
    *Smith against Ruecastle.
    IN ERROR.
    The rule, that mutual accounts are not within the statute of limitations, and that the jury are to determine whether there is sufficient evidence of an acknowledgment to take the case out of the statute, is equally applicable to accounts set off by defendants, as to those on which plaintiff brings his action.
    Where a party has sustained no injury by the rejection of admissible testimony, he cannot avail himself of the wrong judgment in error.
    The action in the court below was brought on a sealed bill, given by Ruecastle to Smith, for £25 8s. 2d., dated 27 th December, 1788.
    The defendant pleaded — 1. Non-assumpsit. 2. Payment. 3. The statute of limitations; — and gave notice, that, under the plea of payment, he would give in evidence, that the plaintiff was indebted to him in the sum of £50, for goods sold, money paid, work done, and money due on an account stated.
    The errors appearing on the bill of exceptions were — 1. That the defendant was permitted to give in evidence, under his plea of payment, an account, one item of which, for £5 4s., was dated 3d January, 1787, more than six years before this action was instituted, to which the plaintiff objected, that it was barred by the statute of limitations; but the court overruled the objection, and admitted < the account to go to the jury. 2. That the plaintiff offered an affidavit of one Gostigan, taken in New York, and, to lay a ground for its admission, offered to prove that Gostigan had been subpoenaed three times, in New York, to attend as a witness on the trial, but. had been prevented from attending by the defendant himself; — the court, however, overruled the testimony on the objections of the defendant. To these opinions, bills of exceptions were taken, and the cause removed by writ of error.
    
      
      M. Williamson, for the plaintiff in error
    The first question arising in the case is, whether the objection which was taken by the plaintiff to the item in the defendant’s account, grounded on the statute of limitations, ought not to have prevailed ? This item in the account was of a date more than six years previous to the commencement of this suit. If an action had been brought on it, the statute would have operated as a bar. The law cannot be evaded in this man-ner: it was intended to operate equally *upon all parties, and, upon a fair interpretation of the statute, it applies with as much force to a debt set off against the plaintiff’s demand as against a claim by the plaintiff himself. It has been uniformly decided on the statute, that a debt barred by it cannot be set off: if pleaded in bar the plaintiff, may reply the statute; if offered in evidence on a notice of set off, plaintiff may object to it on the trial. 2 Imp. C. P. 305; Bull. N. P. 180; 2 Str. 1271.
    As to overruling the deposition of Costigan, the plaintiff in error ought not to be deprived of important testimony to support his case. The defendant has himself interfered to prevent the personal attendance of the witness, and is not entitled to object to the sufficiency of that which was offered. We have adduced the highest species of evidence in our power, and it is the fault of the party objecting that better was not procured. The rule of law is explicitly stated in G-ilb. on Pvid. (Lofft’s edit.) 214, 215, that the examination of a witness, taken before a coroner, is evidence, and to be read on the trial, when it can be proved that the witness is detained and kept back from appearing by the means and procurement of the prisoner. If this species of secondary evidence is admissible in criminal cases, much more so is it evidence in civil suits.
    But this affidavit is made good evidence by our own statute. The 19th section of the act of August 30, 1794, called Clark's law,
      (Pamphlet edition 82) provides that any party may procure the deposition of a witness who cannot be had at the trial, to be taken in the manner therein pointed out; and such deposition, so taken, shall be good evidence in the cause.
    
