#### COLE, FOR EATON v. KERR.

Statute of limitations — debt—setoff—bill of particulars — settlement—prior notes and receipts —solvency and insolvency — presumption.

Where debt is brought on a simple contract to avoid the statute of limitations, a sfitoff of the same nature will be regarded as in debt also, to apply the law to both parties alike.

*676Before a party can be restricted in his proof to a bill of particulars, it must be first shown, that one has been demanded and given.

The giving posterior notes or receipts are circumstances from which we may infer a settlement of prior demands.

In demands of long standing, a jury might infer payment from the solvency of the debtor, or they might excuse the delay *from*his insolvency.

Dhbt on two notes for $500 each, dated in 1816. Plea nil debet with notice of setoff. The two notes were read in evidence, and the plaintiff rested.

The defendant offered in evidence a receipt of the plaintiff for $320, dated December, 1815.

*Webb*and *Mattoon,*for the plaintiff,

objected and made three points:

1. That this item is not in the bill of particulars.

2. That the demand is barred by the statute of limitations.

3. The giving the notes to the plaintiff of subsequent date is conclusive.

*P. Hitchcock,*contra,

insisted, .that as the plaintiff had brought debt to escape the statute of limitations, the offset must be considered as in debt also. He could not avoid a bar of his own claim by a resort to the action of debt, and bar the offset by supposing the *cross-suit,*assumpsit.

*Webb,*

objected.

*J, H. Paine,*contra.

Wright, J.

We have no evidence that any bill of particulars has been demanded of the defendant, or delivered to the plaintiff. If such be the case you must show the bill, that we may see if this claim is embraced in it.

As to the second objection, it is true that until the 1st of June, 1824, no statute in Ohio imposed any limit to the action of debt on a simple contract: (3 *O.R.*387.) That omission of the legislature, the present plaintiff has availed himself of to save his debt. He must yield to his adversary the same law he exacts from him. If, in debt, the defendant cannot set up a bar, the plaintiff will not be permitted to interpose a bar against a demand of the same nature, under pretence that he might bring assumpsit for it. The liabilities of the parties must be regarded in the same light, and be either assumpsit or debt, as the plaintiff shall have elected to proceed.

The third objection is without weight when addressed to the Court. It may furnish one ground of argument to the jury, to induce them to believe the first obligation cancelled, when the second was given. The objection is overruled.

The defendant then asked of a witness, if Cole was not insolvent in 1816, and from thence until 1819. (

*677
      *P. Hitchcock,*for the defendant,

objected.

*Webb,*contra.

Wright, J.

Under what circumstances the notes were originally-given, or their collection has been delayed, it is competent to prove to the jury. If the obligor was solvent, it would be a circumstance from which, in connection with others, payment might be inferred . — if insolvent, that might, on the contrary, excuse the delay in bringing suit.

The plaintiff in rebutting the defendant’s evidence, offered sundry receipts for money from the defendant to the plaintiff, dated before and since the date of the receipt from the plaintiff, given in evidence.

Wright, J.

We have some doubt as to the admissibility of this evidence, but inasmuch as there have been many dealings between these parties, of long standing, and of their former relations as co-partners, we will admit it.

Verdict for the defendant.

Motion for a new trial overruled.