
    Ira M. Harrison, administrator, v. Joseph T. Farrington.
    If a bill for an account filed by an administrator against the surviving partner of his intestate anticipates the defence of an account stated and charges fraud therein, the defendant, if he sets up an account stated, must also traverse the alleged fraud.
    Bill for relief. On plea and demurrer thereto.
    
      Mr. J. W. Taylor, for demurrant.
    
      Mr. 3. C. Mount, contra.
    
   The Chancellor.

The bill prays an account of the dealings and transactions between the defendant and the complainant’s intestate (they were partners in business) during the lifetime of the latter, and after his death up to the 1st of May, 1876, and that the defendant may be decreed to pay the amount due. It states that the complainant applied to the defendant for a statement of the assets and liabilities of the firm, and that the latter gave him one which showed a balance in favor of his intestate’s estate, and that confiding in the defendant’s representations, which he says were false, in certain important particulars which he specifies, he accepted that sum; whereas, he insists, he ought to have had a much larger one. The defendant has pleaded an account stated and has answered in support of the plea. The complainant has demurred to the plea.

The bill, it will have been seen, anticipates the defence of an account stated, and to it replies affirmatively by charging fraud. The defendant, therefore, if he wishes to plead an account stated, must not only set up the account but must traverse also, in the plea, the anticipatory replication thereto which the bill contains, that is, the charge of fraud. Such a plea is called an anomalous one because it is partly affirmative and partly negative — affirmative in setting up the account and negative in denying the fraud. Story Eq. Pl. § 802; Lang. Eq. Pl. § 101. The plea under consideration does not negative the fraud. It avers that the account was, according to the best of the defendant’s knowledge, just and true, and that the defendant furnished the complainant with facilities for examination into the accounts; but it does not traverse the charges of fraud or any of them. It must be overruled, with costs, but leave will be given to amend, provided it be done in ten days from the time of entering the order on this opinion.  