Opinion
10-25-1810
Todd v. Bowyer
Randolph, for the appellant. Call, for the appellee.
Upon an appeal from a decree of the Superior Court of Chancery for the Staunton District, dismissing a bill upon which an injunction had been granted, by the Judge of the late High Court of Chancery, on the 22d of April, 1796, to stay proceedings on a judgment obtained in March, 1794, in the County Court of Botetourt, on behalf of Henry Bowyer, Clerk, against Samuel Todd, Sheriff of that County, for 54l. 12s. damages, and 7 dollars and 43 cents, costs of suit.
The material ground of equity relied upon in the bill was, that posterior to the judgment, the complainant had discovered a settlement, according to which he was entitled to a credit for 181. 10s. 7d. 3-4.
The defendant alleged in his answer, that credit had been given on the execution for 181., " which then appeared to him to be about the balance due the complainant at their settlement: but it would appear by accounts, furnished by the complainant at that settlement, that injustice had been done the defendant."
May 12th, 1798, upon a motion to dissolve the injunction, the Court referred the accounts between the parties to three Commissioners; two of whom, viz. James Risque and Martin M'Ferran, reported on the 30th of April, 1802, that, in the presence of the parties, they had proceeded to inspect an account exhibited to them by the complainant, which account appeared to have been settled by the parties, and shewed a balance struck in favour of the complainant of 181. 10s. 7d. 3-4.; and that no documents were shewn to induce a belief that the said account and settlement were erroneous.
By an agreement dated May 16th, 1799, written on the back of the said order of reference, with a certificate of James Risque and Martin M'Ferran also endorsed thereon, under date of April 30th, 1802, (which certificate was verified by the deposition of James Risque taken June 25th, 1803,) it appeared " that the parties agreed that they had heretofore settled all accounts between them, except the claim of Clerk's tickets, for which the judgment was obtained; by which settlement there appeared a balance, in favour of the present plaintiff, of the eighteen pounds, which is credited on said judgment; but that balance the plaintiff alleged was 10s. 7d. more than the said credit, which the defendant was willing to admit rather than take the trouble of another investigation of their accounts; " that, " on the 30th of April, 1802, the complainant acknowledged in the Clerk's office of Botetourt, that he tore his own and the defendant's name from the said agreement, and contended he had a right so to do; it being his own paper, and in his own custody." April 12th, 1803, the Chancellor for the Staunton District decreed that the injunction be made perpetual; with liberty to either party (being first served with a copy of the said decree) to shew cause against it on or before the tenth day of the next term. On the 11th of July following, " by consent of the parties, by their counsel," the order made on the 12th of April was set aside, and their accounts referred to Master Commissioner Lockhart; upon whose report (whereby some errors in former accounts (though acknowledged by the above-mentioned agreement, of May 16th, 1799, to have been settled) were corrected, and thereupon a balance, amounting to 55l. 6s. 5d. 1-2 was stated against the complainant,) it was decreed, that the injunction be dissolved, and the bill dismissed with costs; " and that the plaintiff pay the defendant the sum of 6l. 8s. 3d. 1-2 for which he had received a credit improperly." [*]
From this decree the plaintiff appealed.
Randolph, for the appellant.
Call, for the appellee.
The President reported the opinion of the Court. Judge Tucker.
OPINION
Tucker Judge
Friday, November 15. The President reported the opinion of the Court, that the decree be affirmed.
The following was JUDGE TUCKER'S opinion. After stating the circumstances, in substance as above, (in the course of which he observed that, " for the reasons apparent on the face of the answer, the judgment ought not to be enjoined," ) he proceeded thus: " Although I approve of the principles of this decree, I have not been able to discover the particular items in the account stated by the Commissioner which would amount to the precise sum, for which the Chancellor mentions that the plaintiff had been improperly credited. I have therefore had recourse to the circumstances above stated as a basis of my own opinion. If Todd, by his unfair conduct, in tearing off his own and Bowyer's signatures from the agreement made between them on the 16th of May, 1799, (which was endorsed on the order of reference in the cause, and was evidently meant for the information and guide of the first set of commissioners appointed by that order,) had not brought himself within that rule of equity, 'He that doth iniquity shall not have equity,' I should have thought it highly improper to disturb that settlement. But, he having, by that act, imposed upon Bowyer the necessity of proving his accounts over again, I think the latter was fairly entitled to the benefit of any error which might thereafter be discovered therein. Approving, therefore, of the last commissioner's report, my opinion is, that the injunction be dissolved as to 551. 6s. 5d. 1-2, including the costs of the judgment of Botetourt County Court; that the Chancellor's decree be reformed in that manner, as has been done on some other occasions; and that the appellant, as the party prevailing here, recover the costs of his appeal here.
See 1 Wash. (VA) 389, Pendleton v. Vandevier.
[*]See Fitzgerald, Executor of Jones, v. Jones, ante, p. 1.