
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1813.
    Elizabeth Allen, Administratrix of B. Allen, v. James Mayson’s Executors.
    To assumpsit on account, the defendant pleaded the statute of limitations, to which plaintiff replied fraud. Held, that the replication was a departure in pleading, and defective on demurrer.
    Assumpsit on an open account. Tried in Laurens district. Plea, -statute of limitations. Replication, fraud. Demurrer to the replication in judgment for defendant on demurrer. Motion to set aside this judgment.
    v The action in this case was upon an open account between Allen and Mayson, during their lives, amounting to $521,74, for sundry articles alleged to have been sold and delivered to the deceased, Mayson, between the years 1792 and 1795.
    Allen and Mayson both died in the year 1799 : and on the 5th 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 ; and the plaintiff replied specially, that Mayson, in his life time, acted as the attorney, or agent, for Solomon Rutledge, Esq. deceased, and sold Allen a tract of land belonging to Mr. Rutledge, for £210 10s. 2d. sterling, to be paid by instal-ments, 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 wagon and horses for $176,25, and hired him a negro at $100 ; and in January, 1795, sold him other articles, amounting to $245,49 ; all which sums he alleged Mayson, 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, ar>d 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, prac-l*sec* on i“ his life time ; and that such fraud never came to the knowledge of Allen, in his life time, nor to her knowledge until 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 motion to set aside that judgment.
    FARROW, for the motion. Creswei/l, contra.
    
   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. Co. 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 obtatned 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 upon1 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. Rutledge’s debt, even if he, Allen, had been guilty of no laches in his life time, but had offered it, by way of discount* against Mr. Rutledge’s bond. It would have been totally inad.-missible, 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 judgement ought to stand.

Brevard, Colcock, Smith, and Nott, Js., concurred-  