
    Nichols v. Leavensworth.
    In the Court below,
    Wn.Ltax Leavensworth, Plaintiff: John Nichols, Defendant.,
    
    ,Xn an action of book debt, the plaintiff may exhibit an account of more than sis years3 standing, to countervail the ec-•count of the .defendant, for articles delivered within six years*
    «feryoi SÚU - vi.m ...o hut tí ■ X HIS was an action of book debt. , . -.v
    I he general issue was pleaded, and auditors appointed. They reported, that at the hearing before them, the parties exhibited their books, and the charges therein made, within six years from the service of the plaintiff’s writ; and the plaintiff claimed, that sundry of the charges of the defendant were for articles delivered, and services rendered, by the defendant, in favor of the plaintiff, to the amount of 49/. 11c. 8d. in payment and satisfaction of good and legal claims, which the plaintiff, at the time of such service, and the delivery of said articles, had, upon book, against the defendant, previous to said six years ; and, that said articles and services were received bv the plaintiff, and by the plaintiff and defendant applied, in satisfaction of such the plaintiff’s claim on book, against the defendant. The plaintiff, therefore, prayed, that such charges of the defendant, to that amount, might be disallowed, and that the books of the plaintiff and do fendant might, be examined, and the parties examined, on oath, relative to said claim. This was objected to bv the defendant, and the objection overruled by the auditors, The parties and their books were, consequently, examined, relative to said claim ; and the auditor"; found, that the charges of the defendant, to the amount of 49/. iis. 8d. were so rendered, delivered, and received, and were so applied by the plaintiff, without any directions given, or objections made, by the defendant. Wherefore, they disallowed that sum from the <lc ■ mands of the defendant, ar.d found the defendant in ar-rear $444 12.
    1804.
    To this report the defendant remonstrated, and for cause assigned, that the same was insufficient in the law. The Court accepted the report, and rendered judgrpent for the plaintiff.
    
      Daggett, for the plaintiff in error.
    
      Leavenstvorth sues Nichols on book ; Nichols exhibits the account, which he has within six years ; Leavens-worth claims, that previous to six years, he had charges against Nichols, and they ought to be enquired into ; and the auditors find that the plaintiff, without any directions given, or applications made, by the defendant, did apply these charges of the defendant to his old account. The 'statute, so far as it is -applicable to the present case, is, “ that all book debts, that shall not, within six years after the contracting such debt, be “• either sued for, balanced, or accounted for with the “ original debtor, his attorney, agent, or other lawful “ successor, or substitute, and an account or balance “ thereof witnessed, by subscribing the debtor’s or ac-a countant's name to the creditor's book, such debt shall u not be recoverable in any court in this State,” 
    
    It cannot be contended, that this account is within the exceptions of this statute. It was not sued for, accounted for, nor was an account subscribed.
    It must, then, have been allowed, because Leavens-ivorth made a charge, and Nichols soon alter delivered articles ; and one of the panics chose to consider this as balancing the accounts, without any agreement of the other.
    This case is within the mischiefs, which the statute was designed to prevent. It is unreasonable, that after this length of time, the parties should, by their own oaths, enforce such claims.
    There can exist no difference between this case and one where the plaintiff claims to recover for articles delivered more than six years since. The lapse of time must have the same effect upon the memory, in one cáse, as; ⅛ the other ; and the testimony of the parties is «titkled to equal weight, in both cases.
    ⅞⅞&⅜ «nd',fwíf/i,^(of:Sew-Ilaye the defendant in error.
    
      It is certainly questionable, whether an award of auditors can, in this way, be impeached ; but we are ready to meet the question, as if fairly before the Court.
    This statute must be construed according to the intention of the legislature, who enacted it, and is not to be extended. There is nothing in the statute prohibiting an enquiry like this. The statute only prevents a recovery of such debts. From the award it appears, that wc have not recovered for any such articles, as were not delivered within six years. Nichols had a right to direct the application of the payment ; but if he did not do it, the other party had a right to direct it.
    The auditors had aright to examine whether the account of the defendant was not due ; and this couid not be determined without examining the whole account between the parties. When the articles in controversy were delivered by Nichols, there was nothing clue to him ; and a debt cannot be created, by length of time.
    Suppose A. delivers 13, Í 004 and, the next week, B. returns it ; can B. as soon as six years have elapsed, bring a suit against .A. and recover the 1004 he delivered him? Or, suppose in this case, Nichek'nnd sued Leavensworth for 494 and Leavensworth had no claim { could not Leavensworth show his book to prove, that these articles were delivered by Nichols, to cancel a claim against him ? If this is not allowed, no one will be safe. '
    The principles of the statute are not violated by this construction ; former precedents are sanctioned; and perfect justice is done.
    
      
      Echvards, (ofNew-Haven) in reply.
    The statute respecting book debt  is of such a nature, and such strange «instructions have been put upon it, that it ought tobe restricted.
    At the time of the emigration of our ancestors, there was no statute of set-off. The third section of the statute concerning book debts operates as a statute of set-off ; and also permits the defendant, if his claim surmounts the plaintiff’s to recover the balance. Suppose this were a mere statute of set-off; an account more than six years old could not be set-off: for nothing can be set-off, but what may be recovered.
    The legislature have determined, that no book charge shall be recovered, after six years, for the purpose of cut ■ ting up stale demands, and to prevent the mischiefs arising from forgetfulness. To make the remedy commensurate with the evil, it must be extended to cases like this. Upon the principle, which the auditors have adopted, Leavennuorth may bring in an account more than, six years old, to balance the account of Nichols. Nichols may then bring in an account still older to meet that; and thus the enquiry may be extended to the accounts of the whole lives of the parties.
    
      
       Stat. 136.
    
    
      
       Stat. 135
    
   By the Court,

The judgment was affirmed.  