
    Samuel B. Harris v. John Carlisle and Andrew Carlisle.
    "Where a respondent in chancery admits an allegation in the bill, which he is called to answer, and alleges other and new matter to avoid the effect of such admission, the proof of such new matter rests upon the respondent who introduces it.
    Bill of review, reserved in Ross county.
    The original bill was filed in 1824, under the provisions of the act of the 22d January of that year. 2 Chase’s Stat. 1278, sec. 10. The bill states that the complainant had recovered a judgment at law against John Carlisle, on which an execution had been issued and returned nulla bona; and that Andrew Carlisle was indebted to his co-defendant lor moneys received to his use, for goods, wares, and merchandises, and then had in his possession, goods, wares, and merchandises belonging to his co-defendant, which could not be reached at law. The bill charges a fraudulent combination to keep the property and moneys beyond the roach of creditors, and seeks an appropriation of it in payment of the complainant’s judgment.
    John Carlisle, in his answer, admits the complainant’s judgment, execution, and return, as stated in the bill, his inability to pay, and denies all other matters charged. Andrew Carlisle, in his original answer, filed January 4, 1825, denied having any property of his co-defendant in possession. He speaks of a settlement between them on July 3, 1824, at which time he was indebted ; but gave his notes to individuals whom his co-defendant was owing for the amount, and states that since that time, John ‘Carlisle had become indebted to him for a balance of one hundred dollars, as by his account rendered. This answer was excepted to, the exception sustained, and an amended answer filed on July 14,1825. In this amended answer, this defendant states a partnership with M. Woodsidos, in the mercantile business, in 1822, and that priorto that partnership, he had received nothing from his co-defendant. That on forming that partnership John Carlisle agreed to pay fora moiety of the goods, but afterward became embarrassed, was unable to do so, and made *bim noadvances, otherwise than by loan. That during the existence of this firm, it fell in debt to John Carlisle in the amount of one thousand three hundred and fourteen dollars and sixty-five cents.. The partnership was dissolved, and this defendant agreed to pay Woodsides for his interest one thousand six hundred and seventy-five dollars twelve and a half cents, and this agreement was so modified that he agreed to pay John Carlisle’s debt. That in February, 1823, he commenced business for himself, and exhibit “ A,” he says, shows the transactions between him and his co-defendant to July 1, 1824. On that day a settlement took place, and a balance was found due his co-defendant of two hundred and seventy dollars, for which he executed his note to one Brown, to whom his co-defendant was indebted, at his request. This answer need be pursued no farther to arrive at the point in controversy. A replication was filed, and several depositions taken; but it is on./ necessary to refer particularly to those of Moses Dimmitt and William Mann Carlisle.
    Dimmitt testifies that John Carlisle furnished Andrew with a large sum of money about the time Andrew was to leave for Philadelphia, in 1823. The amount, he believes, was eleven hundred dollars. A part of this sum, he supposed, was appropriated to pay John Carlisle’s debts, but he did not know that such was the fact.
    W. M. Carlisle swears that on his return from New Orleans, in 1823, Andrew received of John a sum of money, which he understood to be about eleven hundred dollars. On this evidence, the court of common pleas dismissed the bill. It came by an appeal to the Supreme Court, and was tried on the same evidence at the November term, 1827. The Supreme Court determined the equity of the case was with the defendants as to all matters, except the eleven hundred dollars and another item, not now necessary to notice, and referred the ease, as to those items, to a master. No report was made, and at the November term, 1828, the defendants filed amended answers, and a new reference was made of the items in dispute. It is to be observed that on exhibit “A,” referred to by Andrew Carlisle in his first amended answer, and made a part of it as a statement of the accounts between the defendants, there is neither a debet nor credit of eleven hundred dollars, but a credit, under date of November 1, 1823, of six ^hundred and eighty-eight dollars and seventy-five cents, as a balance of cash borrowed.
    Andrew Carlisle, in this last amended answer, admits the receipt of the eleven hundred dollars proved by Dimmitt and W. M. Carlisle. He says, explaining more fully the credit of November 1, by balance of cash borrowed, six hundred and eighty-eight dollars and seventy-five cents, that it is a part of the eleven-hundred dollars proved by the witnesses, which he received when going to Philadelphia. That the amount was not entered at the time on book, but on a separate piece of paper; and when he returned, certain amounts he had paid for and advanced to his co-defendant were deducted, and the balance credited, which is the credit on exhibit “A.” The amended answer of his co-defendant sustains him in the statement thus made. On this statement of the case, at the November term, 1829, the master commissioner reported in favor of the defendants, and the bill was dismissed on the ground, so far as the eleven hundred dollar item was concerned, that it was accounted for by the last amended answers of the defendants in the payment of John Carlisle’s debts, small-sums advanced to him, and by the credit on exhibit “A,” six hundred and eighty-eight dollars and seventy-five cents. The counsel for the complainant suppose the court erred in dismissing the-bill, and seek a review and reversal of that decree.
    B. G-. Leonard, for complainant.
    R. Douglass and U. H. Hunter, for the defendants.
   Judge Wood

