The Court of Errors reversed it, upon the grounds, 1. That the assent of the complainant, the surety, was obtained by taking undue advantage of his situation and necessities, and therefore it was no obstacle to the relief sought: 2. That, admitting his assent to have been duly obtained, yet, as it did not appear that he assented to the release of errors, the assignment could not affect his right to bring a writ of error, nor was his right affected by the release ; for the sureties to a sheriff have a perfect right to use his name in prosecuting a writ of error, a recovery against the sheriff being in effect a recovery against them. 3. The court held, that where an unconscientious advantage has been taken of the situation of a party, although the circumstances do not amount to fraud, in contemplation of law, yet a court of Chancery may relieve.
It was also held, that the plea in bar of a former decree upon the same matters, (see 1 J. C. It. 184, Lyon v. Tallmadge,) must state so much of the bill and answer as to show that the same point was in issue in the former suit ; and it seems to he also held, that even if it had related to *421the same and not, as it was held, to a distinct and independent matter—yet, that to be a complete defence as a bar, it must be pleaded or relied on in the answer as a bar; it is not enough to produce and read it at the hearing.
The court also held in this case, that where two defendants answer separately to a bill, and one refers to and adopts the answer of the other as his own, and a replication is filed to the answer of the latter, but not to that referring to and adopting it, and proofs are taken in the cause, that this is not an admission of the truth of the answer of the party adopting the answer of his co-defendant.
In this case Spencer, J., delivering the opinion of the court, says also: “ This court is bound to decide upon the justice and law of the case, and not merely upon the points raised by counsel.”
Decree reversed accordingly.