The  court  below  decided,  and  so  charged  the  jury,  that  the  tender  of  the
$16  was  not  conclusive  that  so  much  rent  was  due  to  the  defendant.  That
the  excess  of  payments  were  not  to  be  deemed  made  in  ignorance  of  the  law,
but  of  the  facts,  —  the  rent  being  reserved  in  sterling  money,  but  estimated
and  paid  in  currency ;  and  that  the  action,  therefore,  would  lie  for  the  ex-
cess, unless  barred  by  the  statute  of  limitations ;  that  the  receipts  of  July
26,  1797,  and  of  July  14,  1814,  were  evidence  that  settlements  were  then
made,  and  that  the  parties  could  not  go  back  beyond  either  of  those
periods,  unless  the  testimony  of  Joseph  Dutcher  should  be  deemed  sufficient
to  take  the  case  out  of  the  statute  of  limitations ;  that  this  was  a  question
of  fact  for  the  jury.  If  they  thought  there  was  evidence  of  an  admission
of  indebtedness  by  Clarke,  or  a  new  promise  by  him,  they  might  go  through
the  whole  accounts ;  otherwise  not ;  that  the  matters  in  evidence  on  the
part  of  the  defendant  were  not  a  conclusive  bar  of  the  plaintiff's  action.
To  all  these  several  decisions  the  defendant  excepted.  The  jury  found  a
verdict  for  the  plaintiff  with  $50  damages,  upon  which  the  C.  P.  rendered
judgment  with  costs ;  and  the  defendant  brought  error  to  this  court.
G.  Morrelly  for  the  plaintiff  in  eri'or.
I.  Seelye,  for  the  defendant  in  error.
