
    Columbia, April Term, 1813,
    Elizabeth Allen, Administratrix of B. Allen, deceased, vs. The Executors of James Mayson, deceased.
    
    Fakeow, for the Motion.
    
    Ches well, Contra,
    
    To as-mac-* count, the defendant th^statute of limitations to which piiedfraud Meld that the replication was turem ancTdefec-tire on demurrer.
    Case from Laurens District. Constitutional Court of Appeals, Nov. 1812,
    Assumpsit on an open account. Plea, Statute of Limitations. — Replication, Fraud. — Demurrer to "*■ the replication in judgment for defendant on demurrer. — Motion to set aside this judgment.
    • The action in this case, was upon an open account between Allen and Mayson, during their lives, amounting to ¡8521,74, for sundry articles alleged to pave been. sold and delivered to the deceased May-J son, between the years 1792 and 1795.
    
      Allen and Mayson both died in the year 1799 : and on the 5 th June, 1809, Elizabeth Allen, the present plaintiff, administered on her husband’s estate, and brought this action against the executors of Mayson, for the above account, about fourteen years after the date of the transactions.
    To this suit the executors of Mayson pleaded the statute of limitations 5 and the plaintiff replied spe-'dally, that Mayson, in his life time, acted as the at- „ n torney or agent for Solomon Rutledge, esq. deceased, and sold Jlllen a tract of land, belonging to Mr. Rutledge, for ¿0210 10s. cZd. sterling, to be paid by instalments, for which Allen gave his bond, payable to Mr. Rutledge, dated in May, 1792, but payable as aforesaid. That he, Allen, in the fall of the year following, sold Mayson a waggon and horses for Sl76,25, and hired him a negro at SlGO; and in January, 1795, sold him other articles, amounting to S245,49 ; all which sums he alleged May soil, in his life time, promised to credit on the bond he held in his hands, payable to Mr. Rutledge, and which he afterwards informed the deceased Allen he had done. That in the month of March, 1794, Allen was sued on his bond to Mr. Rutledge, for some of the instalments then due; and judgment was obtained against him, and the land he had purchased was seized and sold under an execution, to pay off Mr. Rutledge’s judgment, which amounted to a little more than was sufficient to discharge the debt, interest and costs. Mayson failed to credit any part of the account above mentioned, on the bond to Mr. Rutledge, according to his promise, which the administratrix pleads was a fraud, practi-sed on Allen in his life time ; and that such fraud never came to the knowledge of Alien, in Ms life time, nor to her knowledge Till some time in January, 1809, when the present suit was brought.
    To this replication the defendant demurred; and the presiding judge (Nott) gave judgment for the defendant on the demurrer. This, therefore, is a ^ t ' ' motion to set aside that judgment.
   Bay, J.

In this case, I am very clearly of opinion that the replication is a departure in pleading from the matter contained in the declaration, which in law is a good cause of demurrer. (Coke Litt. 303. b. 5 Comyn, 433.) A departure is fatal on a general demurrer. 5 Comyn, Tit. Pleading,, 436.

In this case the declaration is on a contract of sale, and the assumpsit is for goods, wares and merchandizes, sold and delivered. The replication so far from supporting the count or declaration, suggests a fraud on the part of Mayson, deceased, and alleges-that the goods were obtained by false promises, which were never, performed. The one states a fair contract of sale; the other alleges fraud and circumvention in getting possession of the goods.

If this had been an action of deceit, in obtaining goods upon false suggestions, the replication might have been consistent with the declaration; they might have stood together; but as they now appear on paper, they are in my opinion incompatible.

But further, it appears from the defendant’s own shewing,that the demand of the present plaintiff could not have been set off against Mr. Rutledges debt, even if he, Allen, had been guilty of no laches in Ms life time, but had offered it, by way of discount, against Mr. Rutledge’s bond. It would have been totally inadmissible, inasmuch as the demands were ■ totally independent of each other. Articles sold and delivered to Mayson, could not have been set off against a bond, due and payable to Mr. Rutledge. The defendant, therefore, had himself to blame, in his life time, in not making his demand against Mayson, and his representative afterwards, in due time. I think, therefore, that the judgment ought to stand.

Justices Brevard, Colcock, Smith, and Nott concurred.  