executor to be taken separately.
    4. Effect of Erroneously Requiring Confession of Judgment. — Though S should not have been required to confess a judgment in the action at law, it may be held as a security for any amount found upon settling the accounts, to de due from him individually.
    This case was argued at Wytheville, but was decided at Richmond. It was a bill filed in the circuit court of Patrick county by Samuel G. Staples, to enjoin Murray *Turner, administrator of Rufus Turner, deceased, and others, from proceeding in two actions brought in said court against the plaintiff by said Turner for the benefit of Hardin W. Reynolds and James H. Rangely. The injunction was granted on the plaintiff’s confession of judgments in the cases.
    The plaintiff in his bill states, that at the instance of Murray Turner, administrator of Rufus Turner, deceased, a partial settlement was made of outstanding mutual accounts between the estate of plaintiff’s testator, Abraham Staples, deceased, and between said Rufus Turner and the plaintiff, which he files as an exhibit with his bill; that plaintiff at the time informed said Turner that such a settlement could, under no circumstances, be regarded as final, and inasmuch as the large amount involved was against the estate of plaintiff’s testator, plaintiff was to be held individually responsible only for what appeared to be due from him in his individual character; to which Turner agreed, and this agreement was embraced in the statement of the account.
    The plaintiff then proceeds to set out a number of errors which he insists exist, in the statement, and also items of charge against Abraham Staples. And in consequence of the complicated character of the transactions as set forth in the bill, the large amount involved, the length of lime during which these transactions have been standing, the difficulty that must attend a settlement, the plaintiff has only an adequate remedy in equity. Pie therefore prays that a separate account may be taken of all transactions between Rufus Turner and the plaintiff individually, and also between Murray Turner, as administrator of Rufus Turner since his death, and complainant as executor of Abraham Staples, deceased, and between said Murray, as administrator of *Rufus Turner and the plaintiff individually. And he prays for an injunction and for general relief.
    Murray Turner demurred to the bill, and also answered. Pie says that after the settlement referred to in the bill, the balance found due to him was assigned to his co-defendants, Reynolds and Rangely, with the distinct approval and consent of the plaintifl Staples, and as a favor to him, because he was surety on Russell Turner’s sheriff’s bond, Turner’s estate of doubtful solvency, and the said bond being liable to the co-defendants’ debts. He says the settlement was carefully made, and both were prepared for it. That plaintiff was particularly anxious for it, because he wished to get the benefit of the vouchers in a settlement of his accounts then being made by the commissioner in a suit against him as executor of Abraham Staples. They set down to work with all the papers before them, and the calculations were all made by the plaintiff himself. He denies that the admission of illegal vouchers was afterwards to be corrected, but insists that there were none such. He denies that it was a partial settlement. He denies that the plaintifl informed him that said settlement could, under no circumstances, be regarded as final. He says Rufus Turner died ten years ago, and there could have been nothing that the plaintiff could not then have known. He denies that the greater part of the amount is against A. Staples’ estate, and says every dollar was due then from fhe plaintiff individually, or he has since made himself so liable by settlements and assumpsit; and he says when the settlement complained of was made the plaintiff took possession, and has now every voucher or charge against him individually, and against each and all of the distributees of his father’s estate, and against him as executor, and he has been allowed ^credit with full interest, as respondent has been informed and believes, for every dollar in his settlement made by commissioner Clark, now filed in the case of Martin v. Staples’ ex’or. He refers to said settlement in proof of this allegation; and he says that the object of the plaintiff in making the settlement was to get possession of these very claims and vouchers so as to get credit therefor in said settlement. He then proceeds to contest the objection of the plaintiff to the several items in the statement of account.
    By the statement made out by the plaintiff and Murray Turner, which was made in 1871, the charges against the plaintiff, including his own and the claims against A. Staples’ estate, amount to. $3,88199 This is credited by amount of S.
    G. Staples’ executorial and individual account. 1,705 89
    Leaving the amount due from Staples . $1,176 16
    At the foot of this account is the following:
    The above settlement made this day between me and Murray Turner, administrator of Rufus Turner, deceased, embracing claims, tickets, &c., against me individually, as executor of A. Staples, deceased, against Mary P. Kellog, C. P. Mendenhall, N. G. Hairston and Waller R. _ Staples, showing a balance in favor of said Turner, aclministrator, of eleven hundred and seventy-six dollars and ten cents, any errors in calculations and of papers admitted to be corrected. I am only hereby bound for what is charged against me individually.
    Samuel G. Staples,
    Executor of A. Staples, deceased.
    November 3d, 1871.
    *At the September term, 1873, of the court, the cause came on to be heard, when the court made a decree directing a commissioner to settle and adjust the matters embraced in the statement filed in the cause as made between plaintiff and defendant, and correct any errors and mistakes in the same, and state any matters pertinent to a settlement between said parties, and report the samé to the court.
    The commissioner made his report in September, 1873. He did not state an account against Staples in his own right, and another as executor of A. Staples, deceased, but blended all the items in one account, and he reported a balance against him as of the Sd of November, 1871, of. nine hundred and sixty-four dollars and one cent. To this report the plaintiff excepted because he had not severed the accounts, and stated one with him individually and another'with him as executor.
    The cause came on to be heard on the 35th of September, 1873, where the court overruled the plaintiff’s exception to the report, and made a decree dissolving the injunction as to $964. as of the 2d of November, 1871. And Staples thereupon applied to a judge of this court for an appeal; which was allowed.
    J. A. Gilmore, for the appellant.
    A. M. Lybrook, for the appellees.
    
