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Opinion of Beatty, C. J., dissenting.

been more correct to have added: "And also the following items of personal property," before enumerating the wagon and other chattels mentioned in the credits on the account. But because he omitted to use this or some similar phraseology, I think it hardly fair to conclude that he meant to say a wagon was money-was a $100; or that it was paid as a $100. He certainly does not pretend to say that at the time defendant delivered him the wagon there was any agreement it should be treated as money, or entered as a payment, rather than a credit, on defendant's account. Altogether, I think, the plaintiff has lost his case, not because the law and the facts were against him, but because he was a bad grammarian, or rather loose and careless in his use of the English language.

Again, there was but one witness examined in this case. The plaintiff closed, and the court, on motion, granted a nonsuit. Such are the facts as disclosed by a bill of exceptions. The judgment actually entered, recites that it

was on full hearing of testimony on each side, and [*110] is in form a judgment on the merits, and *could be

pleaded in bar to another action. Had it been entered as a judgment of nonsuit, it would have been no bar to another action. The plaintiff might have brought a new suit, and possibly by a diligent study of the English grammar for a few weeks, he might have so improved himself as not to lose his case the next time by the use of language which is made to mean something, which, in my opinion, the plaintiff never meant to express. Something, indeed, which he would not be capable of understanding or appreciating, even after a learned lecture by an able member of the profession upon the nice distinction between payment and credit. Having expressed my own views of this case, I will now notice some of the authorities bearing on the subject.

In Ingram v. Sherard (17 Serg. & R. 347), it was held, that when the plaintiff sued on an account running about sixteen years, and showed a credit for $25 cash paid twelve or thirteen years before suit was brought, this did not take the case out of the statute which bars accounts after six

Opinion of Beatty, C. J., dissenting.

years. In Hay v. Kramer (2 Watts & Serg. 137), it was held that when Kramer had been in the habit of selling hats to Hay, and Hay had made one payment in cash and had returned one hat (probably for some defect in the manufacture), this was an account all on one side, and not a mutual account. The return of an article for unfitness is a different transaction from the sale or delivery of an article at a fixed price, or a price thereafter to be settled on account. Perhaps these two cases cannot be held as settling anything more than that a technical cash payment on account shall not be held to constitute an item in a mutual account.

In the case of Lowber v. Smith (7 Barr. 381), Smith, who was plaintiff below, was a powder manufacturer, and was in the habit of purchasing saltpeter and brimstone from Lowber. Sometimes he paid cash, and sometimes powder for these materials. Sometimes he got the materials and worked them up into powder on the shares. The accounts run between the parties for several years. The last item was a lot of powder delivered by Smith, November 3, 1836. Suit was brought November 1, 1842, not quite six years after the last lot of powder was delivered. The last lot of powder having been delivered within six years, there was no *difficulty in Smith's recovering the value of [*111] that. But it would seem that Smith claimed more

than the value of the last lot of powder; he claimed that there was a balance due him from the other transactions between the parties. The court below instructed the jury that this was a case of mutual accounts, and the last item being within six years, Smith could recover the entire bill due him on a settlement of all the accounts between him and Lowber. The court above reversed the case, on the ground that the powder furnished by Smith was not sold to Lowber, but was paid by him on account. Now, when we take into consideration the fact, that at the time Smith delivered the powder he did not owe Lowber anything, but on the contrary, Lowber was in debt to him, this appears to me an extraordinary decision. Smith did not sell the powder; he did not deliver it as an ordinary account between merchant and manufacturer, but he paid it on a debt he did

Opinion of Beatty, C. J., dissenting.

not owe. It appears to me this decision is so unreasonable, that it is not entitled to any weight as an authority. Yet this is the only decision I can find where it has been distinctly held that the payment of an article of merchandise on account does not constitute an item of mutual account. In the case of Weatherwax v. Cosumnes V. M. Co. (17 Cal. 344), a gold bar was delivered to defendants to be sent to the mint, and when the proceeds were returned in coin, this coin was to be credited to defendants. This the court held to be the same as if the coin had been paid originally on the account. It was a simple case of technical payment in money. The court, in effect, held that a payment in money on an account did not make a mutual account.

