
    Davis, Appellant, v. Tiernan & Co.
    By the 4th section of the statute of limitations, Revised Code, 148, which declares that all actions shall be commenced and sued within six years, except actions for slander, a/nd except also, such actions as concern the trade of merchandise between merchant and merchant, it was not intended to save from the operation of the statute, an account for the sale of a single lot of goods, however large. The exception is confined to open and current accounts, where there are mutual dealings and mutual credits.
    An account stated is as effectually within the operation of the statute of limitations as a promissory note.
    Whether an account presented in evidence be an account stated or not, is the province of a jury to determine from the facts.
    An account stated is defined to be an agreement between both parties, that all the articles are true.
    It is a violation of the statute for a judge to instruct the jury, unless the instruction is called for by one of the parties.
    It is error to proceed to judgment against a defendant, when the writ has not been served on his co-defendant; process must be pursued against the party not found until he is taken, or the cause be dismissed as to him.
    APPEAL from the Warren circuit court.
    This cause was tried before the Hon. George Coalter at the March term of said circuit court, 1837. It is sufficiently stated in the argument of counsel, and the opinion of the court.
    Holt, for appellant.
    This was an action of indebitatus assumpsit for goods, wares and merchandise, sold in 1816, in Baltimore, by Luke Tiernan and his deceased partner, to Joseph E. Davis, Michael Tiernan and Patrick Tiernan, merchants, then doing business in copartnership in the state of Mississippi. The death of the defendant, Michael Tiernan, was suggested, and the suit as to him abated. The writ was returned “not found” as to Patrick Tiernan, and no further notice seems to have been taken of him in the progress of the case. The remaining defendant, (no\y appellant,) Joseph E. Davis, appeared and filed two several pleas of the statue of limitations; 1st, non assumpsit infra tres artnos; 2d, non as-sumpsit infra sex annos; to each of which pleas the plaintiff replied, that “ the moneys sued for became due and payable on trade between plaintiff and defendants as merchants, and wholly concerned the trade of merchandise.’7 Defendant filed rejoinders, traversing the averments of the replications, and concluded to the country. On 'the issues thus made up, there was a verdict for the plaintiff for 6,401 dollars, 90§ cents, and judgment thereon; from Avhich judgment the defendant 'has appealed to this court.
    The first error assigned questions the correctness of the opinion of the court in refusing to charge the jury at the instance of the defendant, 1st, “ That if they believed the account sued on, in this action, is for goods, wares and merchandise, sold and delivered by the firm of Luke Tiernan & Co., to the firm of Joseph E. Davis & Co., in the year 1816, that then they must find for the defendant, unless they believe, from the evidence before .them, that at the time of the sale and delivery of said goods, &c., there were mutual accounts current, consisting of reciprocal demands between the firms of Luke Tiernan & Co., and Joseph E. Davis & Co. as merchants;” and 2d, “that if they believed the account as sued on was by plaintiff’s agent presented to the defendant for payment, in the year 1825, and that defendant then admitted said account to be correct, and that the firm of Joseph E. Davis & Co. stood, indebted to the firm of Luke Tiernan & Co., as charged in ■said account, and that said admission was then acqxiiesced in by plaintiff’s agent, that such admission and acquiescence made it an account stated, and as such it is not within the exception contained in the statute of limitations, in favor of such accounts as concern the trade of merchandise between merchant and merchant, and they must find for defendant.”
    It is believed that each of these charges, as asked for by defendant, and overruled by the court, contain sound legal propositions, applicable to the facts of the case, and should have .been given to the jury.
    The account sued on is stale, being upon ordinary principles more than thrice barred by lapse of time. It is sought to protect it from the operation of the statute of limitations, by bringing it within the exception in favor of such actions as concern the trade of merchandise between merchant and merchant. Our statute of limitations (at least this clause of it) is borrowed from the English statute of 21 Jac. 1 c. 16, from which it differs but slightly in its verbage; in substance and in spirit it is the same. See2 Saunders, 125. Upon that statute, which most of the American states, in common with Mississippi, have adopted, the decisions have been uniform, that to bring a case within the exception in favor of such actions and accounts as concern the trade of merchandise between merchant and merchant, “ there must be mutual accounts and reciprocal demands between the parties.” See Buller’s N. P. 149, 150; Peake’s N. P. 121; 6 Term Rep. 193; 2 Saunder’s, 127, (note 6;) 2 Tucker’s Commentaries, 150, 151; 1 Robinson’s Practice, 101, 102, 103; 4Bibb; 5 Johns. Chan. Rep. 523, 524. The last authority cited contains an elaborate examination of the exception in the statute in favor of merchants’ accounts, and fully sustains the position contended for. The charge asked for by defendant was in the language of the most distinguished judges who have given their opinions upon the question, yet it was peremptorily refused. It was not urged, or pretended, that there was or had ever been an account current between plaintiff and defendant, or that there were or had ever been mutual or reciprocal demands between them. On the contrary, it is clear, from the testimony, that the demand was all on one side, growing out of a single dealing, an isolated purchase of one lot of goods; a case neither within the letter, spirit or policy of the exception in favor of dealings between merchants. The very phraseology of the statute, and of the replication, “ trade of merchandise between merchant and merchant,” and “wholly concerned the trade of merchandise,” imports of itself necessarily mutuality of dealing, and has reference to current, complicated accounts. The difficulty of making prompt and regular settlements of intricate mercantile accounts, and the confidence which these reciprocal running demands implied, were among the strongest reasons for the exception in the statute— reasons which certainly can have no application to a single ex parte claim, like that under consideration.
    
