Isler v. Willis ( 1855 )

THOMPSON, J.

The court is of opinion, that instead of dissolving the injunction, the court below should have over-ruled the motion to dissolve, and should have referred it to a master commissioner of the court, to take an account between the parties, as to all matters growing *out of the sale and delivery of wheat by the plaintiff to the defendant; estimating the wheat at such price as the evidence might show the plaintiff to be en titled to, and crediting the defendants with such just payments and offsets as they might be entitled to; so as to ascertain whether or not the plaintiff was entitled to a larger credit on the execution than the $89 66 admitted by the answer; and if so, how much. The court should, in such interlocutory order of accounts have reserved libertj' to the defendants to repeat their motion to dissolve upon the coming in of the report of the commissioner, and upon such motion should have dissolved, .in whole or in part, or perpetuated the injunction, and disposed of the question of costs, as the result of the accounting should have rendered proper.

The decree was, “That the decree of the court below be reversed and annulled,” with costs, &c. “and the cause remanded to the Circuit Court of Jefferson for further proceedings to be had therein, in conformity with the foregoing opinion.”

The other judges concurred in the opinion of THOMPSON, J.