MILLEDGE

one of the qualified and acting executors on the said MILLIGAN will, or by his intermarriage with Judith Galphin, one of the devisees and legatees under the will of the said George.

"And this defendant further avers, that Thomas Galphin and John Parkinson, charged and stated to be two of the surviving copartners of Galphin, Holmes & Co. and David Holmes & Co. of which this defendant knoweth not, and said Thomas Galphin, being now the only acting and qualified executor of the last will and testament of, the said George Galphin, are, and this defendant is ready to show, that they must be in possession of considerable real and personal estate, derived from the estate of the said George Galphin, deceased; that they are the proper persons liable and interested to contest, and who can with safety contest, the complainant's demands, if any he has, and the relief prayed in the said bill.

"And this defendant doth further aver, that the debt or demand of the complainant, if any doth exist, originated in the state of South-Carolina; that all material, necessary, and indispensable and requisite parties, to wit, the said Thomas Galphin and John Parkinson, and the executors, administrators or legal representatives of William Dunbar, live, and notoriously and openly reside, in the state of South-Carolina, and in possession of estates, real and personal, sufficient to pay the complainant's demand, if any he has, and which estates and property are more particularly liable to the said demand, if any he has; and that the said parties are also amenable and compellable to appear to any suit or bill brought against them by the said complainant, for his said demand, if any he has, in the state aforesaid. All of which facts are in the knowledge of the complainant, and to him well known, before the filing of his said bill, for that the complainant also lives and resides in the state of South-Carolina; that this defendant is an entire stranger to, and ignorant of the merits and justice of the claim set up by the complainant, not being named as executrix in the will of the said George Galphin, or ever having intermeddled with the concerns of the said estate, or any ways

AND WIFE.

V.

MILLIOAN interested in the copartnership aforesaid. All which MILLEDGE matters this defendant doth aver and plead, in bar of the complainant's said bill, and of his pretended demands, for which he seeks to be relieved by his said bill. And this defendant prays to be hence dismissed, with her reasonable costs, in this behalf most wrongfully sustained."

This plea was sworn to, before a justice of peace.

The plea of John Milledge was the same, in substance, as that of his wife.

There was also a joint and several answer of Milledge and wife, which states no other facts than the following: viz. "That there never did exist any secret or special trust, promise, covenant, or understanding, between these defendants and the executors of George Galphin, the elder, deceased, as charged in the bill of complaint, or did these defendants, or either of them, ever give any bond of indemnity, or other security whatever, to be accountable to Thomas Galphin, or John Parkinson, or any or either of the executors of the said George, for any property, real or personal, which might have come into the possession, or held by either of these defendants. That there does not now exist any secret or special trust, promise, covenant or understanding between these defendants and the executors aforesaid. And these defendants do, jointly and severally, deny all manner of unlawful combination," &c. "without that, that any other matter or thing in the said bill of complaint contained, material or necessary for these defendants to answer unto, not herein answered unto. All which matters and things these defendants are ready to aver and maintain," &c.

At May term, 1803, of the circuit court, holden by his honor, Judge Moore, the only entries on the transcript of the record which came up, are, as follows: "Bill and amended bill." "Plea and answers.' "On

argument the plea sustained." There is no entry of a demurrer, or motion, or of any other proceeding, except the continuances, after filing the pleas and answers, until the May term, 1803.

V.

At May term, 1804, of the circuit court, holden MILLIGAN by his honor, Judge Johnson, the following decree was made.

"This cause came on to be heard this 14th day of May, in the year of our Lord, 1804, upon the bill and exhibits, and the pleas and answers of the defendants; whereupon, it appearing that in the term of May, 1803, before the honourable Alfred Moore, one of the judges of the said court, the cause was heard upon the bill and the pleas, and that after argument, it was adjudged by the court, at the term of May, 1803, that the said plea be sustained; and it appears that the complainant hath not replied to the said plea. It is therefore ordered and decreed, that the bill of complaint be dismissed, in pursuance and conformity to the decision of the court at the said term, upon the said plea, the same appearing to the court, to be conclusive on the merits of the complainant's bill. Dated at Savannah, the day and year before

written. WILLIAM JOHNSON, Jun.