      It is equally clear from the authorities quoted, and many others to which reference might be had, that even where there are such mutual and running accounts between the parties as to take the case out of the operation of the .statute, yet so soon as those accounts have been stated, they are no longer embraced by the exception in the statute. Vide 2 Saunders, 127, note; 5 Cranch, 18-19; 2 Mod. 311; Angel on Limitations, 199, 202-3-4; 2 Tucker’s Commentaries, 150-1. The charge could not have been refused on the ground that it was abstract, because all the facts which it supposes, are established by plaintiff’s witness, Charles Tiernan. See his deposition, answer to the 19th interrogatory. These facts certainty constituted the account sued on an account stated. Vide Trueman v. Hurst, 1 Term Rep. 40, where Lord Mansfield says, “ an account stated, is an agreement between both parties that all the articles are true. Such an agreement between plaintiff’s agent and defendant, is distinctly proved by Charles Tiernan, to have taken place in 1825, twelve years before the institution of this suit. From that moment, the reasons upon which the exception in the statute is based, ceased to operate, and the exception itself had no further application to the case. Vide Ramchanderv. Hammond, 2 Johns. Rep. 200, where the supreme court of New York determined that the English decisions applied entirety to their own statute, notwithstanding some slight variation in the phraseology of the act; and that the exception in the act applied only to open and current accounts, and not to accounts stated. The case cited shows that the language of the New York statute and ours is the same. The language of the New Jersey statute is the same as ours, and the courts there have maintained the position here assumed. 7 Halsted, 345. It may be insisted by plaintiff, that the fact of the account having been stated, should have been set forth by way of rejoinder to his replication, and that under the issues as made up, the testimony as to the statement of the account was irrelevant. This evidence was rmluntarily offered by himself, was not objected to, and was not ruled out; the plaintiff cannot then complain of any consequences it may bring upon him, But to require the defendant to plead that the account had been stated, and, therefore, not within the exception, would be requiring him to plead not facts, but the evidence of facts. It would tend to load the record with recitals of testimony, instead of making it as it should be, a mere chart, by which the subsequent introduction of that testimony is to be regulated. The case stands thus: Plaintiff replies, that his action is not barred because it concerns the trade of merchandise, &c. He does not reply the evidence which can alone support this averment, to wit, that there were mutual running accounts between the parties, &c. The defendant rejoins — What? not that there were no mutual and running accounts between the parties, but he rejoins, that the action does not concern the trade of merchandise, &c., and introduces as his evidence to support his rejoinder, that there were no mutual running accounts, &c.; all the precedents show this to be the form of pleading.- According to the authorities, a statement of the account takes the case out of the exceptions in the statute as conclusively as the fact that the demand is all on one side. Why shall the defendant be required to plead his evidence in one case •and not in the other? Why may he not rejoin that the action does not concern the trade of merchandise, &c., and support his rejoinder by proof of an account stated, as well as make the same rejoinder, and sustain it by evidence, that the demands were all on one side; that there are no reciprocal running accounts? The case seems to me precisely analogous. I think the rejoinder in this case was fully supported by the testimony .of Charles Tiernan, that the account sued on had been stated twelve years before the institution of the suit. In 8 Pickering, 187, the issue was the same as in this case, and the court unhesitatingly allowed under it an inquiry whether the accounts had been stated or not, and admitted that if stated, they were not within the exception.
    • The second assignment of errors questions the charge of the court to the jury, “ that if they believed the account sued- on was originally just, and had not been paid, they must find for the plaintiff.” A more sweeping and arbitrary charge was probably never given by a judge in this country. It was wholly erroneous, because unasked for by either party. The statute of 1833, organising the circuit courts, prohibits a circuit judge in the strongest terms, from charging the jury, unless upon points on which his opinion is prayed by one of the parties. The original justice of the claim was not disputed; no payment of it was pleaded or pretended. To charge the jury, then, that if it were originally just and had not been paid, they must find for plaintiff, was in effect an absolute instruction to them so to find. It was malting a verdict for them, and commanding them to return it as fashioned and moulded by the court. Such an abrupt and heedless invasion of the rights of juries cannot be more severely rebuked by this court, than it is by our statutes, and the spirit of our government.
