#### Lawrence *v.*Pool.

A plea to a bill charging fraud in procuring a surrogate’s decree, which merely sets up the decree and alleges that all the parties in interest had notice of the pro* ceedings, without denying the fraud, is bad.

In equity, in the argument of a plea, the defendant cannot object to the sufficiency of the bill.

(Before Duer, Mason and Campbell, J. J.)

May 23 ;

June 4, 1849.

The bill was filed by the complainant as a creditor of the estate of Isaac Lawrence, deceased, in behalf of himself and such other creditors as should choose to come in and contribute to the expenses of the suit. The object of the bill was to recover back a sum of money received by the defendant, out of a fund in the hands of the surrogate of the county of New York, created by the sale of I. Lawrence’s real estate, and to restrain any further receipts. The bill charged that the order of the surrogate declaring the defendant a creditor, under which he received the money claimed, was obtained by him by a variety of fraudulent representations and suppressions—that there was nothing due to the defendant, but that he owed the estate; and that the estate was insufficient to pay all the just debts. Some other matters are stated in the opinion of the court.

The defendant interposed a plea in bar, setting forth the proceedings before the surrogate, upon his claim against the estate. *541That it was referred by the defendant and the administrator of I. Lawrence to three referees approved by the surrogate, and the reference made a rule of the supreme court. That the referees reported nearly 114,000 due to the defendant, and their report was confirmed by the supreme court, and a judgment rendered thereon. That the surrogate afterwards, on due notice &c. to all interested, proceeded to ascertain the debts against I. Lawrence, and decreed the defendant’s to be a valid and subsisting debt to the amount of the judgment, and directed distribution to be made rateably, under which decree the defendant received the money in question.

*L. B. Woodruff*and *G. Wood,*for the defendant.

*W. B. Lawrence,*for the complainant.

By the Court. Mason, J.

The well established rule at law, that upon the argument of a demurrer to any pleading the previous pleading of the party demurring may be shown to be bad, has never been adopted in equity, and the party pleading to a bill is not allowed to sustain his plea by proving the bill to be defective. *(Sperry*v. *Miller,*2 Barb. Ch. R. 632.) It is unnecessary therefore to express an opinion upon the objections taken by the defendant’s counsel to the sufficiency of the bill in this case. The plea must stand or fall upon its own merits.

The bill was filed to set aside a decree of the surrogate of the county of New York, in favor of the defendant, against the estate of Isaac Lawrence, deceased, which is alleged to have been obtained by false and fraudulent representations, and fraudulent suppressions of important facts. It specifies a number of circumstances in which the fraud is said to consist, and also alleges that all the facts of the case and the fraudulent nature of the transaction, were unknown to the administrator of Isaac Lawrence, and had been discovered by the plaintiff but a short time previous to the filing of the bill.

The plea merely sets up the decree without any denial of the fraud, or any other allegation whatever, except that all parties *542interested had notice at the time the decree was rendered; and it is not accompanied by an answer.

The rule in cases of this kind is thus stated by Chancellor Walworth : “ Where fraud or other circumstances are charged for the purpose of avoiding a release, (and the same is true with regard to a decreé or judgment) the defendant pleading, must by proper negative averments in his plea, deny the allegations of fraud &c., and must support his plea by a full answer and discovery as to every equitable circumstance charged in the bill, to avoid the bar. *(Bolton*v. *Gardner,*3 Paige 273.) See also Story’s Equity Pleading, § 671, 681.

The plea must therefore be overruled, and the defendant must answer the bill and pay the costs of the hearing within -- days of the service of the order.