8 Paige Ch. 275 | New York Court of Chancery | 1840
I am satisfied from the case as made by the bill itself, that this is not a case for a simple bill of revivor, against one of the original executors of N. Evertson who was not made a party to the former suit. If the estate of N. Evertson must be represented in these further proceedings, (as it probably must, to reach that part of the mortgages which had not been collected at the time of the decree,) the surviving executor upon whom the interest assigned to her has devolved, if it remained in her hands when she died, must be brought before the court by an original bill in the nature of a bill of revivor and supplement. And as Mrs. Evertson had also made herself personally liable for the funds belonging to the complainants, which she received, it may be proper also to make her personal representatives parties. And if the suggestion in the plea is correct, That she had paid over the whole fund to the children and distributees of N. Evertson before her death, I am inclined to think it would be proper to make them parties also, to compel them to refund. Upon these questions, however, I express no definite opinion.
But the defendant has mistaken his defence. As the bill showed no title to revive against him, in this form, his proper course was to demur. And in this court a plea cannot be substituted in place of a demurrer. (Billing v. Flight, 1 Mad. Rep. 230. Cown v. Price, 1 Bibb’s Rep. 175. Story’s Eq. Pl. 504, § 660.) Here no new fact is brought forward by the plea which in itself constitutes a
The costs follow of course upon the overruling of the plea.