    The third assignment of errors questions the correctness of the opinion of the court “ that the facts proved, did not constitute the account sued on, an account stated. I have already endeavored to show from the definition of an account stated, as given by Lord Mansfield, that the facts proved by Charles Tiernan did constitute it an account stated, in the most professional and technical acceptation of that term. But even if in this I should fail, it was manifestly erroneous in the circuit judge to assume - upon himself the right of deciding what had been proved to the jury. Of this they were the judges. He should have charged hypothetically, “ If they believed so, &c., they should find,” &c. He should not have substituted his belief for theirs. The statute forbids him to comment upon the weight of the evidence; yet here he not only commented upon its weight, but determined what the evidence proved, and what it did not; thus relieving the jury of all labor, and stripping them of all rights and power in the case. 2 Dana’s Rep. 222.
    The fourth error assigned is, " that the court erred in rendering final judgment against the defendant Joseph E. Davis, without the suit having been disposed of, by discontinuance or otherwise as to the defendant Patrick Tiernan.” This is an error so obvious that authority need scarce be cited to expose it. The principle, however, will be found fully recognised in the following cases. 3 Monroe, 205; 3 J. J. Marshall, 432; 2 Bibb, 596.
    Harrison, for appellees.
    The assignment of errors presents several questions, the most of which are technical in their character, all of which I shall notice, however, but will direct the attention'of the court principally to the main question growing out of the issues joined by the parties below.
    I will first notice the fourth error assigned, as that does not relate to the merits of the action.
    1. “The court erred in rendering final judgment against the defendant Joseph E. Davis, without the suit having been disposed of as to his co-defendant Patrick Tiernan.”
    It is true that the record does not show a discontinuance as to Patrick Tiernan. The writ as to him was returned “ not found,” and no other writ was sued out; as to him, therefore, the prosecution of the suit in point of fact terminated. There was, to be sure, no technical discontinuance entered upon the record; but there was a discontinuance in fact; for no other attempt rvas made to bring him before the court, or to charge him with the debt.
    The writ was served upon Davis. He appeared and made defence, filing pleas for himself alone. Upon the pleas thus presented by him, issues were made up, and without any objection on his part, there was a full and fair trial upon the merits before a jury. Upon that trial, there was a verdict against him, and now he objects, not because there was not a fair and full trial upon the merits; but, because the plaintiff below omitted to have the technical order of discontinuance entered upon the record, although in fact the plaintiff had discontinued the further prosecution of his suit against Patrick Tiernan.
    Now, does the justice of the case require the reversal of the judgment below, because of this omission? Was the defence of Joseph E. Davis prejudiced by this omission? Why did he not at the time of the trial raise this objection? If he had then raised the objection, the court would probably have compelled the plaintiff to continue this suit or to make upon the record an entry of discontinuance as to Patrick Tiernan. But Joseph E. Davis made no objection to a trial, as the cause then stood. He relied upon his defence as he had presented it, without the aid of Patrick Tieman, and if upon such defence there had been a verdict in his favor, there would have been no error in the record.
    But it will be recollected by the court that the statutes of this state make all the contracts of partners several as well as joint. The plaintiffs, therefore, had a right to institute the suit against Joseph E. Davis alone as upon his separate assumpsit.
    This being the case, it seems to me that the spirit and reason of the statute authorise the plaintiff to treat the suit as several, during any stage of the proceeding, and to take his judgment accordingly, except where the defendant would by such a course be taken by surprise, or would in some respect be prejudiced thereby. Especially should the plaintiff be permitted to pursue this course in cases where' the defendant, so proceeded against, does not object, but manifests, upon his part, an entire willingness to abide the result upon the issue, just as though the suit had been originally commenced against himself alone. Adopt a different rule and you give to the defendant this great advantage, to wit; he cannot lose, but may gain by a trial of the cause under such a state of fact. He cannot lose, because if the verdict be against him he will reverse the judgment because of the omission to discontinue, by entry upon record, the suit as to the other defendant. And he may gain, because a verdict in his favor would be a perpetual bar against the plaintiff.
    Suppose a suit were brought upon a promissory note against two joint and several obligors; the writ is executed upon both; the one makes default, the other pleads as to himself, non est factum; may not the plaintiff take judgment against the one in default, and proceed to trial upon the plea of the other? and if the parties be not ready for trial upon the plea, may not the cause as to him be continued and tried at a subsequent term? most certainly, it seems to me. If that course may be pursued in the supposed case, why may not the same course be pursued in the case now before the court? for in principle there is no difference between the two.