delivered the opinion of the court:

Did the court err, in this case, in receiving the last amended answers of the defendants as sufficient evidence to discharge them from accountability to the complainant for this eleven hundred dollars, and proceeding to render the decree now sought to be reversed? The rule is, that when the answer admits a fact, and is responsive to the bill, the answer must be disproved by the complainant, if he would avoid the effect of such admission; but if it be necessary for the defense to avoid it, and the answer set up new matter, in avoidance, such new matter must be proved* aliunde. Is not this the case before us? To avoid this item of eleven hundred dollars, proved by two witnesses to be in Andrew Carlisle’s hands, in *his third answer he admits it, but says he paid a part of it to and for his co-defendant, and the balance-is the credit of November 1, 1823, on exhibit “A,” six hundred and eighty-eight dollars and seventy-five cents, which credit this amended answer is more fully to explain.

In Hart v. Teneyck, Chancellor Kent refers to a case before Lord Cowper, where creditors filed a bill against an executor for an account of personal estate. The executor answered that the "testator left eleven hundred pounds in his hands, and that afterward, on a settlement, he gave his bond for one thousand pounds, .and the other one hundred pounds was given him by the testator for his care and trouble. There was no other evidence in the case ■of the eleven hundred pounds being deposited with the executor. 'The answer was put in issue, and it was resolved by the court, "that when an answer was put in issue, what was confessed and .admitted by it need not be proved; but that the defendant must make out, by proof, what was insisted on by way of avoidance. Of this case the chancellor remarks, it is undoubtedly the long .and well-established rule iñ chancery, and that it was determined, in Talbot v. Rutledge, that if a man admits, by his answer, that ■he received sums of money at certain times, and states that he paid away those sums, at other times, in discharge, he must prove his discharge, otherwise it would be to allow a man to swear for himself and be his own witness; and I am satisfied, says he, the rule is perfectly just, and that a contrary doctrine would be pernicious. In Thompson v. Lambe, 7 Ves. 587, Lord Eldon •said he was clearly of opinion a person charged by his answer, •could not by. his answer discharge himself, not even on his examination before the master, unless it is in this way: If the answer or examination states that, upon a particular day, he received a sum of money and paid it over, that may discharge him; but if he says, on a particular day he received a sum of ' money, and upon a subsequent day paid it over, that can not be ■used in his discharge; for it is a different transaction. There are many authorities to support this rule. 1 Wash. 224; 1 Mum. 373; Green v. Hart, 1 Johns. 580. In the court of errors this doctrine is carried to the full extent. Hart charged in his bill that he paid a full and valuable consideration for a note indorsed to him ■by Green, who, in answer to this charge and the interrogatory founded on it, alleged that part of the consideration for indorsing the note *was usurious. Chancellor Lansing held that the .allegation of usury was in avoidance merely, and not sufficient without other proof, and such was the opinion of the court.

These cases appear to us to bear a striking analogy to the one ‘before us. They are certainly no stronger for the application of the rule. In this case Andrew Carlisle is first charged, not by his own admission, but by the testimony of two witnesses, with the receipt of eleven hundred dollars, and it is then only that it is admitted and new matter set up to explain more fully the credit of November 1, 1823, on exhibit “A.”

In receiving the answers of the defendants as sufficient evidence to discharge Andrew Carlisle from accountability to the complainant for this sum of eleven hundred dollars, and thereupon dismissing the complainant’s bill, we think the court erred, and that the decree of dismissal should be reversed, with costs.  