STORY, Circuit Justice.
It does not appear to me, that the learned counsel need trouble themselves to argue at large the point, as to the sufficiency of the plea. I will merely intimate the difficulties attending it; and will then hear them, if there be any remaining doubts on their minds. I am the more ready to do this, because proceedings and pleadings in equity are not as yet familiarly known to the profession in this district; and, therefore, it may not be useless also to suggest, that the bill itself seems to require amendments and alterations before it can be held valid as tlxe ground for a decree.
First, then, as to the plea. It is a dry,’ naked plea of the statute of limitations, without any averments, negativing the special matters set up in. the bill, which, if true, would avoid the operation of the statute. I take it to be clear, that the plea should contain in itself such averments; and the answer in support thereof should also contain a full discovery of the matters so set up in avoidance of the bar. It is not sufficient for the answer alone to negative such matters; for it is mere matter of discovery; but the plea -should in itself, if true, contain a complete bar. This will be found stated at large by Cord Redesdale, in his excellent work on Equity Pleadings. Mitf. Eq. Pl. (by Jeremy, 4th Ed.) 239-243; Story. Eq. PI. §§ 680-687, 754. The same doctrine was affirmed by Lord Cottenham. in Foley v. Hill (3 Mylne & C. 475), according to my understanding of the true import of his lordship’s judgment.
Now, in the present case, there are various averments in the bill, which touch the validity of the bar of the statute. First, it states, that there were fraudulent representations made to the original administratrix of a partnership between the intestate and the defendant. which had no existence; secondly, a 'raudulent sale made by the defendant of the prig Emmeline; thirdly, negligence and misconduct in the sale of the ship Horatio; and fourthly, the bill alleges certain declarations and admissions of the defendant within six months, whicli acknowledge, that he still has assets of the intestate in his hands. None of these allegations are in the slightest degree alluded to. or negatived in the plea. And, perhaps, it will also be found, that a single plea of the statute, with a negative of all these matters, would not be valid on account of tlieir various nature; but that there should be distinct pleas and distinct answers severally to each of them, since they involve, or may involve, very different equities, as well as very different proofs.
Again. The plea is general, that the action accrued more than six years ago. But to whom it accrued, is not said. Now. the original administratrix died in 1826; and the present administrator de bonis non was not appointed until 1834, within six years of the filing of the plea. It is not said, that the cause of action accrued six years before the original administratrix died, or six years before the present bill was brought.
Again. The answer covers much more matter, than is strictly applicable to the mere [1187]*1187-support of the plea. AVhen the answer includes more than is necessary for such a purpose, it overrules the plea, and must so he held at the argument. A plea states some ground, why the defendant should not go into a full defence. Mitf. Eq. Pl. (by Jeremy) 298, 299; Story, Eq. PI. §§ 688, 693. But if the answer goes into a full defence, that necessarily overrules it. In the present case, the answer, among other things, not strictly responsive to the matters, charged by the bill to repel the statute of limitations,'goes on to set up a distinct defence of an account settled between ■ the original administratrix and the defendant, in 1812, which it insists was conclusive, as to some of the matters, in lespeet to which relief is sought.
Upon these grounds, it seems to me, that the plea ought to be overruled. But there are also objections to the allegations of the bill in its present structure. 1 suggest some of them for the consideration of counsel.
The bill is brought by an administrator de bonis non against the defendant for an account of the intestate's estate. (1) For moneys and property of the intestate, received in his lifetime. (2) For moneys and property of the intestate, received by him as agent of the former administratrix in her lifetime. The bill also makes a distinct claim for losses occasioned to the estate and to the administra-trix by his negligence and misconduct in his agency. The intestate died in 1811. Administration was taken by his widow in 1812. The administratrix died in 1820. The present plaintiff was appointed administrator de bonis non in 1894. The bill is. therefore, brought for an account after a great lapse of time; and, as courts of equity never entertain any bills of this sort, where there has been negligence or laches in the party, it is incumbent upon the plaintiff to set up in his bill, the reasons, why the bill was not brought at an earlier period, in order to repel the presumption of laches or unreasonable delay. If the ease turns upon fraud, mistake, concealment, or misrepresentation, the bill should state, what, in particular, the fraud, mistake, concealment, or misrej)resentation was. and how, and in what manner it was perpetrated. General allegations, that there has been fraud, or mistake, or'concealment, or misrepresentations, are too loose for purposes of this sort. The charges must be reasonable, definite, and certain as to time, and occasion, and subject matter. And especially must there be distinct averments of the time, when the fraud, mistake, concealment, or misrepresentation was discovered, and how discovered, and what the discovery is; so that the court may clearly see, whether, by the exercise of ordinary diligence, the discovery might not have been before made. For, if by such diligence the discovery might have been before made, the bill has no foundation on which it can stand in equity, on account of the laches.
