
    Ramchander against Hammond.
    This was an action on a promissory note, dated at Calcutta, the 23d November, 1797, by the defendant to plaintiff, a native of India, and inhabitant of Calcutta, for four thousand and forty rupees, payable twelve months after date, with interest, at the rate of twenty per cent, per annum. The defendant pleaded non assumpsit and non assumpsit infra sex amos. To the second plea, the plaintiff replied specially, that the action of the plaintiff concerned the trade of merchandise between merchant and merchant, Zyc. The defendant rejoined, protesting that the action did not concern the trade of merchandise, &c. that within six years next before the commencement of the plaintiff’s action, there were no open or running accounts between the plaintiff and defendant, that all account, concerns and transactions whatever between the plaintiff and defendant, were liquidated and closed at the time of, and for more than six years before, the commencement of the plaintiff’s action. To this rejoinder there was a demurrer, and joinder in demurrer.
    The clause ip, the act of limitations of this state, which excepts “ actions which concern the trade of merchandise between merchant and merchant,” extends only to open and current accounts ; and does not admit of a greater extension than what has been given by the English courts to he words of the statute of Jamesl. which ^untlcon-^' cerningthe ^^d°3e^,er‘ .
    Boyd, in support of the demurrer.
    The statute of limitations is in derogation of the common law, and is not, therefore, favored by courts, who have allowed the slightest acknowledgment to take a debt out of the statute. The language of the statute of James I. (ch. 16-, § 3.1 and of our act, is different. The words of the former are, “ all actions of account and upon the case, other 
      
      than such accounts as concern the trade of merchandise be-tiveen merchant and merchant, their factors or servants, & c. shall be sued, &.c. within six years.” In the act of this state, the words are, “That all actions upon the case and of account, otherthan actions for slander and actions which concern the trade of merchandise, between merchant and merchant, their factors or servants, &c. shall be commenced and sued within six years,” &c. The persons who revised the laws of this stkte, in 18Q2, must have made the alteration with a view to avoid the doubts and difficulties that had occurred in the construction of the statute of James, which would not have arisen, had the language been actions which concern the 1 rade, &c. instead of such accounts as concern the trade, &c.
    
    
      Harison, contra.
    After the statute of James, much controversy arose in the English courts whether the exception extended to all actions relative to merchants, or to accounts open and current only; or whether to actions of account only, or to actions of assumpsit. Other distinctions were also made betwmen accounts between merchant and merchant, and mutual accounts between parties not merchants, where any item of credit was within six years. It is now settled that open and current accounts only are excepted, not accounts stated, or bills of exchange and promissory notes, nor where all the items of an account are ou one side. On the construction contended for by the other side, the exception in our act will be made to extend to bills, notes, and accounts stated, and every other transaction whatever, concerning the trade of merchandise between merchant and merchant. But the revisers of the law, in altering the phraseology of the act, must have intended no more than to remove any doubt or distinction that might exist between actions of account, and actions of assumpsit.
    
    
      Riggs, in reply.
    The replication of the plaintiff is in the very words of the act; the rejoinder does not deny or meet the replication, and so there is a departure. It remains then to inquire into the validity'of the replication. In the decisions which have taken place in the English courts on the statute of James l. exceptions ón exceptions have been made, and various distinctions raised which produced so much doubt and uncertainty, that the ture of this state, in the revised act, must have, intended to remove every difficulty, by disregarding-the form of action, and considering only the character of the parties ; thus excepting every transaction concerning trade between merchant and merchant Had this not been their intention, the exact words of the English act would have been used; for it will be found that when the legislature have not determined to depart from the English statutes, existing in this state at the revolution, they have invariably adopted the precise words, so that we might have all the benefit of the decisions of the English courts, in the exposition of these statutes. If the words of the act of this state clearly extend so as to except all actions whatever relative to merchandise, between merchant and merchant, the court are bound to give them effect, by adopting the construction now contended for. If, however, it should be thought that the demurrer is not well taken, leave will be asked to withdraw the replication, that the plaintiff may avail himself of the saving in the act, in regard to persons absent from the state.
    
      
       ofN.Y.vol.L P\563- ^s. $ 5.
    
    
      
       2 Saunders, 124. 127. and notes.
    
    
      
       4 Sac. Jib. (5th ed.) 478. Limitation of Actions, E. 3.
    
   Per Curiam.

Our statute of limitations excepts “ actions which concern the trade of merchandise between merchants.” These words are not so broad as to warrant' a departure from the adjudications which have been made on the English act. These words, like those of the statute of James, must be confined to actions on open or current accounts; they do no not extend to accounts stated. It must be a direct concern of trade; liquidated demands, or bills and notes, which are only traced up to the trade of merchandise, are too remote to come within this description. To adopt the construction contended for on the part of the plaintiff, might be found very inconvenient, and the phraseology of the act does not au-thorise us to suppose, that the framers of it intended so important an alteration. The demurrer must, therefore, be considered as well taken; but the plaintiff has leave to withdraw his replication, or amend, on pa yment of costs,

Judgment for the defendant. 
      
       Vide 2 Saund. 124. 5 Cranch, 15, and 14 John. Rep. 479. where this doctrine is commented upon, and fully sustained.
      The exceptions in favour of merchants in the statute of limitations of Virginia, applies as well to actions of assumpsit as to actions of account. 6 Cranch, 15. Where an account has been of long standing, and the last item in it entered more than six years, yet if there has not been an actual settlement, it is to be considered a running acconnt, and not barred by the statute, Franklin v. Camp, 1 Cox, 196.
     