
    Moore vs. Thompson.
    Id an'actibn on a -negotiable note by the payee against the maker, a plea in bar, which-aaieunts to an averment or admission of fraud on the part of plaintiff, defendant, and a .stranger, with a view to defeat the rights of the.creditors of the latter, is bad, as tending an. issue foreign to tlie case.
    Error to Circuit 'Cdurt of St. Louis county.
    
      Allen and 'Polk'for Plaintiff' iivPrror.-
    
    That the said second plea -of'defended t-is good in law, and the demurx-er"thereto ought to have 'been overruled by the'.court below. Perkins vs. Parker,' 1 Mass.-.Rep. 117. Ste-. vens vs. .Gaylord, 11 do. 265/ Hull vs; Blake,-13 do. 153. Foster vs/Jones, 15 dd. 185. Attachment- law, Rev/code,, page'77,’ ,at the-.last 'clause .of' the .6 th section, and'at the Nth, section-;
    
      In an action Kin a negotiable note by Stho payee igainst the pinker, a plea in bar, which jimounts toan jivormont or jidmission of fraud on the ■part of plaintiff, defendant ¡and a stranger, with a viewto defeat ¡the rights of the creditors of the latter, is bad, as tending an issue foreign to the case.
    
      
      Bowlin for Defendant'in Error.
    
    The only question that arises in this case is, did the court err in sustaining the demurrer to the plea? Chitty vol. I, 551-2; 555-7; 572-3.
   Opinion of the Court delivered by

Napton Judge.

Thompson sued Moore by petition in debt, on a negotiable note, expressing on its face to be for value received, negotiable and payable without defalcation. Defendant plead, first, nil debit; second, a special plea, the substance of which is as follows: That the note sued on was given in consideration of money left by one Richard W. Carter, and that the said note was made, by the direction of said Carter, in the name of said Thompson, with the intent, by said Carter and Thompson, of secreting the said money and effects from the creditors of said Carter; before the said money became payable, according to the terms of said note, he, the said de‘ fendant, was summoned as garnishee, in an action in the said St. Louis circuit court, commenced by Samuel H. Peake against William C. Hull and Richard W. Carter; and was also summoned as garnishee, in an action, in the same court, brought by William Redmond against said Hull and Carter; all which writs were returnable to the July term of the same court; and the sums, in the said several writs demanded, exceeded the amount of the said promissory note: alt which said several writs and actions were then pending in said court, undetermined.

To this second plea there was a demurrer, and the court rendered judgment for the plaintiff on the demurrer.

That fraud is a subject within the reach of a court of law, as completely and effectually as it could be reached in equity, is understood to be well settled. This plea, however amounts to an admission, or averment of fraud, on the part of Carter, plaintiff, and defendant, with a view to defeat the rights of certain persons who were creditors of Carter. This plea, if issuable at all, would put in issue the existence of debts due by Carter, and the various rights which his creditors might have on his fund. This issue seems to be totally foreign to this case. Let the defendant in this case pay according to his contract, and the creditors of Carter hava their remedy, if they can establish the fraud alledged in this plea. The defendant deserves no special favor or protection, nor the plaintiff either, if the facts stated in this plea be true, but the truth of these averments is not properly triable in this suit. Judgment affirmed.  