    Not only have the statutes of this state changed materially the nature of contracts, and, of course, the manner of proceeding upon them, but they have gone great lengths toward suppressing those technical and captious objections which tend to defeat rather than promote the ends of justice. Here was a full trial before a jury of twelve men. Such trials are favored by our whole code; the object of all our statutes on the subject being to give stability and permanency to such verdicts and judgments, except where from the record, it is manifest that some error has been committed to his prejudice, against whom they are rendered.
    There may be error as assigned, if viewed wholly as at the common law, fenced around and guarded as it is by a thousand technicalities. But will this court, with all our statutes before-it, say that the omission now complained of, is such error to the prejudice of Joseph E. Davis, as that the law, as we now have it, and the justice of the case, call for and demand a reversal for that reason alone, of the judgment below?
    The second error'assigned is, that the court erred in charging the jury, “ that if they believed the account sued on was originally just and had not been paid, they must find for the plaintiff.” Such charge being uncalled for by either plaintiff or defendant.
    This instruction must be regarded either as an abstract proposition, and therefore not assignable for error; or it must be considered with reference to the issues and'the proof before the jury; The issues between the parties were in substance, “ whether the accounts sued on accrued between them as merchant and merchant, and wholly concerned the trade of merchandise or not?” The proof was introduced on the part of plaintiff alone; none was offered by defendant. There was no contrariety in the testimony; it all conduced to establish the original indebtedness; that the parties were merchants, and that the articles sold were goods, wares and merchandise; upon the above issues and the proof, the instruction complained of was given. That the charge was correct, if considered with reference to the state of facts then before the court, Iexpectffo make manifest when discussing in a subsequent part of this argument, the principal question presented by the issues.
    The third error assigned, is in these words; “ The court erred in charging the jury that the facts proved, did not constitute the account sued on, an account stated.” Now it seems to me to be the province of the court to decide whether the facts proved, amount to a stated account. It is a technical expression, and juries are not presumed to be acquainted with its meaning. Whether a paper offered in evidence, amounts to a deed or not, is a question of law; so of a promissory note, or release; the facts being established, the court must say what grade the law assigns to them. Juries never ascertain conclusions of law; they ascertain facts; the conclusion of law upon them is drawn by the court. The fact here was ascertained by the evidence of Charles Tiernan, in his answer to the nineteenth interrogatory. The fact as proved by him, was before the court, and uncontradicted, and the court had, it seems to me, the right to say whether the fact so proved, amounted in law to a stated account or not; for the same reason that a court has a right to say whether a paper offered is a bond or not, that being a question of law to be decided by the court, not by a jury.
    But did the court err in deciding, that the account, as proved, did not amount to a stated account? For, unless the court erred in that opinion, the judgment can be reversed, because he claimed and exercised the right of expressing it. What do we mean by a stated account? We mean a balance struck upon a mutual accounting between the parties, and an acknowledgment that such balance is due by the party against whom it appears. The court will see that all the forms of declarations, upon an account stated, charge in substance, that there had been such accounting between them; that upon such accounting, the balance sued for was admitted by the defendant, as due, &c. &c. Here there was no such accounting; the account was wholly on the one side, and when presented by the witness, Charles Tiernan, for payment, the defendant would make no promise of payment, though he admitted its correctness, but objected to a settlement of it, because his partners had undertaken to pay all the debts of the concern. Can it be contended ^ with any reason, that this loose admission accompanied with a refusal to settle, raised the account to the dignity of a stated account? Parties are estopped by an account stated, as much as by a promissory note. The plaintiff is not in either case bound to prove the original consideration, or to prove the items of the account. The defendant, on the other hand, is not permitted to controvert the correctness of an account stated, unless he can show that the account was stated under the influence of some mistake or fraud. Now, was Joseph E. Davis so estopped by the loose admission spoken of, as that he would not be permitted to go into the various items of the account, upon a trial of the case? Surely not.
    But again; suppose the suit had been brought upon an account stated, and there had been no other evidence before the court of an account stated except the loose admission made by Davis to the witness, Charles Tiernan; would not the court have been bound to instruct the jury that the evidence did not support the declaration? It seems to me that the court should so have instructed the juiy. .1 suppose, therefore, that the court did not err in charging the jury that the facts proved did not make the account an account stated.
