— The only question raised when this cause was here at a previous term, was, whether the indorsement of the defendant on the plaintiff’s account, was an admission that the excepted item of five hundred and twenty dollars was a proper charge, and a waiver of the statute upon the plaintiff’s making proof of its correctness. We then held that there was nothing that amounted in law to such a promise; that so far from this being the case, the acknowledgment amounted to a protestation of the injustice of the demand, and a consequent unwillingness to pay it. The case is now presented in an aspect very different, and although our previous decision, so far as applicable, must be regarded as decisive, yet it cannot be held to exclude all evidence, except such as was offered upon the first trial, or to prevent either party from raising other legal questions applicable to the proof. To hold otherwise, might operate great injustice, more especially to the plaintiff below. On the first trial, the Court instructed the jury that the indorsements on the accounts, if proved, were sufficient to take the contested item out of the statute of limitations; and if the defendant was bound by the order, the statute should not apply to it, when it did not to the rest of the account. Here was a charge so favorable to the plaintiff, upon the law, that it was calculated to induce the belief he would, (as in truth he did,) obtain a verdict. Acting under this impression, his counsel *609may have thought it most prudent not to ask an instruction touching the statute, if the five hundred and twenty dollars were regarded as a payment instead of the advance of money. But this question is now distinctly raised, both upon the evidence, and the charge of the Court, and its decision cannot be avoided.
It is admitted, or rather is not denied, by the defendant’s counsel, that if the disputed item was a payment of a part of the sev en hundred dollars, placed by the defendant in the intestate’s hands, that it gave to the latter no right of action for its recovery. This is certainly the law, so long as their accounts remained unsettled. And in such case it is equally clear, that the statute of limitations could not so operate as to prevent the intestate from claiming the benefit of it on settlement. For the statute applies only to causes of action, and then only after the right to sue has accrued. This is a proposition so plain that it does not require the aid of authority to support it.
The manner in which the accounts of the parties appear to have been stated, by a mutual friend, does not conclusively bind the plaintiff to treat the disputed item as a charge against the defendant for money lent; but it may be considered, either as a loan, or a repayment, according as the facts may show it to be the one, or the other. The account of neither party seems to have been drawn with a particular regard to mercantile forms, and to hold either strictly bound by the terms in which their accounts have been stated, would be unreasonable, and cannot be allowed, where the ends of justice would be in any manner affected.
The ruling of the Circuit Court seems to us to have been authorized by the evidence, and is in conformity with the views we have expressed. The judgment is therefore affirmed.