*325The opinion of the Court was delivered at the adjournment in August following, by
MunoEN C. J.In this case three different questions are presented to the court for decision.
1. The first is a motion on the part of the plaintiff, for leave to amend, by inserting an ad damnum; through inattention none having been laid in the original writ.
2. The second is a motion at common law, for a new trial; ort the ground that one of the jurors who tried the cause was incompetent, for certain reasons stated in the motion on file.
3. The third is a motion for a new trial, founded on exceptions to the opinions and instructions of the judge who presided at the trial of the cause. A verdict was returned for the plaintiff for the sum of $2031,96.
We shall proceed to examine these several motions in the order in which we have arranged them.
It is a principle of law established by several decided cases, that if judgment be rendered for a sum larger than the amount of the ad damnum, it is, for that reason reversible on a writ of error ; and it must be reversed, unless the plaintiff will enter a remittitur of the excess. If this be done, the court will affirm the judgment for the residue. Hutchinson v. Crossen, 10 Mass. 251; Grosvenor v. Danforth, 16 Mass. 74. In the present case, the counsel for the plaintiff. after the verdict was returned, discovered that no ad damnum was laid $ and' anticipating the danger to which his client would be exposed by taking judgment on the verdict, in case the defendant’s motions should be overruled, he very prudently made the motion to amend. The 16th section of our revised statute, ch. 59, has respect only Jo circumstantial errors or mistakes ; and it would seem that, inasmuch as a judgment is liable to reversal, if rendered for a larger sum than the ad damnun alleged, the total omission, or the smallness of an ad damnum, cannot properly be considered as merely a circumstantial error or mistake ; at least after rendition of judgment. Perhaps until judgment is rendered, it may be so considered. We are not aware of any decisions opposing tliis idea. Matters of sub *326stance are those essential to the maintenance or defence of an action. Circumstantial errors or mistakes are those which ar.e in'matters not essential. It will be observed that, as yet, no objection has been made by the defendant on account of the omission of the ad damnum, either by plea in abatement or motion ; but he filed his pleas in chief, and the cause has been tried, on its merits. The declaration sets forth a good cause' of action ; and the omission we are considering has not, up to the present stage of the cáuse, been of the least importance to either of the parties ; nor has it the remotest connexion with the-justice of the case. And now, why is not the want of an ad damnum at this time a circumstantial error or mistake ? If so 5 then it is a subject of amendment by the very terms of the section before mentioned. When a writ of error is brought to reverse a judgment because it exceeds the ad damnum, if the creditor remits the excess, this remittitur is considered as a species of amendment, which he has the power to make by releasing his damages down to the amount of the damage alleged; and probably, in those cases where judgment has been reversed for excess of damages, the court would have avoided the necessity, had they been empowered in such cases to grant leave to the plaintiff to make a more advantageous amendment, by increasing the ad damnum to a sufficient amount; but on error, this cannot be done. In the before cited case of Hutchinson v. Crossen, the court say, “ The writ of error is a commission to this court to examine the record of a judgment in an inferior court, and thereupon to reverse or affirm such judgment according to law. We can only examine that record, as it is certified to us, and determine whether it warrants the judgment rendered by the other court.” But the present case is not before us on error but on appeal, which opens all questions in relation to the merits of the cause on every ground.- We are in the constant habit of allowing amendments in such cases; but not in proceedings on error. At common law, if a verdict, and general damages be given, where the declaration contains several counts and one of them is bad, judgment may be arrested or reversed on error, for that reason; but if the judge who tried the cause will certify that all the counts were for the same cause of action, or that the evidence applied only to the good *327count or counts, the court, even al a succeeding term, will allow the plaintiff to amend the' verdict, so as to make it applicable to the good count or counts. This is done to prevent an arrest or reversal of judgment. This is stronger than the present case. Barnard, v. Whiting, 7 Mass. 358; Barnes v. Hurd, 11 Mass. 57; Sullivan v. Holker, 15 Mass. 374; Patten & al. v. Gurney, 17 Mass, 182. m Petrie v. Hannay, 3 D. & E. 659, the verdict took no notice Jef one of #io issues; and afterwards a writ of error was brought in the House of Lords. The plaintiffs there obtained a rule to show cause why they should not be allowed to amend by the judge’s notes, by adding a verdict on the second plea; and the amendment was allowed. The same thing was allowed on error in the case of Clark v. Lamb, 7 Pick. 512, as to the amendment of a verdict. These decisions go further still in support of the justice of the case, after the merits have been fairly decided. In both cases the error or omission was considered as matter of form ; and a more liberal principle was adopted and acted upon than was deemed proper in Hutchinson v. Crossen, which we have before cited. In Sayer v. Pocock, Cowp. 407 no issue was joined ; but the cause went down to trial and a defence was made. After verdict, the party had leave to amend by adding a similiter; Lord Mansfield al the same time saying that one was ashamed and grieved that such objections remained; but by amending, the court only made that right, which the defendant himself understood to be so, by going down to trial. So also in Grundy v. Mill, 1 N. Rep. 27, a tender was pleaded, but no regular issue was joined; and after verdict, the court allowed the record to be amended, on the principle adopted in Sayer v. Pocock. In both these cases there was an omission of one of the parties of such a nature as to leave no question regularly presented for trial; but the error was promptly corrected , the parties having tried the cause fairly on its merits without knowing that any omission or error existed. The same observation may also be applied to this case. The omission in question must have been the consequence of mere inattention; an evident mistake of the clerk who made the writ; whereas the insertion of too small a sum by way of ad damnum may be the effect of misjudging or miscalculation ; it *328has not the appearance of mistake. In New York in the case of Bogart v. McDonald, 2 Johns. Ca. 219, leave was given, on motion to amend by increasing the ad damnum. So also in Danielson v. Jlndrews, 1 Pick. 156. We will, on this point, cite