    I now come to the first error assigned, viz: “ that the court erred in refusing to charge the jury as asked for by the defendant.”
    The instructions referred to in this assignment of error will be found in the bill of exceptions. I will in the first place notice the second instruction asked for and refused. This second instruction is predicated upon the fact that the account sued on became, by the admission before spoken of in 1325 a stated account, and that from the time of such statement of the account the statute of limitations commenced running, and that therefore the account is now barred by lapse of time.
    If the view which I have already taken of this branch of the subject be correct, then of course the court did not err in refusing to give this instruction. But there is a different view of this subject which I will now present, from which it seems manifest to me that this instruction should not have been given. No rule of practice is better settled than that proof must be relevant to the issue joined, and any instruction given must be predicated upon such proof and be in like manner relevant to the issue. If proof be in the cause not pertinent to the issue, the party against whom it appears should move to exclude it, and such motion would be sustained by the court. In like manner any instruction asked for should be refused, unless such instruction be predicated upon proper evidence and be pertinent to some issue submitted to the jury. Now, bearing in mind these rules, I think I can maintain without difficulty that even if the account had been a stated account, yet the instruction asked for should have been refused! because there was no issue before the jury upon which such a question could be presented.
    The questions properly arising in a cause can only be ascertained by an examination of the pleadings: the great object of pleading being to evolve some question upon which the whole controversy may be determined.
    Now I contend that no part of the pleadings presents the question as to a stated account: the declaration does not present it; for it is filed upon an open and unsettled account between the parties: the pleas do not present it; for they are, 1st, the general issue; and 2dly, the statute of limitations. To the pleas of the statute of limitations the plaintiff replied the exception in favor of accounts concerning the trade of merchandise between merchant and merchant. Now the defendant could, by his rejoinder, have presented the question as to a stated account. He might have rejoined that after the making of said account, to wit, on the day of ,1825, there was an accounting between him and said plaintiff, and that upon such accounting the sum sued for was found to be due and coming from said defendant to the plaintiff, and that more than five years had elapsed since the time of such accounting. Such a rejoinder would have fully presented this question. The defendant, however, failed to present such an issue: he took issue upon the replication of the plaintiff. He merely denied, by such issue, that the account sued on accrued between them as merchants and concerned the trade of merchandise.
    Now, for the purpose of more distinctly illustrating the idea I wish to present, I will merely suggest that the whole science of pleading is based, 1st, upon general rules; 2dly, upon exceptions to general rules; 3dly, upon exceptions to exceptions to general rules, and so on.
    Now, the general rule is, that a plaintiff may recover of defendant the value of goods,, wares and merchandise sold to him; and therefore he files his declaration, setting forth this general fact. The first general exception, however, is, that you cannot recover unless you shall sue in a given time next after such goods, wares and merchandise were sold; and therefore the defendant pleads this exception by relying upon the statute of limitations. There is, however, an exception to this exception in favor of accounts between merchant and merchant, and therefore the plaintiff brings his case, by replication, within the benefit of this exception. There is, however, a further exception, which the defendant may avail himself of or not, at his pleasure, viz: that though the account was originally between merchant and merchant and wholly concerned the trade of merchandise, yet there has been, since the accrual of this account, a settlement between the parties, and upon such settlement the money sued for was found and admitted to be due by the defendant to the plaintiff, and that more than five years have elapsed since the time of this settlement. If the defendant, by his rejoinder, had brought himself within the benefit of this last exception as he might have done, the question now urged would have been directly and distinctly presented. The defendant, however, failed to rely upon this exception by way of rejoinder, and therefore lost the benefit of this question. He took issue upon the plaintiff’s replication, which presents only this solitary question, viz: whether the said account accrued between them as merchants and wholly concerned the trade of merchandise or not. This being the issue made up between the parties, the defendant had no right to raise any question calculated to withdraw the jury or the court from the consideration of that issue: any instruction offered by him having that tendency was properly overruled.
