
    Henry Bass, Executor of Henry Bass, versus William Bass.
    An account that is closed, is not in consequence necessarily a settled account'.
    An account “ concerning the trade of merchandise, between merchant and me* chant,” is not barred by the statute of limitations, although none of the items are within six years before the action was brought.
    The death of one of the parties to such an account, does not operate as a settlement or statement of the account, so as to bar it by the lapse of six years from the time of his death.
    Whether accounts concern u the trade of merchandise between merchant and merchant,” is a question of fact to be decided by the jury.
    Such accounts are not merely accounts for merchandise bought and sold between the parties, but also include demands for money growing out of the trade of merchandise.
    The lapse of twenty years from the time of a debt’s becoming due, does not operate as an absolute bar to its recovery, but affords a presumption of payment j which presumption may be rebutted by evidence, tending to show that payment has not in fact been made.
    
      This was assumpsit for goods sold, money laid out and expended, lent and accommodated, and had and received.
    The defendant pleaded the general issue, which was joined. He also pleaded actio non accrevit infra sex annos. To this the plaintiff replied, that the plaintiff’s testator and the defendant were merchants, and that the causes of action set forth in the declaration, arose out of the mutual dealings and accounts, of the testator and the defendant as merchants, and wholly concerned the trade of merchandise. The defendant in his rejoinder traversed these allegations ; and issue was joined upon this traverse.
    The following was the bill of particulars filed by the plaintiff, with the omission of some charges which were abandoned by him at the trial.
    William Bass in account current with the estate of Henry Bass.
    Dr. 1803. To cash paid your draft to M'Cardier 582-50
    Nov. 19. “ cash paid for 3142 lbs. pepper shipped to you by Capt. Mulsey Oct 1803 613-61
    1804.
    luly 14. “ balance of your account settled with H. Bass &. Co. this day 644-32
    “ “ “ 1000 pieces of nankins of H. Bass & Co. 870-00
    Oct 29. “ cash paid your draft to John Speyer 341-25
    Nov. 10. “ “ “ “ “ to N. Lawrence 884-69
    “ 26.“ “ « “ “ to R. S. Hackley & Co. 665-65
    1804. Cr.
    July 2. By George Bass’s note on me in your favor of this date 281-74
    Dec.31.“cash received for your draft on Benj. and Geo. Williams, Baltimore 356-60
    “ “ “cash received for debenture certificates on nan-kins 72-37
    With regard to the first item of charge, the plaintiff proved, that in September, 1803, the defendant drew his bill in favor of one M‘Cardier on the testator, to pay certain advances made by M‘Cardier to the defendant, and that the testator paid the bill. As to the second item, the plaintiff proved that the testator, in November, 1803, consigned a quantity of pepper to the defendant for sale, and that the defendant, who was then in France, had transmitted an account of sales and promised to pay the balance on coming home. The plaintiff proved as to th® third item, that it was a balance of account due from the defendant to Henry Bass & Co. which was, in July, 1804, transferred to the testator’s debit by H. Bass & Co. with the defendant’s consent. The plaintiff proved, as to the fourth item, that the nankins were, in July, 1804, sold by H. Bass & Co. to the defendant on the testator’s credit, and charged to the testator by H. Bass & Co. by agreement of the parties. The three remaining items were proved to be drafts drawn in October and November, 1804, by the defendant, on H. Bass & Co., to pay for goods purchased by him at New York on his own account, which bills were accepted-and paid by them, and then charged to the testator in the company’s books, with his consent, and according to an understanding between the parties before the purchases were made. The drafts were produced, and the defendant’s name was struck out in all of them. It appeared from the evidence, that the defendant had resided in France for many years after the date of the charges in the account.
    The defendant then proved, that the testator died in 1813 ; that the defendant had been in Boston since the date of the last item, at different times, particularly in 1805 and 1811 ; that in 1810 he had funds in the hands of H. Bass & Co. exceeding 4000 dollars ; and he exhibited an account settled between H. Bass & Co. and himself in 1807, showing a balance due to him of 900 dollars.
    The plaintiff produced the will of Henry Bass, who was the father of the defendant, by which the income of- his real and personal estate was given to his wife for life, and the remainder specifically devised, a part of it being given to the defendant The widow received the income accordingly until her death, October 30, 1826.
    The defendant contended, that an account when stated, ceased to be an account between merchant and merchant, with r in the statute, which applies only to open and current accounts ; that the death of either party closes and states the account; and thus, that no action having been brought within six years after the testator’s death, the suit was barred by the statute.
    