one case more, which seems to be a direct authority, viz. Tomlison & al. v. Blacksmith, 7 D. & E. 132. It was an action of assumpsit) damages laid at £100 ; verdict for the plaintiff for the sum of £600, 9,6. The plaintiff moved for leave to amend by increasing the §d damnum to £1000, and leave was granted accordingly ; but Lord Kenyon at the time observed “ it would be going too far to make the amendment required, without sending the cause to a new trial, as the defendant might have gone to trial, relying that no more than £100 could be recovered.” Such was the reason for granting the amendment upon the above terms in that case. But in the present case, to impose such terms would be useless and absurd; for the defendant has exerted his full strength and contested every item of the plaintiff’s account, without measuring his defence by the amount of the ad damnum) for there was none. He did not, and could not make any such calculations; and for the most conclusive reason ) for it is not even pretended that he had any idea of the Omission, of an ad dam-num till after the close of the trial. But it is contended, that as the plaintiff inserted no ad damnum, the court of Common Pleas had no jurisdiction of the cause, and, therefore, that this court has none) and that although no plea to the jurisdiction was given, the defendant may still avail himself of the objection, as it appears on record. If we are referred to the record, we must look to the whole of it. An account of some thousands of dollars is annexed to the writ and the verdict which the jury have returned, has established the plaintiff’s claim to a large amount, shewing that legal jurisdiction over it appertained to the court of Common Pleas, and now belongs to this court. It would be matter of regret, if not of reproach to our laws and to the administration of them, if such a motion could not be sustained. We entertain no doubt on the point. The plaintiff, therefore, has leave to amend, by inserting a sufficient ad damnum, and the clerk will enter, that such leave is granted and that the amendment is ma.de accordingly.
*329Tbe motion to set aside the verdict and grant a new trial on account of tbe asserted disqualification of Nathan Winslow, one of the jurors, is the next subject for our consideration. It is proved that he is the son-in-law of Samuel F. Hussey ; who is a creditor of Waite, the intestate, and whose claim has been allowed by commissioners ; and from the evidence reported by the judge relating to the subject of the motion, it appears that the juror was wholly ignorant of the existence of Hussey’s claim, and of course it could have had no influence upon his mind in the decision of the cause. And from the same reported evidence it appears that the agent of the defendant, Mr. Sherwood, who attended the trial, had been distinctly informed, before that time, of Hussey’s claim; and one, at least, of the defendant’s counsel knew the fact j but it seems it escaped the recollection of them all. These facts certainly do not countenance the motion, which is addressed to the discretion of the court. If a juror be drawn more than twenty days before the sitting of the court, it is a good reason for dismissing him ; but the objection comes too late after verdict, though not till then known to the party objecting. Amherst v. Hadley, 1 Pick. 43. So if a tal-esman sits in a cause for which he was not returned, the objection cannot be sustained after verdict. Howland v. Gifford, 1 Pick. 43 note. So if a person, not by law qualified to sit in the trial of a real action, where the tenant claims compensation for his improvements, because he holds lands by a possessory title in the same manner, does actually sit as a juror; a new trial cannot be granted on that account, though the disqualification was not known till after verdict. Jeffries v. Randall, 14 Mass. 205. So if a talesman be returned by the sheriff, in an action where his deputy is a party. Walker v. Green, 3 Greenl. 215. The utmost which can be urged by the defendant’s counsel is, that they forgot to make the objection in season by way of challenge; nor was it intimated to the court, and then not in the hearing of any of the jury, till near the close of a long trial. But the fact is, there was no disqualification on the part of the juror, and there could not have been any till he had been informed of Hussey’s claim. We see no grounds for disturbing the verdict on account of any reasons set forth in the motion. The *330great objects o,f a trial by jury have been attained ; the facts have been submitted to them ; and they have impartially returned their verdict upon those facts, under the influence of no motives that we have the right to believe or even suspect to be improper.
We therefore pass to the consideration of the third question, or motion founded on the exceptions. The exceptions alleged are numerous, and have respect to almost all the proof introduced, and all the decisions and instructions of the presiding judge ; and, of course, the opinion of the court may be extendedlo an unusual length in the examina-nation of this branch of the cause. Several of the exceptions, however, and the subjects with which they are connected, may be embraced in one view ; because one general answer may apply to them, and the same principles govern our decision in respect to them. But hr this examination we shall arrange the exceptions, so as in the first-instance to dispose of the minor questions, and then proceed to a distinct and full consideration of the more important.
The exception against the admission of the day book of the intestate is entirely destitute of legal foundation. It was admitted under such instructions and restrictions as are usual in similar cases; the principles regulating this species of proof are very familiar, and the citation of authorities is unnecessary. The exception to the admission of those' charges in the leger entered in the hand writing of Dunn, as evidence to the jury, we consider as equally unsupported; they were admissions on the part of Dunn, and, as such, competent proof, upon the plainest principles of law..
As to the charge for cash paid to John Waüe, we cannot pronounce the instructions of the judge to be incorrect, in the peculiar circumstances of the case. 'The evidence, such as it was, was left to the jury for .their consideration. They were informed that the book alone was not legal proof of the charge, but was admissible, and might be considered in connexion with the other proof. John Waite had for many years been dead; the receipt on the back of the note given by Dunn, was in John Waite’s writing, and the note was produced on trial, by the plaintiff, in whose possession we should expect to find it after it was paid by the intestate. The numerous instances of small sums charged by him as paid for Dunn, and proved *331in the usual manner, as we see by the account annexed to the writ; the age of the transaction, and other circumstances above mentioned, we think furnished good grounds for the jury to infer the truth and fairness of the charge.
