John Love died in 1844, having made his will, of which the defendant is the executor, and therein made the following bequests, with others:
"It is my will that my negroes Lem, Sam, Dinah, Salem, and Rufus be sold and divided between four of my children, Robert, Sarah, Mary, and Elizabeth; and that all my stock of horses, half my cows, wagon, sheep, and hogs be sold, and my debts paid out of the money, and the balance be divided among my said four children, Robert, Sarah, Mary, and Elizabeth."
The defendant sold the slaves and other property above mentioned, and, after the payment of the debts, there will be a surplus of $1,948.42, applicable to the legacies, deducting, however, the charges of administration. At the sale the plaintiff Robert made purchase to the amount of $409.78, for which he gave a bond, with the other plaintiff, Samuel Love, as his surety, payable, to the executor in January, 1845. In July, 1847, the defendant instituted a suit at law against the plaintiffs on their bond; and in August following this bill was filed. It (326) charges that, after the payment of all the testator's debts and charges on the estate, there is a large surplus to be divided among the four legatees above mentioned, of which one-fourth part belongs to the plaintiff Robert; and that such fourth will exceed the sum due on the said bond given by him; and that it was the duty of the executor to render to the plaintiff an account of the fund, and apply his fourth part to the satisfaction of the bond;but, instead of so doing, the defendant brought the suit on the bond without having accounted, and without even asking for a settlement or payment of the bond. The prayer thereupon is for a perpetual injunction, and general relief.
The answer states that the defendant did not object and would not have objected to come to a friendly settlement with the plaintiff in the premises, and to deduct from the plaintiff's bond the share of the estate to which the plaintiff was entitled under the will. But it states further *Page 235 that the plaintiff made no application of the kind; and, on the contrary, that the plaintiff and the three other legatees instituted a suit in the court of equity for an account and distribution of the whole estate in his hands, and that the defendant submitted to an account therein, and that the same was ordered by the court, and was taken in the master's office and reported to the court; and that in the account the defendant was charged with the whole proceeds of the sales as being in his hands in cash, and one-fourth thereof allotted to the plaintiff as his legacy, without allowing any deduction for, or taking any notice of, the sum due from the plaintiff on his bond for purchases at the sales; and that the master's report had been confirmed. The answer then states that the defendant, finding that the plaintiff was in that suit thus endeavoring to charge him with the whole of his legacy and to obtain a decree for the payment thereof in cash, was advised to protect himself from loss under such a decree for money, by having his demand against the (327) plaintiff ripened into a judgment by or before the time the decree could probably be pronounced; and, with that, view, and that alone, the suit at law was brought after the confirmation of the report.
There was a motion to dissolve the injunction on the coming in of the answer, which was refused. The cause was then set for hearing, and transferred to this Court. The bill must be dismissed. Supposing the case made on its face sufficient to sustain it, the reasons given in the answer why the defendant brought suit on the bond and ought to have judgment on it must strike any mind as fully sufficient. There is no suggestion that the defendant is in failing circumstances, whereby the plaintiff will be in danger of losing his legacy if the money due for his purchases be taken out of his hands. The only foundation for the bill is that it will be inconvenient to the plaintiff to pay his debt, instead of having it and the legacy extinguished pro tanto by deducting the less from the greater Certainly that would be in itself very right. But it seems plainly to be the plaintiff's fault that it was not done in taking the account in the other cause, in which the accounts in the whole estate were ordered. At least, it was as much the fault of the plaintiff as of the defendant. he had therefore no right to complain that the defendant should endeavor to meet his decree by a judgment in due time. But the was, in truth, no necessity for the present bill, for upon a petition in the first cause, the same relief could have been had without this additional expense; or, in a proper case, even after the judgment and decree, an order might have been obtained in either court that the parties should (328) *Page 236 mutually acknowledged satisfaction either in whole or in part, according to the justice of the case. The bill in itself is, indeed, radically defective. It simply prays an injunction upon the ground that the plaintiff does not owe the whole debt by reason of some counter equitable demand. But it does not ask any steps to be taken for ascertaining that demand. It does not pray for an account; and well it might not, as this plaintiff by himself could not demand it, and a plea of the pendency of the former suit by all the legatees for general account would have barred it. Such a bill will not lie, for the injunction in such a case is but incidental to the general relief which a plaintiff seeks, and to which he entitles himself by the facts stated in the bill. Here an injunction merely is asked for; and if granted, it would stand without the court being able to determine how long or for how much it ought to be kept up.
The matter will probably be adjusted between the parties, as the defendant in his answer professes to have been always willing to allow a deduction of the sum admitted by him to be due to the plaintiff. But, if it should be otherwise, the plaintiff can probably obtain the requisite order in the other cause. At all events, the present bill cannot be maintained without allowing all controversies to be split up and made the subjects of as many suits in equity as there are items in dispute, and granting injunctions upon isolated parts of a case without the opportunity of determining the general merits.
PER CURIAM. Bill dismissed with costs.
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