
    William Ferguson et al. v. David Miller, Thomas Maxwell, William Grimes, and Benjamin Anderson, Executors of W. Anderson, and Sarah Archbold and Joseph W. Spencer, Administrators of John Archbold.
    This is a suit in chancery reserved from the county of Harrison. *The bill states that the plaintiffs are the children and heirs of Joseph Smith and Elizabeth Smith, his wife, who was one-of the heirs of David Miller, deceased. That David Miller died in 1816, leaving David Miller, the defendant, his administrator. Maxwell, Anderson, and Archbold were the sureties of the administrator. That a bill was formerly filed against these defendants by these plaintiffs, seeking an account, settlement, and distribution of the estate of David Miller, which was dismissed as to the sureties, merely on the ground that no suit could be sustained against them until the liability of the administrator was established ; but a decree was passed against Miller, the administrator,, finding a balance in his hands and ordering payment. The present bill avers the non-payment of the money, the insolvency of Miller and Maxwell, the surviving parties to the bond, and seeks to enforce the payment of the money found in the hands of the administrator by that decree, from all the parties to this suit.
    The defendants demur, assigning for cause that a former suit on the same cause of action was once instituted against these defendants, and was terminated by a general dismissal.
    Tappan and B. T. Wright, for defendants,
    rely upon the following points : That a decree, like a judgment, binds all parties and privies until the hearing and reversal by bill of review, 2 Johns. Ch. 205; 3 Ohio, 543; that general dismissal is a decree-upon the merits, 7 Johns. Ch. 286; and that this fact is so stated in this bill that the objection may be taken by demurrer.
   By the Court :

The position is undoubtedly correct that a decree upon the merits binds all parties to it. But the defense should be made by plea. The demurrer admits the truth of the statements in the bill, in which it is alleged that the former suit was dismissed without any investigation of the ultimate ^liability of the sureties. If the defense be good in this case, it must be presented in another manner.

Demurrer overruled, and the suit is directed to stand for answer.  