    I shall now proceed to notice the main question. The defendant pleaded the statute of limitations. The plaintiff replied, admitting, in substance, that more than five years had elapsed since the accrual of his cause of action; but for the purpose of avoiding the effect of this admission, averred that the account accrued between him and defendant, as merchant and merchant, and wholly concerned the trade of merchandise. Upon this the defendant took issue, thus presenting to the jury and the court a single proposition. Upon this issue the proof was full and clear for the plaintiff, and the jury returned their verdict accordingly.
    The defendant below objected, that the account sued on was not an account between merchant and merchant, inasmuch as there were no mutual accounts current between them consisting of reciprocal demands. The court overruled this objection, and this leads me to a consideration of the first instruction asked for by the defendant.
    • To bring an account within the benefit of this exception of the statute, is it necessary that there should be mutual and reciprocal demands between the parties? I contend that it is not, and I think I am sustained in this position, not only by the fair construction of the statute itself, but by the courts also. It will be remembered that at the common law there was no bar by lapse of time. Lapse of time might, to be sure, be relied upon as evidence of payment or satisfaction, but could not be pleaded in bar. To remedy the evils growing out of this state of things, statutes of limitation were passed. A case not embraced by the statute stands, of course, as at the common law. Our statute in the Revised Code, 184, contains this exception: “ Except such actions as concern the trade or merchandise between merchant ■and merchant, their factors, agents, and servants.”
    By what reason, with that exception before us, can it be contended that the accounts embraced by it are only such as are mutual and reciprocal between them? As I understand it, the parties must be merchants, the cause of action must concern the trade or merchandise between them. Then why is not the present case within the exception? The parties were merchants and the cause of action arose out of the sale of merchandise by the one to the other.
    The statute of Great Britain on the same subject is the same with ours, with the exception of a single word. We, by our statute, except such actions, &c. In England they except such accomits as concern the trade of merchandise, &c.
    In England there has been a great conflict between different courts as to the point now under consideration, although their statute uses the word account; some of their judges contending that the exception only embraced mutual accounts; others taking the position for which I contend under our statute. And even in that country, so late as 19 Vesey, 180, Lord Eldon declares the question as unsettled. I have heard of no adjudication upon it there since that time, and therefore suppose the question to be unsettled there even to the present day. For light upon the question we must turn to the statute itself, and to the construction put upon it by the American courts.
    I will first direct the attention of the court to the case of M’Clel-lan v. Crofton, 6 Greenleaf’s Rep. 388. The opinion of Chief Justice Mellen is full, and, as I think, very logical and able, reviewing the English and American cases. He maintains the position that accounts between merchant and merchant are not barred by lapse of time.
    In the case of Bass v. Bass, 8 Pickering’s Rep., the same question was raised and argued as is raised in the present case by defendant. Chief Justice Parker, in his opinion, says that the position there contended for “is not tenable,” it being the same objection now presented by the assignment of errors.
    In Kentucky the courts decide in the same way. See & I. I. Marshall, 544; 3 Monroe, 333.
    In Stiles v. Donaldson, 2 Dallas, 264, the same doctrine is held.
    In Mandeville and Jameson v. Wilson, 5 Cranch, 15, the same doctrine is maintained.
    We thus have not only the words of the statute admitting of a plain construction, and embracing by that construction the case before the court, but we have that construction sustained in the states of Maine, Kentucky, Pennsylvania, Massachusetts, and by the supreme court of the United States. Against this great array of authority we have the conflicting and unsettled decisions of the English courts and the opinion of Chancellor Kent alone. 5 Johns. Chau. Rep. 522. It is proper, however, here to remark, that the case in 5 Johnson was not decided upon the point now before the court, nor was the decree in the court of errors affirmed upon that ground, but expressly upon another. See the argument of senator Yeilie, in 20 Johnson’s Rep. 590, displaying great ability and learning, and sustaining the position for which I contend.
    In the view herein taken of the main question, then, it is manifest that the court did err in giving upon the whole case the instruction objected to in the second assignment of error.
    Before closing I will direct the attention of the court to the peculiar phraseology of our statute: “All actions (not accounts) concerning the trade of merchandise, &c., are excepted.”
    The present is an action between merchants, based upon a sale of merchandise.
    I must apologise to the court for this long argument. I thought it better, however, to give my argument in extenso, rather than the heads of argument.
   Mr. Justice Peat

