The opinion of the Court was delivered by
Prentiss, J.The report of the auditors contains a statement of the testimony, given on the one hand to impeach, and on the other to support, the credit of the intestate’s book ; but as the auditors were the proper judges of the weight of this, as of all the other testimony heard by them, their opinion upon it cannot be made the ground of an exception to their report. It is the province of auditors to find, and their duty in all cases, if requested, to report, the facts proved by the evidence laid before them ; and it is not the practice of the Court, in reviewing their proceedings, to rejudge the case upon the testimony, but merely to correct such mis* takes in law, as may have been committed in the admission or rejection of evidence, or as shall appear from the accounts and facts reported by them.
It appears that the accounts between the intestate and the appellant, embraced mutual dealings and mutual credits, continued down,-without any long intervention of time between the respective items, to a period within six years. The clause in the statute of limitations of this state, concerning accounts, is almost a literal transcript of the provision on the same subject in the English statute of 21 Jac. 1 ; and it is proper to hold, as was undoubtedly intended, that the former is to receive the same construction, and be subject to the same principles, which had been adopted in relation to the latter. It was settled by adjudged cases before the enactment of the law of this state, and the doctrine has been confirmed by subsequent decisions, that where there are mutual, cur*373rent, and unsettled dealings and accounts between parties, if any of the items are within six years, the whole accounts are taken out of the statute. — 2 Saund. 127, n. 6, Cotes vs. Harris.— Bull. N. P.149.— Cranch vs. Kirkman,Peak’s cas., 164. — Catling vs. Skoulding, 6 T.R. 189. — The same principle has been adopted in this country.— Cogswell vs. Dolliver, 2 Mass. 217.— Davis vs. Smith, 4 Greenleaf’s Rep. 337. — Coster vs. Murray, 5 John. Ch. Rep. 622. — Murray vs. Coster, 20 Johns. R. 576. —These authorities are quite sufficient to shew, that the exception to the report, founded upon the statute .of limitations, was properly overruled by the court below.
The intestate’s account consisted, in part, of various charges, to a considerable amount, for liquors sold by him, as an in-keeper, by small measure; and the auditors, notwithstanding the appellant’s objection, allowed the whole amount of the charges for liquors, by setting off, or applying in payment, so much of the appellant’sjaccount, as was sufficient to balance them. The statute (comp. stat. p. 135, s. 3,) declares, “ that no action on book, or verbal contract, shall be sustained, in any court in this state, for the recovery of a greater sum than one dollar and fifty cents,for liquors sold and delivered by small measure, by any inn-hold or tavern-keeper, within this state.” Thistct, as[Lord Kenyon observed, in Jackson vs. Athill, Peake’s case, 165, of the act of 24 Geo. II. was made for the purpose of preventing the pernicious effects of dram-drinking, which had been found extremely injurious to the lower classes of society. It is certainly a very beneficial law, and to prevent the mischiefs intended to be remedied by it, it should be rigidly applied and enforced in every case coming within it. It is very clear that no recovery could be had, in a direct way, for that portion of the intestate’s account, which consisted of charges for liquors sold, exceeding the sum of ,f 1 50,because such recovery is expressly prohibited by the act; and it is not stated or pretended, that there was any evidence before the auditors, that the articles in the appellant’s account were, at the time of delivery, or indeed at any subsequent time, applied, or agreed to be applied, in payment of the charges for liquors in the intestate’s account. But it is insisted, that the articles in the appellant’s account may be considered as having been delivered in payment generally of the intestate’s account, and that the representative of the intestate had a right to have them applied in payment of any part of the account he chose. It was said by Abbott, Ch. J. in the case of Wright vs. Laing, 3 Barn. & Cres., 165, that where'a person has two demands, one recognized by law, the other arising on a ¡matter forbidden by law, and the debtor makes a payment which *374is not specifically appropriated by either party at the time of the payment, the law will afterwards appropriate it to the demand which it acknowledges, and not to the demand which it prohibits. As the articles delivered by the appellant were charged generally in account,and no specific application had been made of them by the parties, they remained, with the rest of the accounts, to be adjusted and settled as the law required. To apply the articles in the appellant’s account in offset to,or extinguishment of, the charges for liquors in the intestate’s account,as was done by the auditors,would be in effect,to allow the representative of the intestate to'recover the[amount of the account for liquors. This would be a palpable evasion, if not a direct violation of the statute ; and we are very clear that the exception taken to the report on this ground, ought to have been sustained.
Fish and Smith, for appellee.. Brown, for appellant.Judgment reversed.