case sturt versus Mellish July see Wilson v Lord bury Q b d the case be very  much entangle and the transaction of long stand the court choose rather to  dismiss the bill and leave the plaintiff to his action at law than direct a  account before the master a trust be where there be such a confidence between  party that no action will lie but I be a case mere for the consideration of  equity a letter of attorney from one merchant to another to get in debt will  not make the person so depute a merchant within the exception of James Lord  chancellor this cause have take up more time than the court can well spare but  I be Willing to hear such a entangle affair that I may not send it to a master  if it can be avoid I do not see that more paper or more letter can be lie  before a master than be already before I the plaintiff bill be not for a  general account but for a particular demand one of the two conhezimentos  receive by villan real be under a letter of attorney from Mr Sturt the second  be a demand of three other order or army debenture or folkas as they be call  in Portugal the matter for the consideration of the court be whether there  have be a satisfaction make by villan Beatrice in his lifetime or whether the  long acquiescence of the plaintiff and the statute of limitation be a bar to  his demand on the defendant as representative of villan real the first  question be whether the court ought to decree there have be a satisfaction of  these two demand or either of they second whether these demand be bar by the  statute atkins there be a account state between the plaintiff and villan real  on the that of September and a considerable debt be due from Sturt to villan  real a letter of attorney be execute by the plaintiff to villan real the next  day constitute he his sufficient attorney to recover in million of millrees  dollar and folkas I can presume in such solemn transaction in write that the  plaintiff will under his hand have acknowledge that he have a counter  obligation from villan real if he have not real such counter security though  it be not forthcoming now but as Mr Sturt swear that he have no such counter  obligation unless can find out some way of clear up this matter it be a strong  objection against send it to a account from the year to the year when villan  real die there be no evidence of the plaintiff make any demand upon he for the  two conhezimentos though be make other demand of a very small amount which be  a very material circumstance in favour of villan real if the plaintiff have a  mind to clear up this affair why do he not produce his copybook of letter  which all merchant keep and which have be allow to be read in evidence in this  court where the person who have the original letter refuse to produce they it  be extreme material that there be no demand of the conhezimentos or any part  thereof during all this time but the plaintiff even acquiesce under Mr villan  real refuse to answer so small a sum as pound millrees without any complaint  or expostulation upon it so it rest till both villan real and the plaintiff  come into England and now a demand be make after the death of Mr villan real  upon his executor who be not so capable of clear up this affair of the two  conhezimentos c as Mr villan real will have be in his lifetime from the  evidence I have hear if nothing more be before I and the presumption from  circumstance I shall have be of opinion that the plaintiff will have atkins er  p be bar of the account he demand for beside the length of time which be a  strong argument in favour of the defendant the counter security or obligation  be lose the letter likewise be lose and no copy of they have be produce by the  plaintiff vide standish v Radley ante then how be it possible to take a  account and therefore the plaintiff atkins own acquiescence from to be a  presumptive satisfaction Lacon v Briggs post vol Sherman versus Sherman vern  be a material case with regard to length of time and also to account current  between merchant note though length of time be no bar betwixt merchant and  merchant yet if deal betwixt they have cease for several year and one of they  die and the survive merchant bring a bill for a account the court will not  decree a account but leave the plaintiff to his remedy at law vern Sherman  versus Sherman suppose there be not all the objection arise from the plaintiff  contradict himself and the course of the evidence yet I shall be of opinion  that the statute of limitation will be a bar to the plaintiff demand the first  question be whether this case be at all within the statute of James and  whether it ought not to be consider as a trust in equity as the plaintiff  counsel insist I agree if it be a trust it will not be within the statute but  there be no colour to call it so here for a trust be where there be such a  confidence between party that no action at law will lie but be mere a case for  the consideration of this court but Lord Hobart it seem be of opinion that a  action will lie against a trustee at commonlaw Eq ab d f note and every  bailment may as well be say to be a trust as this the next question be if it  be not a trust whether it fall within the exception as between merchant and  merchant their factor and servant sect of the statute and be it enact that all  action of trespass c all action of account other than such account as concern  the trade of merchandise between merchant and merchant their factor and  servant shall be commence and