In the case of Norton v. Larco (30 Cal. 126), the supreme court of the State of California admit the general proposi tion that payment of money or merchandise on account does not make a mutual account so as to take a case out of the statute, but at the same time held that the delivery of an article of merchandise to be credited on account at a stipulated price does make an item of mutual account. The difference between delivering a piece of personal property

to be credited on an account at a stipulated [*112] *price, and the payment of the same piece of property to be credited on account is so little, or my obtuseness is so great, that I am wholly unable to comprehend it. Technically, nothing but money can be given in payment. Substantially there is no difference between giving a creditor a piece of property and saying credit this on my account, or enter this as payment on my account.

The case of Penniman v. Rotch, 3 Met. I think clearly sus tains my views in this case. In that case the plaintiff sued an account running through several years. A part of the items were within six years but most of them of older date. The question at the trial was whether those of longer standing than six years were bound by the statute of limitations. To take the case out of the statute, the plaintiff proved two items of credit, or payment made by the defendant during the running of the account. Neither of these items of credit, it is to be observed, were within six years of the time

Opinion of Beatty, C. J., dissenting.

when the action was brought. One of these items was cash $17.60 for beef, the other one, calf $4.20. The $17.60 was paid under the following circumstances: Plaintiff, during the running of the account, sold a certain quantity of beef, (amounting to $17.60 in value) to defendant to be paid for in cash. The beef was taken away, and the cash not paid at the very time of taking it off, but was paid shortly after. The beef in the meantime had been charged, and when the money was paid it was credited. The court in commenting on this credit expresses some doubt as to whether it can be considered an item in a mutual, open current account, not because of its being money or because of its being a payment on account, but because it seemed rather to be a payment on which was considered a cash transaction. The court seemed to doubt whether the beef and this $17.60 ought not to be treated as a separate transaction, neither the beef nor money constituting properly any part of the open, current account between the parties. But the court seem to entertain no doubt but that this $17.60 would have taken the whole account out of the statute if the money had been paid generally on account instead of being paid particularly for the beef, which by agreement was to be a cash transaction.

*The court, however, held that the credit of $4.20 [*113] for the calf took the whole account out of the operation of the statute of limitations. The Massachusetts statute, on which this case was decided, reads as follows: "In all actions of debt or assumpsit brought to recover the balance due upon a mutual and open account, the cause of action shall be deemed to have accrued at the time of the last item proved in such account." The language of this statute differs from ours, but I do not seo any difference in substance.

I am of opinion the judgment should be reversed.

NEV. DEC.-39

Statement of Facts.

EX PARTE JOSEPH C. STANLEY

[4 Nev. 113.]

'RIGHT TO SPEEDY TRIAL IN CRIMINAL CASE.-Every person held on a criminal charge has the legal right to demand a speedy and impartial trial by jury.

SPEEDY TRIAL, WHAT.-- The speedy trial guaranteed every person accused of crime is a trial as soon as possible after indictment is found, without depriving the prosecution of a reasonable time for preparation. FAILURE TO PROcure Jury, groUND FOR CONTINUANCE.—If the prosecution in a criminal case makes all reasonable efforts to empanel a jury at the first term at which the case is triable, but without success, and it does not appear that a jury could not be had at the next term, there is a good cause for a continuance on its motion for the term. CONTINUANCE WITHOUT AFFIDAVIT.-Section 318 of the Criminal Practice act

confers upon the courts the right to continue the trial of a criminal case upon a proper showing by affidavit: but if the fact authorizing a continuance is within the judicial knowledge of the court, such as the impossibility of impaneling a jury at the term, an affidavit is unnec

essary.

HABEAS CORPUS FOR WANT OF SPEEDY TRIAL.-A prisoner charged with a grave offense will not be discharged on habeas corpus on the ground that all efforts to obtain a competent jury at the term at which he was properly triable failed, until it appears that all possible means of securing a jury have failed, and a trial cannot be had within a reasonable time. See concurring opinion of Beatty C. J.

INDEFINITE POSTPONEMENT OF CRIMINAL CASE.-If it appears that a jury cannot be procured in a criminal case at the term at which it is regularly triable, an order of indefinite postponement is irregular, but it does not operate as a release of the prisoner.

HABEAS CORPUS before the Supreme Court.

The petitioner was indicted for the murder of David D. Caldwell. He was tried at the November term, 1867, and convicted of manslaughter. A new trial having been granted by the court below, the State appealed to this court, and the order granting a new trial was affirmed. (Ante, 71.) The cause, having been remanded, was next called for trial at the May term, 1868; but the panel sum moned being exhausted and no jury obtained, the cause was continued. He then applied for a writ of habeas corpus before the supreme court, which was denied. At the August term, 1858, the cause was again called, the panel

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