Fish vs. Miller, 5 Paige Ch. 26

The Chancellor. The complainant having waived an answer on oath, no answer or discovery was necessary in support of the plea, which covert the whole reí if sought by the bill. I am inclined to think, however, that by putting in this unnecessary answer, the defendant has overruled his plea; as the answer of itself, independent of the plea, appears to be a good defence to the whole action, although it might not have been a full answer, so far as relates to the discovery sought by the bill, if the answer on oath had not beén waived.

If the defendant has fully accounted with the complainant, and delivered over all the property and effects which belonged to him, he is not entitled to a new account, without showing some fraud or error in the former account; and none such is charged in the bill, whether this release was absolutely delivered, as alleged by the defendant, or otherwise. The defendant cannot be permitted to set up one valid defence, to the whole relief sought by the bill, in the form of a plea, and another full defence by the answer.

Again; the plea appears to be defective in not averring that the defendant had accounted with the complainant and paid him the balance of such account. This is expressly denied in the bill; and is therefore an impeachment of the whole consideration of the release. It is true the release recites, as facts, that such account' had been rendered and such payment made; and if the facts were properly put in issue, and it should turn out upon the proofs that the release was absolutely delivered, the release itself would be prima facie evidence of such facts.

But the defendant should have distinctly averred these facts in his plea, so that upon a replication to the plea, the complainant might have had an opportunity of showing that the allegations in his bill were true, notwithstanding these recitals in the release. Upon a replication to a plea, nothing is in issue except what is distinctly averred in the plea; and if that is established at the hearing, the plea is an absolute bar to so much of the bill as it professes to..cover.

It is very evident that upon a replication to this plea the truth of these recitals would not be put in issue; but only the fact that the release contained such recitals. And under such an issue, the complainant would not be permitted to introduce evidence to show that the recitals were false. (See Allen v. Randolph, 4 John. Ch. Rep. 698 ; Parker v. Alcock, 1 Young & Jervis, 432; Mitf. Pl., Edwards’ ed. 262, 323. The decree of the vice chancellor is affirmed, with costs; and the proceedings are remitted.