The defendant contends that, though his account was barred by the statute, he had the right to prove it, so .far as to balance and defeat the note. But such a distinction would operate a repeal of the statute. The instruction given to the jury was right, and this is decisive of the whole case.
It is however said the law will appropriate the account to the payment of the note. But they were independent claims ; having no connection with each other. To make such an appropriation would be making agreements for the parties. The law does not do it, neither does it presume, after any length of time, that the plaintiff had made such an appropriation. As to the Judge’s remark that there did not appear to be any proof of defendant’s money in the hands of the plaintiff, it is to be noted that the parties were jointly interested in the ship. In all dealings on that subject, the balance is to be found, before one can be considered as having the other’s money. But if not so, such a fund is but an independent matter, of which the law makes no appropriation.
Exceptions overruled.