      I. Williamson, contra.
    The first objection taken by the plaintiff in error appears to arise from a clear misconception of the law. He objects to the account going to the jury when it is of an older date than six years; we contend, that it stands precisely on the same footing with a plaintiff’s account to which the statute of limitations is pleaded, and that the objection arising from the statute may be rebutted by proof of an acknowledgment within the time. There is no question but that the plaintiff may reply the statute to an account pleaded by defendant, and the jury are to determine, from the evidence, the question *of fact, whether the debt is or is not within the statute? What amounts to an acknowledgment sufficient to take a case out of the statute, is for the jury to determine; (1 Ssp. N. P. Gould’s edit.) and there is neither law nor equality in confining the benefit of this rule to one party in exclusion of the other. There is no suggestion, that the evidence offered did not warrant the jury in saying it was taken out of the statute by a subsequent acknowledgment.
    But what is a decisive answer to the objection taken, is, that the item excepted to was one of many in a running and open account between the parties, upon which the statute of limitations can have no sort of operation.
    3. With respect to the deposition offered in evidence, it was properly overruled by the court. The contents of it were inadmissible between the parties, either wholly immaterial in the question between them, or not proper to have been given in evidence had the witness himself been present.
    But the deposition was not such a one as was contemplated by the act referred to. The witness himself was not such a witness as the law had in view, nor was the deposition taken in the manner prescribed. It appears, from the party’s own shewing, that the witness was a foreign witness, an inhabitant of Kew York; the act embraces only witnesses residing in this state, for the depositions are to be taken before a judge of the Supreme Court or Common Pleas, residing in the county where the witness himself resides. This statute is in derogation of the common law, and is to be construed strictly; it has not been taken by a judge residing in the county where the witness resides. The mere circumstance of the witness being for a day or an hour within the limits of this state, will not make him a resident.
    Another, however, and a more serious objection to this deposition, was also made before the court below, arising from the want of notice. Thé notice given to the plaintiff was only one hour. The act requires, in usual cases, four days’ notice, and, under special circumstances, the parties shall have reasonable notice. One hour’s notice is not reasonable notice, nor are there any circumstances set forth to shew why the time was so restricted.
    The deposition is entirely an .ex parte one, and the law, as cited from Gilbert, dees not establish the general proposition, *that if the party keeps a witness out of the way, the other party may take his deposition ex parte, and use it as evidence on the trial. It is sufficient for us to say, this is not the case stated by Gilbert.
    
    
      M Whorter replied.
    
      
      
         Since repealed.
    
   The opinion of the court was delivered by

Kinsey, O. J.

(After stating the case.) — -I am at a loss to conceive upon what grounds the first objection taken in this case can be sustained. In England the party may or may not set off his debt against the plaintiff’s claim. Baskerville v. Brown, (2 Burr. 1229). There is nothing in their law to render it compulsory upon him. In New Jersey he must set off, or lose his debt. When, therefore, goods are delivered to a less amount than the party delivering them owes to the other, it is, under the equity of our law, a payment for so much of his debt, and attaches as such immediately. This is the proper view in which to regard our act of assembly. The -whole account and transaction between the parties may, and generally must be gone into before a recovery can be had on the other side, for the amount which the one has debited to the other. There can, then, be no impropriety in permitting a defendant, when sued, to plead or give in evidence a debt of forty years’ standing. Nor does the statute, either here or in England, apply to cases where there are mutual accounts and reciprocal demands. Every item added is an omission, in law, of an unsettled account, and prevents the operation of the statute. The language of Lord Kenyon, in Catling v. Skoulding, (6 D. & E. 193) is express upon this point. “ I take it,” says he, “ to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained.” Where the items are on one side, and the space of six years intervenes between two successive charges, the statute may be a bar to the recovery of all beyond six years.

*As to the overruling the testimony offered, the principal difficulty is, that we cannot see to what purpose it was to be applied. It does not appear that the party has sustained the smallest injury from the exclusion of the deposition. And the rule of law I take to be explicit, that where the party has sustained no injury from an erroneous opinion, he cannot avail himself of the mistake to reverse the judgment. On this ground, then, we think the judgment must be affirmed. At the same time, we conceive it proper to state, that we are of opinion that the nineteenth section of the act of August, 1784, is to be construed liberally, and to effectuate the purposes of justice. There is no ground for confining its operation to witnesses who are settled inhabitants of the state; for though this does in the first part seem to be required, yet as the subsequent words, “ if the witness be so circumstanced that his or her testimony, if not soon taken will in all probability be lost, or cannot be had at-the time, the same may be wanted,” are general: the act ought to receive such a construction as will embrace the-cases which' require it.

Judgment affirmed. 
      
       See Coles v. Harris, Bull. N. P. 149; Ballantine on Lim 79; Peake’s Ca. 121; 17 John. Rep. 330, Martin v. Williams.
      
     
      
      Same point decided in Miller v. Colwell, 2 South. 577. So merchants’ accounts, after six years total discontinuance, arc barred by the statute. 2 Eden. Ch. Ca. 169; 18 Vez.jun. 216, Barber v. Barber.
      
     