
    Henry Burditt versus Henry Grew, Executor.
    The statute of 1791, c. 28, limiting suits against executors and administrators to four years, may be pleaded in bar to a suit in equity as well as a suit at law.
    A and B were partners. A died. B, who settled the affairs of the partnership, took a part of the stock to himself, and gave notes to the executes of the other partner, and made several payments to them, and paid all the notes but one, on which the surviving executor brought a suit against B. B then brought a bill in equity against the executor, praying for an account of the partnership business, stating various particulars in the accounts with A, by which he B was injured, and that if the accounts were, fairly settled, nothing would be due to the executor on the note, but a balance would be due to B from the executor, and praying an injunction against the suit at law. The defendant demurred to so much of the bill as did not relate to the partnership dealings and the defendant’s capacity as executor, and as to the residue of the bill, pleaded the statute of limitation of four years. The Court sustained the demurrer, and held, that the payments to the executors did not show any ground for equitable interference unconnected with the partnership transactions, and that the suit in equity as to them was barred by the statute.
    In pleading matters of substance, the same strictness is required in equity as at law.
    In pleading the statute of limitations respecting suits against executors and admin istrators, it is sufficient for the defendant to allege that he posted up notifications of Ins appointment “ in public places in the city of B,” without specifying the places.
    It is not necessary to set forth in such a plea to a bill in equity, that such city was the place of the testator’s residence at the time of his death, where that fact appears in the bill itself.
    It is sufficient in such a plea to aver, that the executors gave ,e bonds according to law,” without saying that they were given to the judge of probate.
    Ti-iis was a bill in equity. The bill sets forth, that by an indenture made between the complainant and John Grew, “ late of Boston,” the defendant’s testator, on January 1st, 1818, the complainant and John Grew entered into partnership for fi.ve years in the hardware business. The bill sets out the terms of the indenture, one of which was, that at the dissolution of the partnership, Grew or his representative should have the power to sell the stock and settle.the business ; and the partnership subsisted until it was dissolved by Grew’s death on September 25th, 1821. The bill further states, that when the indenture was made, the complainant was little more than twenty-one years old, and had never transacted any mercantile business of consequence except as clerk to Grew; and that Grew brought into the partnership his old stock, which consisted in a great part of shop-worn and unsaleable articles, and charged it to the partnership at a higher price than it was worth ; and that the complainant had also been injured by the mode in which the annual accounts of stock were taken and inters*, charged ; and that if the business was fairly settled, a balance would be due to the complainant; but that no final account has ever been settled between him and Grew or Grew’s representatives ; that after Grew’s death, the defendant and Henry Wainwright, since deceased, were executors of Grew’s will; that the complainant wished them to settle the partnership business, but that they declined, and requested him to settle it and agreed to allow him a compensation for it; that he thereupon proceeded to sell the stock and collect the debts of the partnership ; and that in August, 1822, during Wainwright’s life, the complainant took a certain quantity of the joint effects, for which he gave three notes for 2233 dollars 33 cents each, to the executors, and on September 10th, 1824, another note for 1200 dollars, and on October 23d, 1824, another note for 973 dollars 82 cents ; all which notes the complainant avers that he has paid, except one of those for 2223 dollars 33 cents, upon which the present defendant as executor, since Wainwright’s decease, has sued the complainant, which suit he alleges to be still pending in this Court. The complainant further alleges, that he has paid large sums to the executors ; and that on a fair settlement it will appear that they have been overpaid, and that no part of the note ought to be paid to Henry Grew as executor ; but that he is indebted as executor to the complainant. The bill alleges a refusal on the part of the executors, and the survivor of them, to settle with the complainant. The prayer of the bill is, that an account may be taken of all the partnership dealings, and that the defendant may be held to account for all the moneys received by John Grew and by the executors or either of them since his decease ; and that the defendant may be restrained by injunction from all further proceedings in the suit at law on t^e note.
    The defendant demurred to so much of the bill “ as does not relate to his character and capacity of executor &c. as aforesaid and to the said copartnership dealings,” alleging for causes of demurrer, 1. That it is apparent from the complainant’s own showing, that he has no ground of complaint, for he does not pretend that there was ever any controversy in relatian to the payments and receipts mentioned in the bill: 2. That if there is such ground of complaint, the complainant has a complete remedy at law.
    
      larch 31st, *
    As to the residue of the bill, “and the several allegations therein contained not herein before demurred to,” the defendant pleaded the statute of 1791, c. 28, limiting suits against executors and administrators to the term of four years, from the time of their accepting the trust, provided they give notice of their appointment according to law. He averred that he and Wainwright, at a Probate Court held in Boston, October 8, 1821, were “duly appointed executors of the last will and testament of John Grew then late of said Boston, merchant, deceased, and then and there duly qualified themselves as such executors by giving bonds according to law, and did thereaflerwards within three months from the day last aforesaid give public notice of their said appointment and acceptance of said trust according to law, by posting up notifications of their said appointment and having taken upon themselves that trust, at public places in said city of Boston; ” also setting forth a publication in the Boston Gazette, and averring that four years had elapsed since the defendant accepted the trust of executor.
    