The admission of the paper book, containing sundry accounts in the hand writing of Dunn, as mentioned in the exception, was perfectly correct. The statements therein made were confessions of Dunn deliberately made ; and, being legally in evidence, it was the province of the jury to examine it, and draw their own conclusions from its contents ; and with respect to the supposed loss of some of its leaves, either by accident or design, and the inferences to be drawn from its appearance, they were all subjects exclusively within the province of the jury; and the instructions of the judge to that effect were in our opinion correct and proper. A similar answer may be given to the exception alleged against the direction of the judge touching the statement of the account of October 1799, and that appearing on the account annexed to the writ. The questiou was, whether it was a statement or adjustment made by both parties, that is, by Waite and Dunn ; or only a statement by the intestate only, or some person employed in drawing off the account. This was a subject also to be examined and decided by the jury ; and it was very properly submitted to their determination.
The next exception relates to the instruction of the judge as to the note given by the intestate to the assignees of Pierson Sf Thatcher. The jury have decided that the charge originally made against Dunn, was transferred and made against Waite by the consent of Dunn ; and that afterwards Waite gave the note in question; and that the assignees received it in full satisfaction of the debt due originally from Dunn, and afterwards, by transfer of the charge, due from Waite. It has been urged in the argument that there was no sufficient or satisfactory proof that the transfer of the charge and the assumption of the debt by Waite were authorised by any request on the part of Dunn. On this head all the evidence is not particularly detailed in the exception ; but if it had been, we are not inquiring whether the verdict in this particular is against evidence or the weight of evidence. There is no motion before us for a now trial on such *332ground. This same answer may also be considered as applying to the decision of the jury upon several of the particulars we have been examining. It was admitted that the note has never been paid to the assignees; and it is contended by the counsel for the defendant, that the sum for which the note was given cannot be recovered in this action.' The instruction was that it might be recovered, and the jury have allowed it. It seems to be a well settled principle that a surety cannot maintain an action against the principal or a co-surety for reimbursement or contribution, until after payment of the debt by him, or what is equivalent thereto. 2 Stark Ev. 99. And this principle will not be changed by such surety’s having given to the creditor collateral security for the debt. The reason is obvious ; for such additional security does not in the least impair the obligation on the part of the principal or co-surety ; the original liability still remains, and each may be called on for payment, as he might have been before. By the payment of the debt by the surety, it is admitted that he at once acquires a_ right of action against the principal or co-surety. The reason is, that by such payment, all the obligors or promissors are discharged from their original contract. This discharge of the principal and co-surety is the consideration of the promise of immediate reimbursement or contribution which the law raises. Now, in ■the case before us, Waite has relieved Dunn from his original liability to Pierson & Thatcher, by assuming the debt himself, at his request, and thus subjecting himself to liability; and Dunn, in his life time, was as effectually discharged from responsibility by this arrangement, as he would have been if Waite had paid the debt in cash to the assignees ; for the jury have found that the note was accepted in full discharge of the debt originally due from Dunn; and the object of this suit is to colléct a sum of money to be appropriated to the benefit of Waite’s creditors; to pay, in whole or in part, among , other debts of Waite, the very note in question! Authorities on this point are not wanting. In Barclay & al. v. Gouch, 2 Esp. 571, it was decided by Lord Kenyon, that the plaintiffs haying at the request of the defendant given their note for a debt which he owed, was in law to be considered as payment in respect to the defendant: and the plaintiffs had a verdict for'the amount for which the note *333was given, though it had not been paid. A new trial was moved for at the next term and refused. This case is mentioned by the court in that of Douglas v. Moody & al. 9 Mass. 553, with approbation, and the correctness of the decision recognized. The same court also, in the case of Cornwall v. Gould, 4 Pick. 444 confirmed the same doctrine. There the plaintiff had indorsed a note made payable to him by one Kenniston, at the request of the defendant, and the same was discounted for his benefit at a bank in Georgia, and he received the money. After one or two renewals of the note, the plaintiff took it up, and paid it by giving a new note, signed by himself and indorsed by one Clafflin. On a count for money paid, the plaintiff was allowed to recover the amount, though it never had been paid to the bank, except by the new note. The ground of the decision was that Kenniston, the original debtor and maker of the first note, was completely discharged. In accordance with the above decisions is the opinion of the court in New York in Witherby v. Mann, 11 Johns. 516. The facts were almost precisely similar to those in Barclay v. Gouch. The principal case which seems to shake that of Barclay v. Gouch is Taylor v. Higgins, 3 East 169, decided five years afterwards. The opinion was given after a few moments conversation in court, on a motion to hold the defendant to special bail. The motion was not sustained, on the principle that the plaintiff had only given his bond, in satisfaction of a former bond signed by himself and the defendant, and as his surety, but had never paid the same. In Cornwall v. Gould, the court did not consider Barclay v. Gouch as an overruled case. If, however, the English cases should be viewed as balanced, the weight of authority seems clearly in favor of the correctness oí the principle as laid down by Lord Kenyon, and sanctioned by the court. In a previous case this court has adopted and decided on the same principle.* On the facts and authorities before us, relative to this part of the cause, we perceive no incorrectness in the direction given to the jury. To the above point we would also refer to the cases cited by the plaintiff’s counsel in Cornwall v. Gould.
