By the Court,
Savage,Ch. J.The court was right in rejecting the testimony offered; not,however,because it was irrelevant and immaterial, but because the facts offered to be shown were admitted upon the record. The facts were already before the court, by the admission of the defendant; and instead of being irrelevant and immaterial, were decisive of the right of the parties, had they been so pleaded as to have called for a distinct issue upon them. The case of Pinney v. Adm'rs of Johnson, 8 Wendell, 500, is exactly in point,and decides that a judgment so confessed cannot be pleaded to an action against an executor or administrator. The bond upon which the judgment is entered extinguishes the debt against the estate ; the debt becomes the personal debt of the executor or administrator; and in a settlement between the representative and those entitled to the estate, such bond would be a good payment of the debt, if it were a bona fide debt and a bona fide payment. But, as the law stood before the revised statutes, the representative, after a suit commenced against him by one creditor, had no right to prefer and pay another creditor who had not commenced a suit. Where suits were commenced by two creditors,and there were assets to pay only one, the representative might confess judgment in favor of one, and plead that judgment in theother suit. Farther than *637that he could not go, in giving preference after suit brought. He would have no right, for instance, after suit brought by one creditor,to pay another. A plea of such a payment would be bad. The bond in this case was, at most, such a payment.
The only difficulty here arises from the form of pleading. When the defendant pleaded the judgment, the plaintiffs should simply have replied that it was confessed by the executrix upon her own bond since the commencement of the present suit. That would have been a perfect answer to the plea. The plaintiffs did so reply; but they also included in their replication another answer, to wit, that the judgment was obtained by fraud. The replication was therefore double. Either answer stated in the replication was a good answer to the plea. The defendant’s attorney might have demurred specially, and only specially, to the replication for duplicity. He did not choose to do so; he would have gained no advantage to his client by it. He had a right, to rejoin, as he did, by taking issue upon the fraud alone. The plaintiffs counsel insists that the defendant should have answered all the facts in the replication. If that be admitted, it does not prove that the remedy is by writ of error ; if the rejoinder did not sufficiently answer the replication, the plaintiffs should have demurred. It is manifest that the first fault was committed by the plaintiffs in replying double. This is against the rules of good pleading, and should not be done without leave of the court, and then by two distinct replications. It is true, that duplicity must be taken advantage of by a special and not by a general demurrer; but it is perfectly consistent with good pleading, to do as the defendant’s attorney did in this case—to answer but one of the allegations of the double pleading. It was the fault of the plaintiffs’ attorney to give him that advantage; he should have presented the fact of the confession of the judgment in such a manner that the defendant’s attorney would have been compelled to answer it.
It is manifest, however, that the defendant has succeeded, with a fact admitted on the record which is conclusive against her. It is apparent, therefore, that justice has not been done, though the jury could have found no other verdict than what *638Was found; and the record does not show that the court were asked to render judgment for the plaintiffs, or put them in a situation to recover a judgment which would be effectual. The question then is, what-is the plaintiffs’ remedy ? Should the court below have given judgment for the plaintiffs, notwithstanding the verdict, or should they have awarded a re-pleader 1 Where a plea confesses the action, and does not sufficiently avoid it, judgment shall be given on the confession, without regard to a verdict for the defendant. This is called judgment non, obstanteveredicto. Arepleader is awarded where the cause has been tried upon an immaterial issue. The issue is immaterial where a material allegation in the pleadings is not traversed, but an issue is taken on some point which, though found by the verdict of the jury, will not determine the merits of the case, and would leave the court at a loss for which of the parties to give judgment. 2 Dunlap, 690. The issue in the case now before the court would have been very material, if found for the plaintiff; but being found for the defendant, it determines nothing. How then stands the fact before, the court, asadmitted and proved 1 It is, that the judgment which the defendant pleaded was entered by confession upon a bond and warrant, executed by herself since the commencement of this suit, but without any fraudulent intent. Now take this statement; is it any reason why the plaintiffs should not recover the debt due to them ? The case is perfectly clear; and, assuming the facts as admitted by the defendant’s rejoinder, there is no way of pleading those facts to make a bar against the plaintiff’s claim. This is a case, therefore, where it is apparent to the court, upon the defendant’s own showing, that in any way of putting it, she can have no merits. 2 Dunlap, 692. It is therefore a proper case for a judgment for the plaintiff, notwithstanding the verdict.
The judgment should be reversed, and the court below advised to give judgment as above.