Exception was taken by the defendant’s counsel to the ruling of His Honor in regard to the statute of limitations, but in that, we hold there was no error.
The last item of the account was charged in 1866, and more than three years having elapsed after the first day of' January, 1870, before the commencement of this action and pleading the counterclaim, the statute was a bar, unless the running of the statute was stopped by the removal of the defendant from the state in 1869. Section 41, C. C. P., chapter 4, title 1, provides : “ If when the cause of action accrue against any person, he shall be out of the state, such action may be commenced within the times herein respectively limited, after the return of such person into the state-;- and if, after such cause of action shall have accrued, such person shall depart from and reside out of.the state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” But section 10, chapter 1, of the same title provides : “ That this title shall not extend to actions already commenced, or to cases when the right of action has-already accrued, but the statutes in force previous to the ratification of this act shall be applicable to such cases.”
This action had accrued on the defendant’s account, before the adoption of the code in 1868, and therefore his case-*242does not come within its provisions : nor is he helped by the “ statutes in force previous to the ratification of the code,” for the exception to the barring of actions by the statute on open accounts previous to the adoption of the code is to be found in section 10, chapter 65, of the Revised Code, which provides: “ That when any person against whom there is ■cause of action, shall be beyond sea, or a non-resident of the state, at the time such cause of action accrued, the plaintiff may bring his action against such person after his return within the time as heretofore limited for bringing such actions.” But the defendant’s cause of action had accrued in 1866, and he then had not removed from the state; so his case does .not fall within this exception, and the statute is a complete 'bar to his action, and it is therefore needless to consider his exceptions taken to the refusal of the court to admit the ■evidence offered by the defendant, tending to establish the justness of his account, for it is immaterial whether the .account is correct or not, if it is barred by the statute.
The only other exception presented for our consideration -is to the exclusion of the testimony of the defendant, that the bond sued on had been paid.
The ruling of the court upon this point is also sustained, ■for the defendant was clearly an incompetent witness for that purpose, under the provisions of the act of 1879, ch. 183. This act provides that no'person who is a party to a suit ■now existing, or which may hereafter be commenced in any ■court in this state that is founded on any bond under seal for the payment of money, executed previous to the first ■day of August, 1868, shall be a competent witness. The witness offered is a party to the suit, the action is founded ¡upon a bond under seal, and it was executed before the first day of .August, 1868. It is just such a case as it was intended the act should apply to. There is no error. Thejudg-rment of the superior court must be affirmed.
No error. Affirmed.