The next objection in the order in which we have arranged them *334relates to the instructions of the judge as to the, presumption of payment, arising from lapse of time, or rather the circumstances relied on as repelling that presumption. The general principle of law is very plain; it is also perfectly clear that many circumstances may exist and which are proper subjects for the consideration of the jury, tending to account for delay, and remove the presumption of payment, and, of course, the ground of defence ; such, for instance, as the debtor’s acknowledgment of the non-payment of the debt — payment of a part of the debt — payment of interest — frequent demand of payment — obstacles to a recovery, arising from the interruption of the course of justice, as was the case during the war of our revolution. In Dunlap v. Ball, 2 Cranch 180, Marshall, C. J says, “ the principle upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule.” Insanity and poverty of the defendant were held sufficient to rebut the presumption of payment. So the poverty and absence from the State, of the debtor, were held sufficient. 5 Dane 506, art. 3, sec. 1. The instruction given was that mere poverty of Bunn did not rebut the presumption ; but that the debtor’s absence from the country, during the twenty years, was sufficient to control and repel the presumption. This principle was expressly decided in the case of Newman v. Newman, 1 Stark. R. 101, in language the most unequivocal; and the opinion was not questioned. It appears by the exceptions that Bunn left this country in the fall of 1799, in indigent circumstances, and returned to Ireland, the place of his nativity, where he continued to reside till his death in 1805 ; and that no administration was granted on Waite's estate till the year 1822. Though no reference was made to these facts particularly in the instructions to the jury, yet they were in the case, and are before our eyes. So that there was poverty, as well as absence from the country, to repel the presumption, according to one of the cases cited in Bane. In the case of Fladong v. Winter, 19 Ves. 196, it was decided by Lord Eldon that the presumption of payment of a bond, after twenty years, might be repelled by evidence that the obligor had no opportunity or means of paying; and in support of the latter, the chancellor stated *335that such he understood to be the principle of the decision in the ease of Wynne v. Waring, which had a short time before been decided. As it regards opportunity of paying, the want of administration on Waite’s estate till 1822, was considered by the judge a sufficient reason for excusing the defendant from the payment of interest from the time of Waite’s death until the grant of administration. This circumstance seems to furnish the same reason for the non-payment of the principal as of the interest. On the whole, we see no ground for setting aside the verdict on account of any misdirection of the judge touching the question involved in the exception thereto on this point. The only remaining question on the exceptions, growing out of the facts in evidence on the general issue, relates to the instruction on the subject of the allowance of interest. This may be disposed of in a moment. The claim to interest was placed on the ground of mercantile usage and the adoption of this usage in the transactions between the intestate and testator} and the question of usage was very properly submitted to the jury for decision.
We now proceed, in the last place, to the consideration of the questions arising on the exception to the judge’s instruction relative to the defence upon the plea in bar, and the construction of that part of the statute of limitations which was presented by the issue.
Though the pleadings are protracted to a surrejoinder before an issue to the country is formed ; yet the simple and single question put in issue is whether “ all accounts, concerns and transactions between the plaintiff’s intestate and the defendant’s testator were liquidated and closed at the time of, and for more than six years before, the commencement of the plaintiff’s action.” This fact the defendant in his rejoinder affirms, and the plaintiff in his surrejoinder denies, and issue is taken on the traverse.
This part of the cause demands and has received our particular attention, and been subjected to a patient investigation. By a review of the numerous cases to be found in our law books upon the subject, we perceive that the exception in the. statute as to merchants* accounts has created doubts and been the cause of a series of contradictory decisions by able judges, both in England and in this country, in courts of chancery and courts of law; and the learned *336Chancellor Kent has observed that the true and definite meaning of the exception seems at this day unsettled in Westminster Hall. It does not appear that the points presented in this case have been settled in more than three of the states in the union, viz. Massachusetts, Pennsylvania and South Carolina. Under these circumstances we are called upon in this action to give a construction of it and pronounce our judgment, which must' decide the rights of the parties, and be our guide for the future. In doing this, we must avail ourselves of all such lights as can be derived from the opinions of learned courts and learned judges in England and in the United States. As the reported decisions cannot be reconciled, we know of no other safe course to pursue, than to search for the intentions of those who framed the statute of limitations, as originally passed in England, of which ours is almost an exact copy, and thus ascertain, as well as we are able, how far. the various constructions which different parts of it' have received are in unison with those intentions', and how far they have a tendency to defeat them. In doing which, it will be found, unless we labor under mistake and misapprehension', that the restraining parts of the act, and the exception of merchants’ accounts, have frequently been construed on principles in opposition to each other ; and that too much latitude of construction has led to that doubt and perplexity which now exist.