delivered the opinion of the court.

This was an action of indebitatus assumpsit, for goods, wares and merchandise sold in 1816, in Baltimore, by Luke Tiernan and his deceased partner, to Joseph E. Davis, Michael Tiernan and Patrick Tiernan, merchants, then doing business in co-partnership in the state of Mississippi. The death of the defendant Michael Tiernan was suggested and the suit as to him abated. The writ was returned “ not found” as to Patrick Tiernan, .and no further notice seems to have been taken of him in the progress of the case. The remaining defendant, irow appellant, appeared and filed two several pleas, of the statute of limitations. First, Non assumpsit within six years, and secondly, Non assumpsit within three years. To each of which pleas the plaintiff replied, “ that the moneys sued for became due and payable on trade between the plaintiff and defendant as merchants and wholly concerned the trade of merchandise.” The defendant filed rejoinders traversing the averments of the replications, and concluded to the country. The plaintiff joined in the issue thus tendered. Upon these issues there was a verdict for the plaintiff for 6,401 dollars 90 cents, and final judgment thereon. From which judgment the appellant has appealed to this court.

The first error assigned is: That the court erred in refusing to charge the jury as asked for by the defendant.

The charge asked for was as follows:

1. That if the jury believed the account sued on in this action, is for goods, wares and merchandise sold and delivered by the firm of'Luke Tiernan & Co., to Joseph E. Davis & Co., in the year 1816, that then they must find for the defendant, unless they believe from the evidence before them, that at the time of the sale and delivery of said goods, &c., there were mutual accounts, consisting of reciprocal demands between the firm of Luke Tier-nan & Co., and Joseph E. Davis & Co. as merchants.

And 3. That if they believe the account as sued on, was by the agent of the plaintiff presented to the defendant in the year 1835, and that the defendant then admitted said account to be correct, and that the firm of Joseph E. Davis & Co. stood indebted to the firm of Luke Tiernan & Co. as charged in said account, and that said admission was then acquiesced in by the plaintiff’s agent, that such admission and acquiescence made it an account stated, and as such it was not within the exception contained in the statute of limitations in favor of such accounts as concern the trade of merchandise between merchant and merchant.

The correctness of the first point of the charge asked for by the counsel of the defendant, depends upon the construction to be given to the fourth section of the act for the limitation of actions, &c. The language of the statute, so far as it relates to the present case, is: “All actions of trespass, quare clausum fregit, &c,, except actions for slander, and except also such actions as concern the trade of merchandise between merchant and merchant, their factors, agents, and servants, shall be commenced and sued within six years next after the cause of action shall have accrued, and not after.” Rev. Code, 108, s. 4.

Our statute in respect to this subject is the same in substance as the English statute, which has been adopted by most of the states of this Union. The decisions in England upon this statute, through a long series of years, have been continually fluctuating and conflicting, nor is the question, so far as we know, yet settled. The American decisions seem to be as variant from each other as those of England; and there is scarcely a state where the adjudications upon the provision under consideration maintain a uniform. character.

It is deemed unnecessary to enumerate and comment upon the various decisions, English and American, which have been rendered on this subject. This has been done by Chancellor Kent, in 5 Johns. Chan. Rep. 533; by Angelí in his treatise on the Limitations of Actions, 196; by the editors of Saunders’s Reports, vol. 2, p. 127, in note 6; and by Senator Vielie, in the case of Meerry v. Corte, 20 Johns. Rep. 590.