      Rand and Morse, for the plaintiff.
    The same strictness is required in pleadings in equity as at law. A plea and a demur rer cannot be used together in equity, any more than at law ; and besides, it does not distinctly appear what part of the bill is pleaded to and what part is demurred to. 1 Montag. Eq. PI. 102, 122; Beames on Pleas in Eq. 44. The plea is defective in not stating specifically a compliance with the statute provisions. Archb. PI. 169; Willington v. Stearns, 1 Pick. 497; Allein v. Randall, Yelv. 49, 50. Instead of saying “ giving bonds according to law,” the plea should have stated to whom they were given. The plea is also defective in merely saying that the executors posted up notices at public places ; the places themselves should have been specified. The plea does not show that the notices were posted up in the place where the deceased last dwelt, but only that they were posted up in Boston. Though the plea avers a publication in the Boston Gazette, it does not state that the Court directed that mode of publication.
    
      April 2d, 1829.
    
      Cooke, for the defendant,
    in support of the plea, cited Brown v. Anderson, 13 Mass. R. 201; Dawes v. Shed, 15 Mass. R. 6; Emerson v. Thompson, 16 Mass. R. 432; Eden on Injunc. 103. The limitation in the statute reaches suits in equity. Bond v. Hopkins, 1 Sch. & Lefr. 413; Webster v. Webster, 10 Ves. 93; Montag. Pl. 26, 27, notes; Willis cn Pl. 562. It would be a great hardship to oblige the executors to open their account.
   Wilde J.

delivered the opinion of the Court. That part of the bill demurred to, relating to the contract and proceedings since the dissolution of the partnership, cannot be sustained, unless as being connected incidentally and consequentially with the concerns of the copartnership. For in the first place, this part of the bill presents no case for relief in equity, or otherwise. It is not averred that the contracts of sale were void, or unfairly obtained, nor is any fact alleged tending to impugn them. Besides, we have no jurisdiction over the subject-matter of this part of the bill, unless it can be connected with the other part of the bill relating to the dealings of the co-partners ; otherwise it stands on the same footing as if the sales had been made to a stranger.

The only question then is, whether the other part of the bill is barred by the statute of limitations.

It is admitted that it is so barred, if the statute is well pleaded and sufficient matter is set forth in the plea, to show that due notice was given by the executors of their acceptance of their trust, according to the statute.

It is true, that in pleading, the same strictness is required m equity as at law ; at least in matter of substance. Mitf. 232. But we do not find any defect in the plea, either substantial or formal, which would authorize us to set it aside. The principal objection is to the notice. The plea avers that notice was given by the executors according to law, by posting up notifications of their appointment at public places in this city, without however designating the particular places where the notifications were posted. We do not recommend this form of pleading, but nevertheless we cannot say it is fatally defective. The same objection was insisted on in the case of Sewall v. Valentine, 6 Pick. 276, and was overruled. Notice is averred in the words of the statute, and the averment is direct and positive. The plaintiff might have replied and traversed the fact, in which case the defendant would have been put to the proof of the notice with all its attending circumstances. The only possible use of designating the particular places of posting, is to give notice to the other party, that he might be" the better prepared to contest the proof to be offered in support of the plea. But the Court have power to guard against the effects of surprise, and will exercise it on every proper occasion.

Then it is objected, that it is not averred that the deceased had his domicil at Boston at the time of his decease. But this fact sufficiently appears by the bill, and therefore such an averment is not necessary. The deceased is styled, late of Boston, &c. and by the facts set forth in the bill, it appears that he continued doing business here until his death.

Nor do we think the objection, that there is no direct averment that the bond was given to the judge of probate, of any avail. To aver, as is done in the plea, that the executors gave bonds according to law, is, we apprehend, sufficient.

There seems to be little reason for insisting on these niceties, as the defendant may rely on the same bar by way of answer, in which all these supposed, defects might no doubt be removed ; and the defendant,- at the same time, might avail himself of the general statute of limitations. We think, however, that the plea, in the form pleaded, is well enough, and that it is a bar as to all the transactions and dealings-between the partners; and against all claims against the executor of Grew in his character as executor.

That part of the bill therefore which • relates to the copannership cannot be sustained, and as the residue of the bill is clearly insufficient, the whole bill must be dismissed, 
      
       See Bangs v. Hall, 2 Pick. (2nd ed.) 372, note 1 and cases cited; Farnam v. Brooks, 9 Pick. 243; Johnson v. Ames, 11 Pick. 182; Andrews v. Sparhawk, 13 Pick. 400.
     