      The defendant further contended, that the dealings in relation to merchandise, to be brought within the statute, must be mutual; and that as the items to his credit in the account, consisted merely of cash, the case was not within the exception in the statute. But the judge ruled otherwise.
    The defendant also contended, that as all the items of the account, except two, were mere payments of money or advances by the testator to or for the defendant, the account did not relate to the trade of merchandise. But the judge was of a different opinion ; and he instructed the jury, that the question whether the transactions between the parties were the dealings of merchants, and whether the accounts arising out of those dealings were merchants’ accounts, and whether they related to the trade of merchandise, were questions of fact for them to decide.
    The defendant then contended, that the lapse of time was presumptive evidence of payment by him. The judge instructed the jury, that after twenty years the presumption of law was, that the account had been settled, and any balance paid ; but that this presumption might be rebutted by evidence tending to show that the same had not been so settled and paid ; and that whether this had been done in the present case, was for the jury to determine.
    The jury having found a verdict for the plaintiff on both issues, the defendant moved for a new trial, on the ground that the verdict was against evidence, and also on account of the instructions of the judge.
    
      Shaw and Bartlett, for the defendant.
    Where an account is stated, it does not fall within the exception in the statute, as to merchants’ accounts ; and after all dealings between the parties have ceased for more than six years, merchants’ accounts are no longer open, but barred by the statute. Welford v. Liddel, 2 Ves. sen. 400; Webber v. Tivill, 2 Wms’s Saund. 127, note 6 ; 5 Dane’s Abr. 394; Ramchander v. Hammond, 2 Johns. R. 200; Coster v. Murray, 5 John. Ch. R. 527; Murray v. Coster, (S. C.) 20 Johns. R. 576 , Farrington v. Lee, 1 Mod. 269; Farrington v. Let, 2 Mod. 312; Barber v. Barber, 18 Ves. 286; Duff v. East India Company, 15 Ves. 198.
    
      March 12ÍA.
    
      The death of Henry Bass stated and closed the account, and the six years must have then begun to run, if not before. 5 Dane’s Abr. 395. Case before S. J. C. Mass, at Ipswich 1800, Story’s PI. 91. The law is the same in Scotland. Accounts are there barred by the lapse of three years from a cessation of dealings, or from the death of one of the parties. 1 Bell’s Com. 251.
    After a certain lapse of time, accounts will be presumed to have been rendered, and the statute will begin to run. Topham v. Bradclick, 1 Taunt. 571. ■ In the present case the last item in the account was in 1804, and the action was not commenced until 1826.
    The accounts in this case do not concern the trade of merchandise between merchant and merchant, within the meaning of the statute. (St. 1786, c. 52, § 1.) There are only three items on the credit side and those are all of cash. And as to the charges on the other side, the first and three last are all merely advances made by the testator ; the second was a settled account; Sherman v. Sherman, 2 Vern. 276; Free-land v. Heron, 7 Cranch, 147; and the third and fourth, though, as it regards H. Bass & Co. they might originate in the trade of merchandise, yet with regard to the testator were mere advances. Surely every case of set-off is not to be considered as mutual dealings between merchants. Webber v. Tivill, 2 Wms’s Saund. 126; Murray v. Coster, 20 Johns. R. 582; Cheeveley v. Bond, 1 Show. 341.
    The verdict was against evidence. After the lapse of twenty years, a debt, even if by bond, is presumed to be paid. Thompson v. Skinner, 7 Johns. R. 556; Cope v. Humphreys, 14 Serg. & Rawle, 21; Giles v. Baremore, 5 Johns. Ch. R. 550. It was right that this presumption should be submitted to the jury ; but the instruction should have been, that if they found that twenty years had elapsed, the demand was barred. Palmer v. Dubois, 3 Const. Rep. S. C. 180.
    