The language of the exception in the statute of limitations of 21 Jac. I, cap. 16, and of our statute on the subject is this, viz. “ other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants.” Whatever the “ accounts” are which were intended to be described in the above exception, they are in express terms excluded from the operation of the restraining clause ; and as effectually as if they had been contained in a proviso at the end of the section, declaring that as to such accounts the statute should have no operation or effect whatever. Hence the first inquiry is, what we are to understand by the above mentioned descriptive word “ accounts.” We apprehend there is no difficulty in giving a satisfactory answer to this question. It has been correctly answered by a course of decisions. By that word are intended open or current accounts, as distinguished from *337stated accounts. Stated accounts are those which have been examined by the parties, and where' a balance due from one to the other has been ascertained and agreed upon as correct. The case of Sandys Ex‘r. v. Blodwell, Sir W. Jones, 401 shews this. The parties, Freeman, (the testator) and BlodweM, disputed as to the balance; and Freeman died before any was agreed upon. The justices to whom the subject was referred, certified that the account was not barred, because it was not finished ; and also because it was an account between merchant and merchant. In the above case the statute oflimitations was pleaded. Now, what is the true reason on which the above mentioned construction has been given so uniformly, making the distinction between open and stated accounts ? We apprehend it is simply this | while an account remains open, each party is depending for the recovery of the balance he may consider due to him, upon the promise which the law raises on the part of him who is indebted, to pay that balance ; but when the parties have stated, liquidated and adjusted the accounts, and thus ascertained the balance, it ceases to' be an account; it has lost the peculiar character and attributes of an account; what was before an implied promise to pay what should be found to be a reasonable sum, by such liquidation and stating of the account, at once becomes an express promise to pay a sum certain. Such an adjustment will support a count on an insimul computassent. Such balance is a result in which previously existing accounts have become merged, and lost their character and existence. This view and this reasoning seem clearly to be sanctioned by decided cases. Thus in Martin v. Delboe, 1 Mod. 70, the court say, “ accounts within the statute,” (that is, within the exception of the statute) “ must be understood those that remain in the nature of accounts; now this is a sum certain.” So in Farrington v. Lee, 1 Mod. 268, the plaintiff declared on an insimul computassent; the statute of limitations was pleaded, and merchants’ accounts replied; to which there was a demurrer. Scroggs ,7. observed, t£ As this case is, there is no account betwixt the parties; the account is determined, and the plaintiff put to his aetion on the insimul computassent, which is not within the exception. In Webber v. Tivill, 2 Saund. 124, Jones for the defect-*338dant, (whose reasoning was fully confirmed and adopted by the court) observes, “ Here it appears that the account for £55, 11, 7 was stated and agreed ; and then it immediately became a debt certain, being ascertained by the account; and for this debt, after the account was stated, the plaintiff might have brought his action of debt, which would without doubt have been limited to six years by the statute.” If the view we have thus taken, and the course of reasoning we have pursued, are correct; and if we have ascertained the true meaning of the language of the exception in the statute, it would seem to follow, that nothing but a statement, liquidation and adjustment of accounts by the parties, their agents or representatives, could take merchants’ accounts out of its protection, and place them under the power and operation of its limitations. Whether the inference thus stated is the correct one, is the question to be considered. On this point dicía and decisions are. numerous and contradictory. Before examining them, it may be well to observe here that by the course of the pleadings it is admitted that the accounts in question in this cause are those which “ concern the trade of merchandize between merchant and merchant.” This obviates some questions which have arisen in several of the decisions in the courts of law and equity. The inquiry then is, upon the general ground,
I. Whether the death of both or either of the original parties, Waite and Dunn, has operated so as to subject the accounts to the limitations of the statute.
II. Whether the cessation of dealings and termination of charges, more than six years before the commencement of this action, has produced the above effect on the accounts.
III. Whether the foregoing questions, are, or either of them is, open to examination by the defendant, upon the special issue joined by the parties.
As to the first question. Independently of all authority, it seems to the court to be a difficult task, by any reasoning from analogy, to establish the principle that the death of one of two merchants, who for years have been dealing together, should, in legal contemplation, have the same effect upon their mutual accounts as a liquidation and adjustment of them. An adjustment implies the operation and as*339sent of two minds, at least; because, in its very nature, it is a contract of itself. How then can the death of such merchant give such sanctity to his books and accounts, as to render them as conclusive evidence of their truth and accuracy, and of the correctness of the balance appearing thereon to be due him, as if that balance had been struck by both, and agreed to by the survivor ? But if the death of A. one of the merchants, is to have such an effect on his books and accounts, why should not the death of B. the other merchant, immediately afterwards, have the same effect on his books and accounts ? And if the apparent balance on A’s books and accounts essentially vary from that appearing on B’s books and accounts, what is to be done in such case ? Both cannot be true and correct; to which is credit to be given ? We cannot respect a doctrine leading to such consequences and such confusion : nor do we perceive that such a principle is established by decided cases. The case mentioned in 5 Dane’s Abr. ch. 161, art. 5 see. 4, as having been decided in Massachusetts in 1800, of which notice is also taken in Story’s pleadings, 91, is so loose, and stated with so much brevity, that the grounds of the decision are not very distinctly perceived. The learned author has merely said, “ Held that in account current between merchants, the act does not begin to run till settlement, or till one dies ; because mutual charges on their books, is a mutual admission of their debts.” Now, the reason assigned has no necessary connexion with merchants’ accounts more than with any other species of accounts; nor with the accounts of deceased more than living merchants. The principle stated is well settled and very familiar; in respect to which the case of Catling, Ex’r. v. Skoulding & al. 6 D. &. E. 189, is a leading one. This court has adopted the same in Davis v. Smith, 4 Greenl. 337. We do not perceive, from the foregoing brief note, that the death of one of the merchants had any influence with the court; but we are rather led to a different conclusion, from the assignment of mutuality of accounts as a reason which guided them. Dallantine, in his treatise on the statute of limitations, page 76, observes that “ if between merchant and merchant dealings betwixt them have ceased for several years, and one of them die, and the surviving merchant bring a bill for an account, the court will not de» *340cree an account, but leave the plaintiff to his remedy at law. This does not prove that such death or cessation of dealing has changed the nature of the account, but only that it may induce a court of equity to make no decree on the subject. By leaving the plaintiff to his remedy at law, we are left to draw the conclusion that such a remedy is considered as existing, notwithstanding such decease. In support of the above observations, Ballantine cites a case from 1 Vern. 456, where there had been a cessation of dealing, and one of the parties had died; yet as there had been a long acquiescence without a settlement, the bill was dismissed, and the plaintiff left to her remedy at law. So also in the case of Sandys v. Blodwell, before cited, the plaintiff’s testator was one of the merchants whose accounts were the subject of investigation. The statute was pleaded to the bill filed, but the death of the testator was not considered as having the effect which is contended for in the case at bar. So also in the above case of Catling Mx’r v. Skoulding & al. ; the defendants pleaded the statute of limitations, and the plaintiff replied a new promise; and contended that there was such mutuality of accounts, and some charges within six years, as would bring the case within the exception in the statute. The defendant’s counsel objected that the case did not come within the exception, and if it did, it should have been replied specially, as was the case in Webber v. Tivill, where there was a replication of merchants’ accounts; and Lord Kenyon admitted the validity of the objection, as to the necessity of a special replication, where there is no item within six years ; but considered in that case such a replication unnecesary, as there were such items. If the testator’s death had subjected the account to the limitations of the statute, would counsel have urged the necessity of such a replication, when it would have been needless, and Lord Kenyon have approved it? We apprehend that, in a legal point of view, the only effect produced on the accounts of two merchants, dealing together, by the death of one of them, is, that it necessarily causes a cessation of dealing, and terminates the accounts. This brings us to the consideration of the second question.
