#### Joseph Tichenor *against*William and Robert Colfax.

on certiorari.

THE state of demand shews the foundation of the suit, and is in the following words.

“Balance due on settlement,” sufficient demand. (a)

Statute of limitations. (b)

“ *Joseph Tichenor,*to *William Colfax*and *Robert Colfax,*Dr. To balance due on settlement, with *Peter Jackson,*

at *Ringwood’s*store, *May*27, 1799, ... $29 25 To interest thereon to *April*12, 1817, - 36 85

$66 10

At the trial, it was proved by more than one witness; that the defendant had said, within six years, in the spring of 1817, “ The account, or debt, is an honest one, but I have paid it.” It was also proved by a transcript, from the docket of justice *Mead,*that a suit had been brought before him by the plaintiff, against the defendant, for the same account; that a trial was there *had, and verdict entered for the defendant, but that justice *Mead*had not entered judgment upon that verdict. A *174motion was made to nonsuit the plaintiff. 1. Because claim was barred by the statute of limitations. 2. Because there had been a former trial and verdict for the same account. 3. Because the state of demand did not contain, a *copy of the account,*as required by the statute. The same reasons were filed in the Supreme Court, and relied on for the reversal of the judgment. On the trial below, *Peter Jackson,*whose name appears in the state of demand, swore that “he was clerk of the plaintiff at the time of making the account between the parties; that the books offered were the day-book and leger of the plaintiff, and that defendant and witness made the settlement, as stated on the books, at the time mentioned.”

*Hornblower*

for plaintiff in *certiorari,*insisted, that the proof of defendant’s admission of the account, did not take it out of the statute. That the admission was to be taken altogether, and if permitted to prove the existence of the account, at some former period, it also proved its discharge, and cited *Bui.*108. 2. That the verdict before *Mead,*was a conclusive bar; that the court ought to have regarded it as if judgment had been entered; and that it would lead to the very worst consequences if justices of the peace were permitted, in favour of a favourite party, to refuse or decline to enter up judgment upon a verdict, and thus enable the party to try his cause before some other magistrate.

*Halsey,*

*for*defendant, answered, 1. That the question of the statute of limitations under the *testimony,*was for the jury, and this court would not say that they had erred in the opinion they formed of it; that we only knew what the evidence on this point was, by the transcript of the justice; that he had no right to put it in his transcript, and being illegally there, must be considered as a nullity; and that he may or may not have put down the whole testimony on this point, and therefore the court were not able to judge of the correctness of the justice, in overruling the motion. 2. That the first verdict being rendered some time previous to the last trial, *175and no proceeding had upon it, the cause must he considered as discontinued, and no bar to the present suit.

(a)

*а) Chidester vs. Drake, Pen.** *903. McHenry vs. Forsyth, Pen.** *1003. Prest vs. Mercereau, 4 Hal. 268. Carter vs. Lackey, Spen. 608.*

(b)

*Belles vs. Belles, 7 Hal. 339. Conover vs. Conover, Sax. 404. Ridgway vs. English, 2 Zab. 409. Hibler vs. Johnston, 3 Har. 266. Cadmus vs. Dumon, Coxe 176. White vs. Potter, Coxe 159. Smith vs. Ruecastle, 2 Hal. 357. Gulick ads. Turnpike Co., 2 Gr. 545.*

*Kirkpatrick C. J.

This action was instituted *March*29, 1817. The plaintiffs, in their state of demand, claim a balance due on settlement of accounts dated *May*27, 1799, of 29 dollars, 25 cents, with interest thereon till *April*12, 1817, being the day of the return of the process, amounting to 36 dollars, 85 cents, making in the whole, 66 dollars, 10 cents.

On the trial of the cause, the defendant moved for a nonsuit; first, upon the insufficiency of the state of demand, it being for one aggregate sum as a balance on a settlement of accounts, and not containing and setting forth the particular items of the account; secondly, upon the statute of limitations, the striking of the balance itself being of much more than six years standing, and no evidence of an assumption to pay within that time; and thirdly, for that the cause had been once before tried, and a verdict rendered for the defendant. The justice, however, overruled this motion for a nonsuit, put the cause to the jury, and received their verdict, and entered his judgment for 65 dollars, 97 cents.

The law undoubtedly requires that the copy of an account filed should contain and set forth the particular items. It is indeed this that makes an account, and it is this only that can apprize a defendant of the matter to which he is to answer. It has repeatedly been determined, that a *mere*statement of a balance is not sufficient. But here the balance was settled by the parties, and in such case it is sufficient to exhibit it as an item of account and so settled.

With respect to the statute of limitations, the justice has stated the evidence upon which the plaintiffs rested to relieve themselves from the operation of it. Two or more of their witnesses said, that in conversation with the defendant, in *February*1817, touching this claim, he told them that *the debt was an honest one, but that he had paid it, and had a receipt to shew for it.*

The pleading of the statute of limitations never calls in question the justness of the debt originally; it only *176raises the presumption that the same has been satisfied paid; and to this presumption the statute gives effect -^y taking away the party’s remedy to recover. For the defendant, therefore, to say that the debt was just, but that he had paid it, was no admission of, or assumption to pay, an existing debt, but the contrary; and notwithstanding such acknowledgment he might well put himself upon the statute to protect him from further vexation.

*Upon the first reason, urged for a nonsuit, it is thought the justice has mistaken the law.

By the whole Court. Therefore, let the judgment be reversed.

The Court expressed no opinion upon the second reason.