Stiles, Plf. in Er. versus Donaldson.

WRIT of Error. To an action of Debt on a Bond, dated in August 1774, the defendant pleaded payment, and gave notice of a set-off. The cause was tried in the Common Pleas of Philadelphia County on the 19th of November 1794, when the Bond being proved, without any indorsement of a payment, for principal, or interest, the defendant, by way of set-off, offered evidence to shew, "that after the execution of the Bond, and before the commencement of the suit, the Plaintiff had become indebted to him in a sum exceeding the amount of the Bond, upon accounts still remaining unliquidated and unsettled between them, as merchants, concerning the sales of merchandize made by the Plaintiff, in parts beyond the sea, aagent and factor for the defendant.” To the admission of thievidence, the plaintiff objected, that there was a lapse of more than 17 years, once the date of the last item of the accounts, and no proof given of any subsequent demand of the money now proposed to be set-off; and that the long acquiescence of the defendant, as well as the positive bar of the statute of limitations, *265must be sufficient to prevent his recovering, or defalking the amount. The Court below, however, admitted the evidence, upon which a verdict was found in favor of the defendant for a balance; but the plaintiff took a Bill of Exceptions to the decision, and brought the present Writ of Error to try its validity.

Ingersoll, for the Defendant In Error,

contended that the case of a Factor was not within the act of limitations (1 vol. Dalh Edit. p. 95.) There may be some doubt, whether the exception in the act embraces accounts between merchants, which, are not a proper foundation for an action of account render; but account render is the appropriate remedy for a principal against bis factor, 3 Woodes. 83. 85; and, consequently, the present case is clearly within the principle as well as the terms of the exception. In 1 Eq. Abr. 8. pl. 6. there is an authority nearly in point; articles furnished being allowed, under similar circumtances, as a set-off against a Bond; the Court declaring that a discount was natural justice in all cases; and the Legislature of Pennsylvania must have entertained a similar opinion, when the general act for defalcation was passed, 1 Vol. Dall. Edit. p. 65.

Condy, for the Plaintiff in Error, submitted,

implicitly, to the opinion of the Court, whether, under the circumstances of the, case, the defendant’s claim on the accounts was barred: but if the opinion was in the affirmative he remarked, that the Jury by finding a verdict against the plaintiff, had established the accounts barred, as a substantive demand (not merely as a set-off, according to the case in, 1 Eq. Abr. 8. pl. 6.) and, consequentlythe verdict, and the judgment upon it, were erroneous.

But the Court were, unanimously, of opinion, that the accounts, on which the set-off had been claimed, were not within the act of Limitations; and that the Common Pleas had donright in admitting the evidence offered by the defendant.

Judgment affirmed.

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