The second inquiry is whether a cessation of dealings is equivalent and amounts to a liquidation and closing of the accounts, and that *341after the lapse of six years, it subjects them to the statute of limitations, and bars a recovery. According to the view which we have taken of the exception in the statute, and its fair construction, we cannot avoid the same difficulty in arriving at the conclusion, by any process of reasoning, that such cessation has the effect contended for by the defendant’s counsel, which we encountered in considering the first question. Lapse of time seems to furnish no proof of an agreement of the parties as to the truth of an apparent balance ; certainly no more proof after the expiration of six years, than at the end of five years. Still we are aware that the books of reports, especially many of the English books, contain a number of cases in which the exception in the statute has been the subject of consideration and construction, in various forms, and on various principles; yet it remains unsettled, as we have before observed.
We will now proceed to a brief examination of the principal cases on the subject; commencing with those which have been considered as supporting the defence upon the point now in question. Most of these have been collected by Chancellor Kent in Coster & al. v. Murray, 5 Johns. Ch. 522, as well as by Bállantine and Angelí. The collection by Mr. Angelí, being the most recent, is the most full and satisfactory. The first case we notice is Webber v. Tivill before cited, which was assumpsit; one count being for monies had and received and goods sold, and another on an insimul computassent; plea, the statute of limitations ; replication, merchants’ accounts; and demurrer. The court gave judgment for the defendant; but it was expressly stated to have been given on the ground that the parties had stated the account and agreed on the balance. It was not an open account. No one doubts the correctness of this decision. The case of Bridges v. Mitchell, Gilb. Eq. R. 224, merely states the undisputed principle, that the exception in the statute applies only to open accounts. The case of Welford v. Liddel, 2 Ves. 400, was a bill for an account, and the statute was pleaded; but it does not appear to have been an account between merchant and merchant. The plea was allowed. Lord Hardwiche, in giving his opinion, recognizes the distinction between running accounts, and accounts closed and concluded, and the application of the statute to those of the latter *342description; but the case seems to establish nothing as to the point under consideration, it not appearing that they were merchants’ accounts. If they were, then the decision is in direct opposition to one made by this same lord chancellor in the year 1737 ; in which he declared his opinion that between merchants, an open account was within the exception, and protected by it, though there had been no dealings within six years. The case of Martin v. Heathcote 2 Eden 169, is in point for the defendant. Lord Chancellor Worthington, in that case, which was a bill filed for an account, and the statute pleaded, observed that merchants’ accounts, after six years total discontinuance of dealing, were as much within the statute as other accounts. In Jones v. Pengree, 6 Ves. 580, a case was cited by counsel as having been decided by Lord Roslyn, between Crawford and Liddel, upon principles in accordance with those on which Lord Worthington proceeded. The above case of Jones v. Pengree was decided on a point foreign to the one we are now considering. In Duff v. E. India Company, 15 Ves. 198, the question was discussed, and, as Chancellor Kent observes, treated as an open question; but the cause was decided on another ground. In Barber v. Barber 18 Ves. 286, to a bill for an account, the statute was pleaded. All dealings had ceased more than six years before the filing of the bill j and Sir William Grant, the master of the Rolls, decided that the ease was within the statute. The cases of Ramchander v. Hammond, 2 Johns. 200, and Cogswell v. Dolliver, 2 Mass. 257, relate only to the well known distinction between open and stated accounts, and the effect of mutual accounts. The court of appeals of South Carolina, according to the decision in Van Rhyn v. Vincent, 1 Me Cord 150, may be considered as an authority in favor of the defendant. In the case of Union Bank v. Knapp, 3 Pick. 96, the court intimate an opinion that open accounts are barred after six years ; but the same court have since expressly overruled that case, as will be noticed particularly hereafter. The opinion and statements of Maddock and Beame, can only be founded on the contradictory decisions of the English courts. Distinguished judges and chancellors have entertained and pronounced with firmness contending opinions ; and it would be singular, indeed if such great and excellent *343men, and such eminent jurists as Sir Samuel Romilty and Chancellor Kent should not have drawn their own conclusions, and reposed with confidence in the opinions they had formed; opinions, most certainly entitled to the highest respect. In the case of Coster & al. v. Murray, 5 Johns. Ch. 522, though the learned chancellor intimated his opinion that the weight of authority seemed in favor of applying the statute to open merchants’ accounts, when the last item is more than six years before the commencement of the suit; yet he did not decide the cause on that ground ; nor was the decree affirmed in the court of errors upon that ground, but expressly on another. See 20 Johns. 576. We believe we have noticed all the authorities relied on by the defendant’s counsel, except those which we shall consider in reviewing the cases cited in support of the action.
We will now proceed to the examination of those authorities which have established or recognized a different construction of the exception in the statute relating to merchants’ accounts, and on which the counsel for the plaintiff place their reliance.
