#### Martin v. Spier and Montgomery.

A and I!, settled accounts, and a balance of £ 47 was found due lo li, and A signed a writing to that effect, which B assigned ló a third person, who sued A, and recovered judgment. A, filed a bill for an injunction, setting forth errors in calculation, and stating that by the agreement of tiie parties, the paper which he iiad signed was not to he deemed a promissory, note. The answer denied all the parts of the bill but the errors. Haywood, Judge, consented with Wiiiiams, Judge, that the injunction should'be dissolved asto all but the errors.’ .But Haywood said, that it should be dissolved in toia, for the law would have admitted every defence which could he made on the instrument, as that it either was unnegotiah'le in its nature, or the assignee had notice of the defence previous to the ■ assignment. And if the assignee had not such notice, there could • be no defence either at law or Equity, where the instrument was negotiable.

This was an injunction bill, which stated that there had been mutual dealings between Martin & Spier, which they adjusted in 1780, at which time, f here was a balance of ¿10 and no more, due to Spier. That some time af-terwards, their dealings still continuing, they came to another settlement, at which time, Spier exhibited the articles which composed his former acconnr, and did not make the last balance (he first article in the new account, and that Spier promised upon this latter settlement, if *425aily errors, omissions or miscalculations should appear on either side, the same should be rectified. The bilí then stated several mis-entries in the account of Spier, making the sums charged amount to more than they were stated at in former accounts exhibited ; arid it also pointed out several errors by miscalculations, and stated several sums of money with which lie ought to have been credited — all which errors when rectified, changed the balance of accounts in his favor. The bill further stated that upon the last settlement, there was a balance struck of £47 in favor of Spier, and a writing was drawn, purporting that a settlement was made, and that the balance appeared to be £47 and was signed by Martin ; but it was not intended as a promissory note, and the parties agreed it should not beso considered. That the mistakes aforesaid were discovered after the signature of the writing, and that Montgomery, the other Defendant, had ■notice of then» previous to the assignment of the said writing to him. That afterwards, Spier assigned the said writing to Montgomery, who sued Martin tor the money mentioned in the note, and recovered a judgment, &c.— The answer denied all parts of the bill, except the errors in charging the sums of several articles higher than was staled m the account kept before the Iasi settlement j as to which no answer was given.

Judge Williams

I am of opinion the injunction should be dissolved as to ail except the errors unanswered j and that the account should be referred to the Master, who should report to next court.

Judge Haywood — i am for dissolving in toto, not because i think the answer has denied all parts of the bill, but because the bill itself shews no sufficient cause for coming into this court. After.a verdict at law, a man may apply for relief; but then the case where it is proper for him to do so must be an uncommon one, and must be specially stated so as to shew the cause there is for the interference of this court; but the míe as tocases in general under which this comes, being not distinguish-^ ed by any peculiarity of circumstances, is'that where the-complainant has complete relief at law, Equity will not take any epg¡%¿aoce of his cause. This is the case of the complainant. If, as he states it, ths writing assigned to Montgomery was nor a negotiable one, then it was. liable in the hands of Montgomery, notwithstanding the *426assignment, to every defence and objection that it was in the bauds of típier and at law he might have sei up these defences, and have lessened the damages by proving the errors and mistakes stated in the bill ¿ or if the writing was negotiable, and passed into the hands of Montgomery with notice of >hv defence Martin intended to make against it, then notwithstanding bs negotiability, lie might at law have defended himself, by'proving the notice Montgomery had of the- defence intended, previous io his taking an assignment of the note ; or if the writing was a negotiable one, and passed to Montgomery without, notice of the defence intended to be sei up, then it was free from any such defence both in Law and E-quby, and the bill ought not to be emertained. It is true a Court of JEqnity has a jurisdiction in cases of account, concurrent with the Courts of Common Law, even where at lavs the parry complainant may have compietf. redress ¿ yet the complainant must apply to the one or the oilier of (hese Courts, and he content with the sentence they pass, fie is not at liberty, first to sue’ or defend in a Court of Law, and alter trying his fate (here, apply toa Court of Equity. If he could not have completely defended himself without the aid of a Court of Equity, as if lie wanted a discovery, he should have filed a bill for a discovery before the verdict, had passed ¡¿gainst him, and nm have waited till after «he trial, and then dilayed the Plaintiff at law by an application to this court for an injmict on. Were this allowable., every Dnemlant wmld delay the Plaintiff at law, and fend off his cause a, long as possible, and afterwards have the benefit of nis de-fence by getting an injunction, and still longer delaying the Plaintiff. I am not for going one. step further in granting injunctions against verdicts at law, than are prescribed by the rules of a Court of Equity as laid down in the books. Injunctions arc a source of great delay to the Plaintiffs, and of great expeuce to Defendants, who are generally charged with the heavy expi-nce of. a suit in Equity, for no other purpose than that of obtaining a short . espite for a few momhs from execution. I am for dissolving in toto, but as the court are divided, Í am willing, rattier than no dissolution should take place, to dissolve except as to the errors in overcharging the articles mentioned in the bill.

*427xt was dissolved accordingly, except as to those arti-cíes, and the account referred to the Master to report upon at next term.

Not'!. — Vide Black v. Bird, ante 273, Welch v. Watkins & Picket ante 369, and ihe references, in the note to each case.