
    William Flagg et al., executors of Isaac V. Vandoren, vs. Seth Bonnel and others.
    If the defendant interposes a plea in bar- to the whole bill, and the complainant does not reply, but is disposed to question its validity, instead of the complainants demurring to it, the defendant must set it down for argument, and this answers to the demurrer at law. If the plea should be decided not to be good, the defendant must answer the bill; if it is sustained, the complainant must reply to it.
    When he does reply and tabes issue, the determination of that issue is final.
    The bill alleges that James Price, William Flagg, and Henry M. Price were partners in trade, and became embarrassed in their business; that James Price was seized in fee of valuable real estate in Hew Brunswick, and that, without any consideration therefor, he conveyed it to Seth Bonnel, one of the defendants, to the end, and with the intent and purpose, to hinder, delay, and defraud the creditors of the said James Price and of the said partnership; that several judgments, for large amounts, were recovered against the said partners, and executions issued thereon, and returns made of no goods or lands to satisfy the same; that the said judgments were assigned to Isaac V". Yandoren, the complainants’ testator, and are still unsatisfied. The bill prays that the said deed may be declared fraudulent and void, and be set aside, as against the said judgments, and that the defendant, Seth Bonnel, may make a full discovery, &c.
    To this bill the defendant, Seth Bonnel, has pleaded, “that the said Isaac Y. Yandoren, the original complainant in the said bill of complaint, and who is now deceased, never had, in equity, any real title to or beneficial interest in the said several judgments in the said bill of complaint mentioned, and that he was a mere nominal assignee of the said judgments, and held the same for the use and benefit of the said William Flagg, by whom the several considerations in the said bill of complaint alleged to have been paid for the several assignments of the said judgments were paid; or if such considerations were paid by the said Isaac Y. Yandoren, the same were paid by him at the request of, and for the use and benefit of the said William Flagg, and not for his own use or on his own account; and that the said judgments now belong to the said William Flagg in his own right, and not as one of the executors of the said Isaac Y. Yandoren, and have therefore and thereby become extinguished and paid, and ought to be cancelled; and that the said Seth Bonnel, the defendant, further in fact saith, that he, the said William Flagg, who is now one of the executors of the last will and testament of the said Isaac Y. Yandoren, is the same identical William Flagg in the said bill of complaint mentioned as one of the said firm, consisting of James Price, Henry W. Price, and William Flagg, and that the said William Flagg was one of the defendants in the said several judgments,” &c.
    To this plea the complainants filed a replication, and the cause was heard on the pleadings and proofs.
    
      H. V. Speer, for complainants.
    
      J. W. Scott, for defendants.
   The Chancellor.

The defendant has failed to support his plea. The only controversy between the parties is, whether the complainant is entitled to a decree according to his case as made by the bill, or, as the defendants’ counsel insists, whether the court will permit the defendant to answer. The defendant has laid no special ground before the court why the practice and rules of pleading should be departed from in this ease. The case is an ordinary one, and must be governed by the settled rules of practice.

The plea goes to the whole bill. It is in bar to the complainants’ equity; and had it been supported, would have been final and conclusive between the parties. There is no difficulty as to the character or extent of the plea. It is a plea to the merits, and, as such, must be disposed of. On behalf of the defendant, it is insisted that, as to pleadings being conclusive and final, the practice of courts of law and equity is analogous. Admitting the analogy, I do not perceive how it can aid the defendant. If, at law, the defendant interposes a plea in bar, the plaintiff must either demur or take issue upon it. If he demur, and the demurrer is sustained, the court will, in its discretion, permit the defendant to plead anew; or if judgment is against the demurrant, he will be permitted to take issue on the plea. But if, instead of demurring, the plaintiff should take issue, the trial of that issue is final. So in a court of equity, if the defendant interposes a plea in bar to the whole bill, and the complainant does not reply to it, but is disposed to question its validity, instead of the complainants demurring to it,' the defendant must set it down for argument, and this answers to the demurrer at law. If the plea should be decided not to be good, the defendant must answer the bill. If it is sustained, the complainant must reply to it. When he does reply, and takes issue, the determination of that issue is final. The practice is well settled, and the decisions are uniform. Dan. C. P. 224. “ The office of a plea in bar at law is to confess the right to sue; avoiding that by matter dehors, and giving the plaintiff an acknowledgment of his right, independent of the matter alleged by the plea. The plea alleges some short points, upon which, if issue is joined, there is an end of the dispute. In this court, in general cases not classed among those where certain averments seem to have been required, both by the plea and the answer, but where the defendant, pro hac vice, for the sake of the argument, admits the whole bill, I have understood the rule to be the same here as at law, that the plea admitting the bill interposes matter which, if true, destroys it, and upon the truth of which the plaintiff is at liberty to take issue.” Boyle v. Adams, 6 Ves. jun. 594. In Wood v. Strickland, 2 Ves. & Beam, the Vice Chancellor says, upon a plea found false, the plaintiff is entitled to a decree. In Bogardus v. Trinity Church, 4 Page 178, where issue is taken upon a plea, if the truth of the matters pleaded is established, the suit will bo barred, so far as the plea extends. In Dows v. McMichael, 6 Page 144, the plea was, that D. and D. were members of the firm of B. H. & Co., at the time the note was given, and were jointly liable with the defendants in the suit in the Supreme Court for the payment thereof, as a copartnership debt; that the judgment had been fully paid and satisfied by D., one of the members of D. & D., before the return of the execution issued thereon, and that this suit was prosecuted for the sole benefit of D., who paid the judgment, the complainants having no beneficial interest therein ; and that the amount so paid by D. was no more than his proportion of his debts due from the firm at the time of such payment. The case is very similar to the one before the court. In deciding that ease, the Chancellor said: Ho repleader is awarded in this court upon an immaterial issue joined upon a plea. The court, therefore, never inquires as to the materiality of the allegations contained in the plea in such a case. If the truth of the plea is established by the proofs, the complainant’s bill must be dismissed, although the matters stated in the plea contain, in fact, no valid defence to the suit. On the other hand, if the defendant fails in proving the truth of his plea upon the hearing, the plea must be overruled as false, and the complainant will be entitled to a decree according to his case, as stated in the bill. And the same case is reported in 2 Paige 345. See, also, Story's Eq., J., § 697; Brownsword v. Edwards, 6 Ves. Rep. 247; Meeker v. Marsh, executor of Butler, Saxton’s C. R. 198.

The plea is overruled, and the complainant is entitled to a decree according to the case made by his bill.

Cited in Davison v. Johnson, 1 C. E. Gr. 113.  