Assumpsit for goods, wares, and merchandize. Pleas, non-assumpsit and the statute of limitations. The Court instructed the j ury, that if there was an open account between the parties, the delivery of articles within five years was sufficient to take the articles previously delivered out of the statute. Verdict and judgment for the plaintiffs.
What the Court meant by an open account is very uncertain. If they intended mutual accounts, it would have been correct to leave the circumstance of articles delivered within five years to the jury, as evidence of such an acknowledgment of the prior charges, as might take the case out of the statute of limitations. If they intended an account in which all the items were on one side, the instruction to the jury was wrong. Catling v. Skoulding, 6 T. R. 189. From the bill of particulars filed, and the residue of the case, it appears that the latter was understood by the jury to be the meaning of the Court.
The judgment is reversed, and the vexdict set aside, with costs. Cause remanded, &c.