The Court (Thruston, J., absent,) said, that as the exception in favor of merchants’ accounts is not stated by way of replication, the evidence could not be admitted. The replication is, that the cause of action accrued within three years, &c., and according to the decision of the Supreme Court in Bell v. Morrison, 1 Peters, 351, mutual accounts are not evidence on that issue.
Mr. Dmlop then moved for leave to withdraw a juror and amend his replication.
Mr. Redin objected, that it appears by the defendant’s books of account, which he produced in court, that the plaintiff’s whole claim has been paid; but the books, being in his own handwriting, are not evidence.
The Court refused leave to amend under such circumstances. The plaintiff admits there were mutual accounts, and upon that ground moves to amend, and yet refuses to admit the defendant’s books in evidence, although the defendant offered to waive the plea of limitations.
Verdict for plaintiff,. $30; which, being below the jurisdiction of this Court, the plaintiff took a non-pros.