The first is the case of Sandys v. Blodwell, which has been twice cited before. Tho facts of the case we shall not repeat, but merely state that the justices certified that an open and unsettled account between two merchants was not barred by the statute, though more than six years old when the action was brought. The next is the decision-of Lord Hardwiche in 1737, referred to by Lord Eldon in Foster v. Hodgson, 19 Ves. 180. The next is the before cited case of Cat-ling Ex’r. v. Shoulding, in which Lord Kenyon states the principle to be that “ where there is no item of account at all within six years, the plaintiff, to the plea of the statute, must reply specially, as was done in Webber v. Tivill, in order to bring his case within the exception. In that case the plaintiff replied that “ the accounts wholly concerned the trade of merchandize.”
The next is the case of Foster v. Hodgson, above cited, in which Lord Eldon considers the question as still open and unsettled in England, notwithstanding the several decisions which we have mentioned, as well as some others ; but as the bill did not expressly state the accounts then before him, to be accounts between merchant and merchant, his lordship did not undertake to decide this long contes*344ted question. The principle as contended for by the counsel for the plaintiff is plainly, though incidentally, recognized by this court in the case of Davis v. Smith, 4 Greenl. 337. The decision was on another ground.
The principle contended for by the plaintiff seems to have been conceded to be correct in the case of Godfrey v. Saunders, 3 Wils. 94. The defendant’s second plea was that there was not any open áecount between the plaintiff and defendant, at any time within six years before the commencement of the action. The plaintiff replied to this plea that the account concerned trade and merchandize, which was never adjusted or settled between them. The defendant rejoined that the account did not concern trade and merchandize, and thereupon issue was joined to the country. Now why did not the counsel for the defendant demur to the replication, if accounts between merchants, though open and unadjusted, are barred by the statute of limitations ?
The next case is that of Stiles plaintiff in error v. Donaldson, 2 Dal. 264. In an action on bond, the defendant filed in offset an account between the plaintiff and himself as merchants, and concerning the trade of merchandize. The account had remained unliqui-dated and unsettled for seventeen years. The plaintiff contended that it was barred by the statute of limitations, by such long delay and acquiescence. The court decided that the account was not affected by the limitations of the act, and affirmed the judgment below.
We next proceed to the case of Mandeville & Jameson, plaintiffs in error, v. Wilson, 5 Cranch 15. This was an action of assumpsit for goods sold and delivered; pleas, the general issue, and statute of limitations ; replication to the latter plea, that the money “ became due and payable on an account current of trade and merchandize had between the said plaintiff and defendants as merchants, and wholly concerned the trade of merchandize.” The defendants rejoined that “in January 1799 the partnership between Mandeville and Jameson was dissolved, and all accounts between them ceased ; and that since that time no accounts have existed or been continued between the plaintiff and the defendants.” The plaintiff surrejoined that the goods were sold and delivered before January 1799 j de*345murrer, and joinder. The opinion of the court delivered by Marshall C. J. was — “ that the exception in the statute applied as well to actions of assumpsit as actions of account; that it extended to all accounts current which concern the trade of merchandize between merchant and merchant; that an account closed by the cessation of dealings between the parties, is not an account stated ; and that it is not necessary that any of the items should come within the five years; that the replication was good, and the rejoinder bad.” The judgment below, which was for the plaintiff, was affirmed. The statute oflim-itations in Virginia, which governed the court in the above cáse, bars actions of assumpsit on accounts, &c. after the lapse of five years, instead of six years as with us. The judgment rendered in this case goes the full length of establishing the doctrine laid down by the presiding judge at the trial, and puts a distinct and decisive negative upon the defence, and removes all the grounds on which it has been placed. Indeed the facts are essentially the same as those in the case at bar. In both, there was a cessation of dealings and termination of accounts, and that was all; in neither was there any statement, liquidation or adjustment of them whatever by the original parties, their agents or representatives. In the case of Murray & al. v. Coster & al. 20 Johns. 576, Vielie, one of the senators, goes into a broad investigation of the numerous cases on the construction of the exception in the statute, as Chancellor Kent had before done, on the trial before him in chancery. The senator was fully of opinion that the accounts and concerns between the parties related to the trade of merchandize between merchant and merchant, and on that account were within the exception; and he concludes his remarks on this branch of the cause with these emphatic words : “ I consider such of the English decisions as contravene the construction I have given to the statute, as little better than judicial usurpation of legislative authority/’
In commenting on the case of Union Bank v. Knapp, cited by the defendant’s counsel, we noticed that it had been overruled by the same court. Since the trial of this cause, the case of Bass, ez’r. ¶. Bass, has been published in 6 Pick. 362, in which it was explicitly decided that merchants’ accounts, as described in the statute o)f *346limitations, ave excepted from the operation of that statute; and in another report of the same cause, appearing in 8 Pick. 187, the court say that upon a revision of the above decision, they are satisfied with its correctness.
From the foregoing review of the decisions on the questions immediately before us, we cannot persuade ourselves that the weight of authority is in favor of the construction for which the counsel for the defendant have so ably, anxiously and strenuously contended ; especially when we consider that in the last English decision which’ we have seen, Lord Eldon expressed his opinion that the question was then open and unsettled in that country; and considering also that where the courts in our own country have professed to decide it, (with the exception of the court of appeals in South Carolina, which inclined strongly the other way) the decision has been unequivocally against such a construction ; and one of those courts is the supreme tribunal of the nation ; one peculiarly entitled to the highest consideration and respect of all other courts of law. It may be proper to observe that the learned Chancellor Kent, in his review of the'cases on the subject in Coster & al. v. Murray, (in which he expresses his own opinion,) has omitted the cases we have cited from Wilson, Dallas, and Crunch.