Now, for all purposes of this sort, the bill is exceedingly loose, and vague, and defective. (1) The bill asserts a claim against the defendant for the brig Emmeline, sold after the death of the intestate by the defendant, belonging in whole or in part to the intestate, but which, it alleges, the defendant converted wholly to his own use. The time of the sale is not mentioned, nor whether under the agency, or with the consent of the adminis-tratrix. or not, or whether sold in her lifetime, or not. And yet it is almost a necessary inference, that the sale was in her lifetime, and with her consent; and no reason is assigned, why she did not receive, the-, proceeds, or such as belonged to the intestate. (2) The bill also charges, that.the defendant had received property of the intestate, under a false allegation of partnership with the intestate, and had not accounted for it. It is not stated with certainty, when the property was received; but it must have been in the time of the administratrix. It is not stated, that the administratrix had not the full means to inquire into, and to ascertain all the facts in her lifetime. Nor is it formally stated, in positive terms, that there was .a fraudulent concealment of any particular facts; nor when the discovery, if any, was first made of the real facts: nor how, or in what manner, or by whom. (8) The bill also charges, that . notes of the intestate, to the amount of $11,-000, were delivered up by the administratrix to the defendant, without payment or' consideration. upon fraudulent representations.
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STORY, Circuit Justice.
It does not appear to me, that the learned counsel need trouble themselves to argue at large the point, as to the sufficiency of the plea. I will merely intimate the difficulties attending it; and will then hear them, if there be any remaining doubts on their minds. I am the more ready to do this, because proceedings and pleadings in equity are not as yet familiarly known to the profession in this district; and, therefore, it may not be useless also to suggest, that the bill itself seems to require amendments and alterations before it can be held valid as tlxe ground for a decree.
First, then, as to the plea. It is a dry,’ naked plea of the statute of limitations, without any averments, negativing the special matters set up in. the bill, which, if true, would avoid the operation of the statute. I take it to be clear, that the plea should contain in itself such averments; and the answer in support thereof should also contain a full discovery of the matters so set up in avoidance of the bar. It is not sufficient for the answer alone to negative such matters; for it is mere matter of discovery; but the plea -should in itself, if true, contain a complete bar. This will be found stated at large by Cord Redesdale, in his excellent work on Equity Pleadings. Mitf. Eq. Pl. (by Jeremy, 4th Ed.) 239-243; Story. Eq. PI. §§ 680-687, 754. The same doctrine was affirmed by Lord Cottenham. in Foley v. Hill (3 Mylne & C. 475), according to my understanding of the true import of his lordship’s judgment.
Now, in the present case, there are various averments in the bill, which touch the validity of the bar of the statute. First, it states, that there were fraudulent representations made to the original administratrix of a partnership between the intestate and the defendant. which had no existence; secondly, a 'raudulent sale made by the defendant of the prig Emmeline; thirdly, negligence and misconduct in the sale of the ship Horatio; and fourthly, the bill alleges certain declarations and admissions of the defendant within six months, whicli acknowledge, that he still has assets of the intestate in his hands. None of these allegations are in the slightest degree alluded to. or negatived in the plea. And, perhaps, it will also be found, that a single plea of the statute, with a negative of all these matters, would not be valid on account of tlieir various nature; but that there should be distinct pleas and distinct answers severally to each of them, since they involve, or may involve, very different equities, as well as very different proofs.
Again. The plea is general, that the action accrued more than six years ago. But to whom it accrued, is not said. Now. the original administratrix died in 1826; and the present administrator de bonis non was not appointed until 1834, within six years of the filing of the plea. It is not said, that the cause of action accrued six years before the original administratrix died, or six years before the present bill was brought.
Again. The answer covers much more matter, than is strictly applicable to the mere [1187]*1187-support of the plea. AVhen the answer includes more than is necessary for such a purpose, it overrules the plea, and must so he held at the argument. A plea states some ground, why the defendant should not go into a full defence. Mitf. Eq. Pl. (by Jeremy) 298, 299; Story, Eq. PI. §§ 688, 693. But if the answer goes into a full defence, that necessarily overrules it. In the present case, the answer, among other things, not strictly responsive to the matters, charged by the bill to repel the statute of limitations,'goes on to set up a distinct defence of an account settled between ■ the original administratrix and the defendant, in 1812, which it insists was conclusive, as to some of the matters, in lespeet to which relief is sought.
Upon these grounds, it seems to me, that the plea ought to be overruled. But there are also objections to the allegations of the bill in its present structure. 1 suggest some of them for the consideration of counsel.