      
      He was related to the appellant.
      For sequel of the principal case see Turner v. Staples, 86 Va. 300.
    
    
      
      E<initnble Jurisdiei ion. — On the question of equitable jurisdiction the principal case is cited in Penn v. Ingles, 82 Va. 70; Barton’s Ch. Pr. (2d Rd.) 33.
    
    
      
      lnjunef ion to Action at Law — -Confessing Judgment. — See Thornton v. Thornton, 31 Gratt. 212, and note, for a discussion of the question of requiring a plaintiff who seeks to have the proceedings in an action at law enjoined to confess judgment. See also, Whitehead v. Coleman, 31 Gratt. 788; Barton’s Ch. Pr. (2d Ed.) 56; Parsons v. Snider, 42 W. Va. 517, 26 S. E. Rep. 285.
    
   Anderson, J.,

delivered the opinion of the court.

The court is of opinion that the decree of the circuit court of September, 1872, directing an account, is erroneous in not requiring the individual and the executorial account of Samuel G. Staples to be stated separately. And the report of the commissioner, for the same reason, *is erroneous. The said accounts are blended in the statement made by the parties, which is the foundation of the suits at law; but in that alleged settlement, it appears upon the face of the paper, that any errors in calculations and of papers admitted, were to be corrected, and that appellant was only bound for what is charged against him individually. And he filed his bill in chancery, as the most appropriate jurisdiction for correcting errors in the account so stated, and for separating the individual and fiduciary accounts, and ascertaining the amount for which he was individually bound. It is at least questionable whether this could be done in a court of ordinary jurisdiction. It was clearly more appropriate to the chancery jurisdiction; and to the attainment of justice and the enforcement of what had been agreed by the parties, it was essential that the individual and fiduciary accounts of Samuel G. Staples should be stated separately.

The court is also of opinion, that the decree of the 25th of September, 1873,_ is erroneous. It is erroneous in overruling plaintiff’s first exception to Commissioner Clark’s report, upon the ground that in the statement of the account he blended the plaintiff’s individual matters with his accounts as executor of Abram Staples, deceased. The court will not now pass upon the other exceptions to the commissioner’s report. Those matters of exception should be left open, inasmuch as the whole account is stated on wrong principles. The said ■ decree is erroneous in toto, inasmuch as it proceeds upon the idea that Samuél G. Staples is personally liable for the whole account, although it was agreed that he should only be bound for what was charged against him individually; and because it dissolves the injunction for $964.10, which was the balance due R. Turner’s administrator in the *opiision of the circuit court, upon the whole account, individual and fiduciary.

The court is further of opinion, that in the light of the Great Falls Manufacturing Co. v. Henry’s administrator, 25 Gratt. 575, and authorities therein cited, the case 'was not a proper one for requiring the confession of judgments by the appellant in the suits at law as a condition upon which the injunction would be awarded. Although such condition is not expressed in the injunction order, the application for and the order granting the injunction and the confessions of judgment were made on the same day in open court, and the inference is that the injunction was awarded upon the condition that the judgments were confessed. The presumption is that the judgments were confessed with the understanding that then the injunction would be awarded, and being already confessed, it was unnecessary to express the condition in the injunction, order. It cannot be presumed that the appellant would have voluntarily come forward and confessed judgment for demands which he was contesting, and to resist which he had brought his bill to injoin the proceedings at law, if he had not been required to do it, in order to get the injunction.

But the judgments are under the control of the chancery court, (cases cited supra), and the court is of opinion that the judgments may stand as security for so much as shall be found to be due from the defendant individually, upon an account to be taken by a commissioner of the court, and that the injunction should be dissolved as to so much as shall so appear to be due from him individually, to be apportioned between said judgments, and should be perpetuated as to the residue; and for such sum as may appear to be due from the estate of Abram Staples, deceased, if any, upon the taking of said accounts, the appellees should *have a decree against Samuel G. Staples, the executor, to be paid ratably out of any assets of hi.s testator in his hands to be administered.

It is therefore adjudged, ordered and decreed, that the decree of the circuit court of the 25th of September, 1873, be reversed and annulled, and that the decree of September, 1872, be amended and modified in conformity with this opinion; and that the appellee pay to the appellant his costs expended in the prosecution of his appeal here; and the cause is remanded to the said circuit court for further proceedings to be had therein, in conformity with this opinion.

Decree reversed.  