The complainant sued out his writ of error, and assigned for error,

1st. That by the said decree it is adjudged and decreed, that the plea in bar aforesaid, and the matters therein contained, are sufficient to debar the complainant from the discovery and relief sought after by his said bill of complaint, and are conclusive on the merits thereof, and that, therefore, the said plea should be sustained as a valid and sufficient answer to the bill of the complainant. Whereas, the said plea is altogether irrelevant and insufficient, and contains no matter, which, in law or equity, ought to bar the discovery and relief sought after by the bill aforesaid.

2d. That by the said decree, it is adjudged that the bill be dismissed, whereas, by the law of the land, and the rules of equity, a decree ought to have been made in favour of the complainant, for want of a sufVol. III.

Gg

MILLEDGE

AND WIFE.

MILLIGAN ficient answer upon the merits of the said bill, as to the relief prayed thereby.

V.

MILLEDGE

AND WIFE.

Key, for plaintiff in error, contended, that the pleas in bar were insufficient and informal, and contained matter not proper for a plea.

The defence proper for a plea, must be such as reduces the cause to a particular point, and from thence creates a bar to the suit and is to save the parties expense in examination. It is not every good defence in equity, that is likewise good as a plea; for where the defence consists of a variety of circumstances, there is use of a plea; the examination must still be at large; and the effect of allowing such a plea, will be, that the court will give their judgment on the circumstances of the case, before they are made out by proof. 1 Atk. 54. Chapman v. Turner.

A plea cannot be a mere denial of facts charged in the bill; for such matter is only proper for an answer. But such a plea may be permitted to stand for au answer, with leave to except to its insufficiency. 1 Brown, Ch. Ca. 408, 409, 410.

The plea in this case sets forth five several distinct and independent matters, each of which is a denial of some allegation in the bill, and is, therefore, not proper for a plea, but for an answer. Nor do they go to make up one defence.

The most that can be said of the plea is, that it shows that there are other persons who ought to be made parties in the cause. Considered in this view, it may be supposed, perhaps, as requiring that Thomas Galphin, J. Parkinson, the representatives of David Holmes, and those of W. Dunbar, should have been made parties.

There can be no ground of requiring the represenatives of Holmes to be made parties, because we seek relief only against the estate of G. Galphin, the elder, and not against that of Holmes. As to the representatives of Dunbar, even if it be true that he qualified

V.

MILLEDGE

AND WIFE.

as executor, yet we are not bound to proceed against MILL. LG AN them, as there is an executor surviving. We ask no relief against Parkinson, and, therefore, we need not make him a party. And as to Thomas Galphin, he is expressly alleged in the bill, and admitted in the plea, to be out of the jurisdiction of the court, and therefore, we were not bound to make him a party. This is expressly laid down by Mitford, in his treatise of pleading, p. 93, who says, "if a want of proper parties is not apparent on the bill, a defendant may plead it; and a plea of this nature goes both to the discovery and the relief. But where a sufficient reason is suggested by the bill, for not making the necessary party ; as where a personal representative is a necessary party, and the bill states that the representation is in contest, in the ecclesiastical court; or where a necessary party is resident abroad, out of the jurisdiction of the court, and the bill charges that fact; or where the bill seeks a discovery of the necessary parties, a plea for want of 'parties will not be allowed. A plea for want of parties to a bill, for a discovery merely, will not hold; for the plaintiff in that case seeks no decree." Prec. in Ch. 83. Cowslad v. Cely. 2 Atk. § 10. Darwent v. Walton.

As far as our bill seeks for relief, we could recover at law, against the defendants, as executors in their own wrong. It is true, that in equity, an executor de son tort is not known, but whenever a person would, at law, be executor de son tort, he will, in equity, be considered as a trustee for the creditors.

Real estate is in Georgia considered as assets. (See the case of Telfair v. Stead's executors, in this court at this term, ante, vol. 2, 407.)

The bill charges that the defendants have assets.

All the facts charged in the bill, and not denied in the plea or answer, are to be considered as admitted.

The bill also charges, that there are no assets in South Carolina.

We were, therefore, obliged to go against the assets in Georgia.