      Sullivan, for the plaintiff.
    It is admitted that a stated ac count is not within the exception of the statute, but the account in this case was not stated or settled, but continued open. A closed account is not a stated account. A'Court v. Cross, 3 Bingh. 329; Mandeville v. Wilson, 5 Cranch 15; Foster v Hodgson, 19 Ves. 185. Courts are now dissatisfied with the excessive refinements which have been made on- the statute of limitations. Bangs v. Hall, 2 Pick. 368; Scales v. Jacob, 3 Bingh. 638; Bell v. Morrison, 1 Peters’s Sup. Ct. R. 351.
    The items in the account evidently relate to mercantile transactions, and the parties were merchants. Beawes’s Lex. Merc. 29. If there could be any question on these points, the verdict of the jury has settled it.
    The lapse of twenty years is not an absolute bar ; that period was adopted by analogy to the statute of limitations, and only affords a presumption of payment, which presumption may be rebutted by evidence. Oswald v. Legh, 1 T. R. 271 ; The Mayor of Kingston v. Horner, 1 Cowp. 109 ; Hillary v. Waller, 12 Ves. 266. The question was properly left to the jury; and the circumstances of the relationship of the parties, the long absence of the son, and the provisions of the will, sufficiently rebutted any presumption of payment.
    
      June 27th.
   Parker C. J.

delivered the opinion of the Court. It was decided in a former stage of this action, that merchants’ accounts, as described in the statute of limitations, are excepted-from the operation of that statute, and upon a revision, we are satisfied with that decision.

The case as now reported presents the question, whether the demand sued, if originally a merchants’ account, has ceased to retain that character from any cause appearing in the report;

. and whether all or any of the items in the account are in fact of .a nature to come within that description.

It is insisted that the death of the testator more than six years before the commencement of the suit, closed the ac count between the parties, so that from that time the balance then existing became liable to the operation of the statute of limitations, like an account stated; which, according to all the authorities, ceases to be a merchants’ account, so far as respects the exception in the statute. There are no authorities for this position, except a loose dictum in 5 Dane’s Abr. 395,' inded upon a supposed decision of this Court stated in Story’s Plead. 91. The position itself is inconsistent with a subsequent position of the same learned authority, in 6 Dane’s Abr. 152, where it is laid down, that an account closed is not a stated account. Death closes accounts in. one sense, that is, theie can be no further additions to them on either side ; but they remain open for adjustment and set-off, which is not the case in an account stated ; for that supposes a rendering of the account by the party who is the creditor, with a balance struck, and an assent to that balance, expressed or implied ; and thus the demand is essentially the same as if a promissory note had been given for the balance.

We see no authority for deciding, that the death of one of the parties, the account remaining unsettled, shall so change the nature of the demand, as to take it out of the exception in the statute.

In regard to the objection, that the items of the account are not such as, according to the statute, are the proper component parts of merchants’ accounts, we think it is not tenable. The words are, u other than such accounts as concern the trade of merchandise between merchant and merchant.”

It was not intended to limit this exception to accounts for goods, wares and merchandise bought and sold between the parties; but all demands for money growing out of the trade of merchandise, between merchant and merchant, which are the subject of account, are included. We' see no item in the account sued, on which the verdict has been given, which may not fairly be presumed to have arisen from the relation of the parties as merchants.

And we think it was properly left to the jury, to determine the character of the account, and whether it concerned the trade of merchandise.

Judgment according to verdict. 
      
       See Union Bank v. Knapp, 3 Pick. (2d ed.) 113,114, note 1; Blair v. Drew, 6 N. Hampsh. R. 238; Revised Stat. c. 120, § 5
     