
    *Defarges v. Lipscomb.
    Thursday, November 21st, 1811.
    Appellate Practice — Error Prejudicial to Appellee.— When a decree, by which an injunction is made perpetual in part, is considered erroneous, (to the' injury of the appellee,) in not having- made it perpetual in toto; the court of appeals will affirm, so much as allows him his costs, in the court of chancery; and, reversing the residue, and making such decree as that court should have made, will also allow him his costs in this court. 
    
    Upon an appeal from a decree of the superior court of chancery for the district of Williamsburg, by which an injunction, to stay proceedings on a judgment, was in. part perpetuated. The appeal was taken by the defendant in equity, who was plaintiff at law.
    
      
       Appellate Practice — Error Prejudicial to Appellee.— See foot-note to Day v. Murdoch, 1 Munf. 460, where the cases citing the principal case are collected.
    
   The record being submitted (without argument) by Wirt, for the appellant, and Wickham, for the appellee, the following opinion of this court was pronounced by

JUDGE ROANE.

“The court is of opinion that the said: decree is erroneous in not perpetuating the injunction for the whole sum recovered by the judgment enjoined; it appearing to the court that the appellee was entitled to a credit for forty-five bushels of wheat, at five shillings per bushel, with interest thereon from the year 1787, which sum, added to that allowed him by thé decree, would more than have extinguished the judgment. Therefore it is decreed and ordered, that so much of the said decree as gives to the appellee his costs in the superior court of chancery be affirmed; that the residue thereof be reversed and annulled; and that the appellant pay to the appellee, as the party substantially prevailing, his costs by him about his defence in this behalf expended. And this court proceeding to make such decree as the said court of chancery ought to have pronounced in lieu of that part which is reversed, it is further decreed and ordered, that the injunction aforesaid be perpetuated as to the whole sum recovered by the judgment enjoined as aforesaid.” o  