THE BANK v. DUGAN. 257

rial and pertinent to the plaintiff's case as set forth in his bill, (d)
But this defendant, after having thus submitted to answer, has
offered a plea, covering the whole ground of his answer, in which
he pleads and relies upon a decree, in another tribunal, upon the
same matter, as a bar to this suit. A plea must always rest upon
that which shews, that the defendant should not be compelled to
answer at all; and therefore an answer to any thing relied on by
way of plea overrules the plea; because, if a defendant answers
to the matter covered by his plea be thereby waives his plea; and,
hence it is an established rule, that where a defendant pleads and
answers to the same case, the answer overrules the plea. Conse-
quently, even supposing this plea to be good and available if it
had stood alone, it is clearly overruled by the answer to which it
has been subjoined, (e)

Whereupon it is Ordered, that the third exception of the plain-
tiffs to the answer of the defendant be overruled; and that all the
other exceptions of the plaintiffs thereto be sustained; and that
the defendant pay unto the plaintiffs all the costs of the said excep-
tions including a solicitor's fee to be taxed by the register, (f)

And it is further Ordered, that the said plea of the defendant be
overruled; and that the defendant pay unto the plaintiffs, the sum
of £5 current money, and the costs of the said plea to be taxed by
the register, and be in contempt until the said sum of money and
costs be fully paid, (g)

And it is further Ordered, that the defendant make a full and
sufficient answer to the bill of complaint on or before the 20th day
of February next.

The defendant answered as required by this order, to which the
plaintiffs having put in a general replication; and commissions
having been issued and returned with evidence taken under them,
the case was, by consent, referred to the auditor, with directions
to state accounts; and notice having been given by advertisement
in the newspapers, to the creditors of James Clarke, deceased, to
file the vouchers of their claims, the auditor made a report accord-
ingly, which was confirmed, &c.

(d) Mazarredo v. Maitland, 3 Mad. 69; Salmon v. Clagett, post.—(c) Cottington
v. Fletcher, 2 Atk. 155; Blacket v. Langlands, Anstr. 14; Forum Rom. 58; James
v. Sadgrove, 1 Cond. Chan. Rep. 3; Hannah K. Chase's Case, 1 Bland, 217.—
</) 1820, £h. 161, J. 8.—(g) 1785, ch. 72, s. 25,