We have now done with the citation of authorities, and shall conclude with some general observations respecting the statute of limitations, and the construction that has been given to the different parts of it, and the changes of opinion which have taken place at different periods in regard to it. In the early part.of this opinion we alluded to this subject. In the beforementioned case of Martin v. Heathcote, Lord Northington decided that “ merchants’ accounts, after •‘sk-years discontinuance of dealing, were as much within the statute as any other accounts and in Barber v. Barber, Sir William Grant adopted and proceeded upon the same principle. In both these-cases the distinction between merchants’ accounts and others is abolished. With all due respect, we must say that this doctrine, if admitted, virtually amounts to a complete judicial repeal of the exception in the statute, and is in direct opposition to its declared intention, and to the unequivocal language in which the intention is *347expressed. It may be useful to take a glance at the different principles on which the different parts of the section of the act in question have been construed. For a long time we may perceive in the reports an evident effort on the part of judges to save actions from the effect of its limitations, though clearly embraced in the language of those limitations $ and at the same time to narrow the exception, and refuse protection to accounts and actions, distinctly embraced in the language of the exception. In both the foregoing instances the tendency and object of such decisions seems to counteract, and, to a certain extent, explain away both provisions of the statute ; to rescue accounts of one kind from the embraces of it, and subject those of another kind to its power and paralysing effect, though expressly placed beyond its control. In the case of Bell v. Morrison, 1 Pet, 351, Siory J. in delivering the opinion of the court, observes that “ it has often been a matter of regret, in modern times, that in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute ; that instead of being viewed in an unfavorable light, as an unjust and discreditable defence, it had received such support as would have made it, what it was intended to be, emphatically a statute of repose.” There was, at times, much ingenuity discovered in construing doubtful or unmeaning expressions into promises or acknowledgements; but as to merchants’ accounts, they were treated with little kindness or indulgence. As they are expressly excluded from the operation of the statute, we cannot perceive any thing hut the pure magic of construction which has been or can be prayed in aid, to place such accounts, while open and unliquidated, under the limitations of the act, and on the same level with all other kinds of accounts. There seems to be as much reason for regret on account of this construction of the exception, as was expressed by the court in the case of Bell v. Morrison for that which the statute itself, as to its limitations, had unfortunately received ; and we apprehend there is as much reason and good sense in correcting opinions which may be found to be erroneous as to one part of the statute as another 5 the object should be to ascertain the true intent and mean*348ing of both, and then with plainness and independence give them what we believe to be their intended operation and effect.
In respect to the restraining part of the statute, this has already been done. By a series of decisions, in England and in this country, former errors have been corrected ; and it is now perfectly settled that nothing short of an unqualified, unambiguous and explicit acknowledgement of an existing debt, by words or acts, will take a case out of the limitations of the statute ; and to preserve consistency in the application of principles., it is, in our humble judgment, proper to go back to the plain language of the exception, and rest contented with giving to it its legitimate operation. Under the influence of these impressions, and guided by the authorities and reasoning which we have presented to view in the investigation of this cause, we have been conducted to the conclusion, that the accounts between Waite and Dunn cannot, on legal principles, be considered as barred by the limitations of the act, by reason of the cessation of dealings between them more than six years before the commencement of the present action; nor by the death of one or both of them, as mentioned in the pleadings. In the state of the facts, and in our application of legal principles to those facts, it is of no importance to decide on whom the burden of proof was imposed by the form of the issue. The affirmative, however, seems to be on the part of the defendant. This leads us to the last point to be considered.
This third point, namely, whether the general question which we have been so long examining under the two former heads is open to examination on the special issue joined, has become of minor importance, in consequence of our decision of those questions, in the manner aboye stated ; because, if we were dissatisfied with the instructions given'to the jury, as to the effect of the special form of the issue, as being exclusive of the general question, still it would be no ground for setting aside the verdict, when the legal principle aiid legal result would be the same under any form of the issue. But we do not perceive any incorrectness in the instructions given on the point. The question on the pleadings was whether the accounts had been liquidated and closed more than six years before the commence-pient of the action. And, as the judge observed, it was the duty of *349the defendant to establish the truth of the affirmative to the jury ; this he undertook to do. A liquidation of an account cannot mean any thing less than a statement and adjustment of it by the parties interested ; and this question, whether the account had been so liquidated and closed, was a question of fact, and properly referred to the jury for decision ; whereas, the question, whether a cessation of dealings for more than six years, or the death of one of the parties, subjects merchants’ accounts to the limitations of the statute, is a question of law; and the pleadings in the case disclose all the facts necessary to present those points to the view of the court. Upon examining the cases which have been cited and commented upon, in the course of this opinion, it will be found that no such special issue was joined as in the case at bar. In the cases in the courts of law, the discontinuance of dealings was alleged in some part of the pleadings ; and the effect of it for more than six years, became the subject of inquiry and decision upon demurrer ; and in chancery cases, sometimes the fact appeared on the bill, and sometimes in the answer ; but no case has fallen under our observation which presents an issue of fact on the contested question of liquidation and adjustment. The parties in this case have formed their own issue ; but the jury have discovered no evidence which could authorize them to find that issue in favor of the defendant.
The great degree of interest which this cause, in all its stages, has excited on the part of those immediately engaged in it, and the unusual length of the argument of the defendant’s counsel, as well as the number of questions made on the exceptions and in the ample discussion of all the merits disclosed to us, have led the court to a full examination of the whole subject in all its bearings ; and after a long and wearisome investigation of facts and authorities, and careful attention to the arguments of counsel, we are all of opinion that the defendant has not succeeded in sustaining either of his motions: and the consequence is that there must be
Judgment on the verdict.
See Dole v. Hayden. 1 Greenl. 152.