The reason of this exception in the statute, is generally stated to be, because it often happens that merchants, who are as partners, or hold correspondence one with another in several parts of the Avorld, may have mutual accounts current between them for several years before they have an opportunity of meeting to state them. And in accordance with this reason, it was formerly held, that no order of tradesmen but merchants, were entitled to the benefit of the exception; yet it seems to be now settled that all persons having mutual accounts are entitled to it if the last item in the account be within six years. Angelí on Limitations, 198.

The reason of the exception then, taken in connection with the adjudications upon it, does not so manifestly appear as was at first supposed. But as we understand it, from the statute itself, and from the opinions of the many judges who have made it the subject of their comments, it was intended for the protection of merchants generally, having extensive mutual accounts current, consisting of reciprocal demands. These accounts are frequently of a complicated character, commencing with an enterprise which is to extend through a series of years, and during the operation of which it would be impracticable to close them. But as no distinctive line could be drawn between those extensive and complicated mercantile operations, and those of a more simple and circumscribed character, the courts found themselves compelled to extend the exception to all cases where there were mutual dealings.

Entertaining these views of the exception, we cannot believe it was ever intended to save from the operation of the statute of limitations, an account of the sale of a single lot of goods, however large in amount. In principle, there would be no more reason in extending the exception to such an account, than to a promissory note. “ The exception must have intended open and current accounts, when there were mutual dealings and mutual credits.” 20 Johns. Rep. 576. We, therefore, think the court erred in refusing to give the charge asked.

In relation to the second part of the charge, we entertain no doubt, that an account stated is as effectually within the operation of the statute of limitations as a promissory note; and upon this point, all the authorities, both English and American, agree. An account stated is defined by Lord Mansfield, in the case of Trueman v. Hurst, 1 Term Rep. 40, to be an agreement between both parties, that all the articles are true; and this we deem to be a correct definition. Whether an account presented in evidence, be an account stated or not, is the province of the jury to determine from the facts. From our views of the law in connection with the evidence in this case, we consider the charge requested entirely pertinent, and that it should have been given.

It is contended by the counsel for the appellee, that under the ieáue in this case, no evidence could have been permitted to establish an account stated, and therefore, the charge required was irrelevant. The plea interposed the statute of limitations. The plaintiff avoids the statute by replying the exception. The defendant traverses the averments of the replication. The question upon this issue is, whether the plaintiff’s claim is protected from the operation of the statute by the exception. The defendant surely may show any fact which controverts the plaintiff’s replication; and to show that his claim is an account stated, is to show that it is not an account between merchant and merchant, in the sense of tire exception. We are satisfied that the rejoinder 'was proper, and that evidence of an account stated was proper under it. 8 Pick. 187.

The second errqr assigned is, that the court erred in charging the jury, “ that if they believed the account sued on was originally just, and had not been paid, that they must find for the plaintiff,” such charge being in violation of law, and uncalled for, by either plaintiff or defendant.

From the view we have taken of the laws, as applicable to this case, the charge is wholly erroneous as instructions to the jury, had it even been called for. The judge evidently takes upon himself to decide the only point at issue, which is, whether the statute of limitations is a bar to the plaintiff’s action; but as the charge was uncalled for, it is not only erroneous as to the law of the case, hut a perfect violation of the statute.

The third error assigned is, that the cpurt erred in charging the jury, that the facts proved did not constitute the account sued on an account stated,” such charge being contrary to law and in violation of the rights of the jury, whose province it is to, decide upon the weight of evidence and to determine what facts it proves.

It was unquestionably the province of the jury to determine from the evidence whether the account sued on was an account stated or not. It was purely a question of fact, and, therefore, not within the legitimate powers of the court to decide.

The fourth error assigned is: That the court erred in rendering final judgment against the defendant, Joseph E. Davis, without a disposition of the suit, by discontinuance or otherwise, as to the defendant Patrick Tiernan.

This also is error. Before the plaintiff can proceed against Davis, 'he must pursue his process against Tiernan, who was not found upon the first, until he is taken, or the cause as to him discontinued.

The judgment of the court below must be reversed, and the cause remanded for further proceedings. ■  