sue within six year next after the cause of such  action or suit and not after it have be say that though Mr villan real be not  a merchant yet the plaintiff plain be but do the transaction in the present  case at all concern the trade of merchandise I be of opinion it do not for  these be only transaction with the king of Portugal and the government of  Portugal and be like transaction here with the victual office and other office  of the government it be not the deal of a merchant with any other person which  will make that person a trader within the meaning of this statute atkins  suppose a merchant who have debt owe he give another merchant a letter of  attorney to get in those debt such a transaction will not make such a person  so depute a merchant within the exception no more that if he have give the  letter of attorney to a person not a merchant then the next question will be  whether this case be not within and c for the amendment of the law I own I be  at first doubtful but upon consideration be of opinion that it be not within  the clause of that statute vide Prec in Chan Locky v Locky when these contract  be make the plaintiff be in Portugal in return into England Mr villan real be  then in England likewise and the plaintiff afterward return to Portugal  consider this then under the proviso of James sect provide and that if any  person that be or shall be entitle to any such action of account c be or shall  be at the time of any such cause of action give or accrue within the age of  year feme covert non compos chin imprison or beyond the sea that then such  person shall be at liberty to bring the same action so as they take the same  within such time as before limit after their come to or be of full age  discovert of sane memory at large and return from beyond the sea as other  person have no such impediment shall have do the plaintiff in this case have  be in England after both these demand have accrue he ought to have bring his  action within six year from that time consider the statute of Q and sect be it  further enact that if any person against who there shall be any cause of  action of trespass c or of action of account atkins er p c be or shall be at  the time of any such cause or suit or action give c beyond the sea that then  such person who be or shall be entitle to any such suit or action shall be at  liberty to bring the say action against any such person after their return  from beyond the sea so as they take the same after their return from beyond  the sea within such time as be respective limit for the bring of the say  action before by this act and by the say other act make in James l the  creditor here have the same privilege give he by this last act in respect to  the debtor be beyond sea when the atkins cause of action accrue as he have by  the former act in respect to his be beyond sea himself I agree with the  plaintiff counsel that these statute must be so consider as if the clause in  the last have stand original in the statute of king James what be the save  here why that if any person be beyond sea at the time of the cause of action  he shall be at liberty to bring the same action when return from beyond the  sea so as c therefore this must be a person absent at the time the action  accrue for if he be not beyond sea then he be out of the save of this statute  the statute of pound and say if a debtor be beyond sea at the time c that such  person who shall be entitle to such suit shall be at liberty to bring c so as  they take the same after their return from beyond sea c within six year within  six year after what why after the return of the debtor which be the natural  and only construction of the word after their return the plaintiff own  privilege be go for he be return into England and take it that this action  accrue from the execution of the contract why then from his be return into the  kingdom the time will run unless he take the advantage of his debtor be out of  the kingdom and the plaintiff go abroad again will give he no privilege  whatsoever for that be go by his have once return to the kingdom after cause  of action accrue suppose a creditor both of nonsane memory and out of the  kingdom come into the kingdom and then go out of the kingdom his nonsane  memory continue why his privilege as to be out be go and his privilege as to  nonsane will begin from the time he return to his sense so here the plaintiff  have a double privilege but by be in the kingdom after the cause of action  have accrue and not bring n though be go out of the kingdom again his  privilege be go as much as if lie whole six year so likewise the debtor have  return to the kingdom and the plaintiff bring no action against he within the  six year this privilege be likewise go notwithstanding the plaintiff be out of  the kingdom himself atkins as this case be very much entangle though the  evidence be not quite positive yet it be sufficient to justify I in dismiss  the plaintiff bill rather than to direct a account where after a long  litigation it may come back again upon the very same point as in all  probability there will be no new light before the master and therefore I will  dismiss it without cost but if the plaintiff shall have a mind to bring a  action at law upon the promise pretend to be make by villan real with regard  to the three folkas I will direct that the time which have run during the  pendency of this suit shall not be take advantage of at law vide lake v hay  ante vol anon ante