The bill is brought by an administrator de bonis non against the defendant for an account of the intestate's estate. (1) For moneys and property of the intestate, received in his lifetime. (2) For moneys and property of the intestate, received by him as agent of the former administratrix in her lifetime. The bill also makes a distinct claim for losses occasioned to the estate and to the administra-trix by his negligence and misconduct in his agency. The intestate died in 1811. Administration was taken by his widow in 1812. The administratrix died in 1820. The present plaintiff was appointed administrator de bonis non in 1894. The bill is. therefore, brought for an account after a great lapse of time; and, as courts of equity never entertain any bills of this sort, where there has been negligence or laches in the party, it is incumbent upon the plaintiff to set up in his bill, the reasons, why the bill was not brought at an earlier period, in order to repel the presumption of laches or unreasonable delay. If the ease turns upon fraud, mistake, concealment, or misrepresentation, the bill should state, what, in particular, the fraud, mistake, concealment, or misrej)resentation was. and how, and in what manner it was perpetrated. General allegations, that there has been fraud, or mistake, or'concealment, or misrepresentations, are too loose for purposes of this sort. The charges must be reasonable, definite, and certain as to time, and occasion, and subject matter. And especially must there be distinct averments of the time, when the fraud, mistake, concealment, or misrepresentation was discovered, and how discovered, and what the discovery is; so that the court may clearly see, whether, by the exercise of ordinary diligence, the discovery might not have been before made. For, if by such diligence the discovery might have been before made, the bill has no foundation on which it can stand in equity, on account of the laches.
Now, for all purposes of this sort, the bill is exceedingly loose, and vague, and defective. (1) The bill asserts a claim against the defendant for the brig Emmeline, sold after the death of the intestate by the defendant, belonging in whole or in part to the intestate, but which, it alleges, the defendant converted wholly to his own use. The time of the sale is not mentioned, nor whether under the agency, or with the consent of the adminis-tratrix. or not, or whether sold in her lifetime, or not. And yet it is almost a necessary inference, that the sale was in her lifetime, and with her consent; and no reason is assigned, why she did not receive, the-, proceeds, or such as belonged to the intestate. (2) The bill also charges, that.the defendant had received property of the intestate, under a false allegation of partnership with the intestate, and had not accounted for it. It is not stated with certainty, when the property was received; but it must have been in the time of the administratrix. It is not stated, that the administratrix had not the full means to inquire into, and to ascertain all the facts in her lifetime. Nor is it formally stated, in positive terms, that there was .a fraudulent concealment of any particular facts; nor when the discovery, if any, was first made of the real facts: nor how, or in what manner, or by whom. (8) The bill also charges, that . notes of the intestate, to the amount of $11,-000, were delivered up by the administratrix to the defendant, without payment or' consideration. upon fraudulent representations. But it is not stated, when they were so delivered up; nor what in certainty the fraudulent representations, were; nor when the fraud was first discovered, nor by whom, nor in what manner; nor whether, upon due diligence and inquiry, it might not have been fully ascertained long ago. (4) The bill also charges, that the ship Horatio, which was partly built in the intestate’s lifetime, and was finished after his death, was sold by the defendant, as agent of the administratrix; and that by his negligence and misconduct in his agency, a great loss was thereby sustained. Now. if there was any wrong done to the estate in this particular, it was a wrong done by the agent of the administratrix, for which he would be personally liable to her, and she to the estate. But, as her agent, the defendant stood in no privity or connexion with the estate, so as to be responsible for such misconduct or negligence to any succeeding representative of the estate. How can an administrator de bonis non maintain a suit in law or equity against an agent of the former administratrix, for a violation of his duty to the latter in his agency? It is not a contract with the intestate; but a mere personal contract with the administratrix. There is no privity in such a contract between the administrator de bonis non and the defendant. The allegation of negligence and misconduct, is also stated with great looseness. It is not said in what the negligence or misconduct consisted. (5) Then, again, the bill charges, [1188]*1188that the plaintiff took administration de bonis non in 1834; and in very general terms alleges, that he did not learn the facts fully until recently, after making inquiries. But the bill does not state, what particular discoveries have been obtained, or when they were obtained, or by what inquiries, or in what manner, or at what time; nor whether the same sources of inquiry were not fully open and well known to the administratrix in her life-time, and might not then have been equally successful. Indeed, so far as can be gathered from the imperfect allegations of the bill, all the facts and acts, now relied upon as grounds of relief, took place in the time of the administratrix, and many years before her death.
[Several amendments were subsequently filed, when, in 1843, the bill -was dismissed. An appeal was then taken to the supreme court, where the decree of the circuit court was affirmed. 7 How. (48 U. S.) 819.]
Under such circumstances, after such a lapse of time, it being between twenty and twenty-five years after the alleged transactions took place, and ten years after the death of the administratrix, the court have a right to require, before the bill is entertained, that a clear case should be made out, upon the very face of the bill, calling for its interposition; and showing that the parties in interest have been guilty of no negligence or undue delay, in not applying for relief at an earlier period.
After this expression of the opinion of the, court, the defendant asked leave to withdraw his plea, and the plaintiff - asked leave to amend his bill, which were accordingly allowed by the court.