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to pay the balance of the same. But this construction will not avail the plaintiff, because the account which was added to the balance of November, 1817, did not continue open and running till January, 1824, but was open and running only for a month at a time. The acknowledgment, which is to be inferred from the mutual and open accounts, within six years, should be limited to the items appearing in the same. If, for example, one of the items should be a sum of money, being the balance of a former account settled more than six years before the action, it would be protected from the operation of the statute, by the items which are within six years. In such a case, the law would infer a promise to settle for all the items of the new account. The promise and acknowledgment may reasonably be extended so far; but not to the various charges and disbursements in former times, from which the balance charged in the open account arose. What of doubt now appears, might in time of the transaction have been explained by papers, vouchers, or witnesses; but it would be doing great violence to go behind the account, which is open and current, and behind a hundred or more stated accounts, to inquire, if, at some former period, during the trade between the parties, perhaps some twenty, or forty years ago, a mistake did not happen in one or more of the settlements, which, if corrected, would make the balance constituting one item in the open account to be either too little, or too great, or on the other side." 1

1 See also, Ferguson v. Fyffe, 8 Clark & Finn. R. (H. Lords); [Clark v. Jenkins, 3 Rich. Eq. (S. C.) 314.]

CHAPTER XV.

MERCHANTS' ACCOUNTS.

§ 152. THE words of the exception in the third section of the statute of James, in respect to merchants' accounts, which was referred to in the commencement of the preceding chapter, are, "all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants." In the latest revised acts of limitation in this country, this exception has not been retained; but, in those States in which it has been deemed expedient to dispense with it, it might be relied on in respect to causes of action which accrued when the exception was in force.2

§ 153. The above exception has, in two rather recent cases, been subjected to technical disquisition, and they have established an interpretation before not clearly settled. According to Erskine, J., in Cottam v. Partridge, in the English Common Pleas,3 the exception seems to have been inserted in order to give merchants the same period of time for proceeding at law, to compel their correspondents or agents to furnish accounts, as they would have had if they had proceeded to enforce an account in equity. The meaning of the words of the exception is not "other than in an action of account,' but "other than actions for an account," and refer seemingly to actions strictly brought for an account. The court were all of opinion, that the exception was confined to accounts in respect of which the one party might maintain against the other an action of account, or an action upon the case, for not accounting. In the Court of Ex

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1 It has not been retained, as will appear by referring to the Appendix, in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, New York, Delaware, Ohio, Michigan, Missouri, Arkansas.

2 See ante, Ch. II. § 22.

8 Cottam v. Partridge, 4 M. & Grang. R. 290.

"Al

chequer, Baron Parke (in delivering the judgment of the court), in Inglis v. Haigh,1 says, that the exception does not apply to an action of assumpsit for the several items of which the account is composed, or for the general balance, but only to a proper action of account, or perhaps, also, to an action on the case for not accounting. The action was assumpsit for work, and labor, and commission, money lent, and on an account stated; the plea, that the action did not accrue within six years; and the replication, merchants' accounts, and that the causes of action were items in an open unsettled account between them as such merchants, and which said account contained various items in favor of the defendant, and the balance due on which said account the plaintiffs sought to recover. The rejoinder was, that no item on either side of the said account accrued due within six years before the commencement of the suit, and that, more than six years before the commencement of the suit, the plaintiffs had stated the said account to the defendant, as the balance thereof in the replication mentioned. There was a general demurrer, and joinder. though," said Baron Parke, "there is no reported case expressly governing the present, yet there are many coming very near it, and in which the dicta of very eminent judges fully warrant the view we take of the subject." And he cites Webber v. Tivill, 2 Saund. R. 124; Martin v. Delboe, 1 Mod. R. 70; Farringdon v. Lee, 1 Mod. R. 269. The opinion of the court "being, that the replication is bad, it is perhaps not absolutely necessary for us to say any thing as to the rejoinder by which the defendant seeks to get rid of the replication, by saying that all the items of the account are of more than six years' standing. We think it, however, right to say, that, in giving judgment for the defendant, we proceed solely on the insufficiency of the replication, and not on the rejoinder." The view of the court "was much assisted by considering that the exception clearly would not apply to an action of debt, brought for the very same demand; and it is very difficult to believe that the legislature could have intended to preserve the right in one form of action, but to bar it in another." The court were aware, "that in confining the exception to actions of account, they were deciding, in some measure, in opposition to what is represented, though not very confidently, to be the law, by Mr. Sergeant Williams, in one of his very learned notes to Webber v. Tivill." 2

1 Inglis v. Haigh, 8 Mees. & Welsb. (Ex.), R. 769.
2 See ante, Ch. IX. § 69, respecting the action of account.

§ 154. The question, whether the exception as to merchants' accounts applied to accounts in which there had been no item within six years,1 is one which has hitherto been the subject of no small degree of litigation, and of conflicting adjudication. On one side, it has been contended that the exception in the statute expressly, and without any qualification, excludes merchants' accounts, and that, if the action concerned the trade of merchandise between merchant and merchant, no length of time is a bar, as the exception prevents its application to such a case. On the other side, it is contended, that the exception, even as to merchants' accounts, extends only to cases in relation to which there have been some transactions within six years. In a case which was referred to the three judges of the King's Bench, namely, Jones, Croke, and Barkely, respecting an account between two merchants, to which was pleaded the statute of limitations, they certified, that the account was not barred, because the account was not finished, and also because it was between merchants.2 The latter ground certainly seems to favor the construction, that matters of merchandise, between merchants, were not within the statute. This case has, however, been pronounced as too loose, and too concise, and depending too much upon the first ground, to be regarded as of much authority on the present subject. A more direct and weighty authority, in favor of this side of the question, is that of Lord Hardwicke, who said, that the exception as to merchants' accounts is to be confined to open accounts merely; for between common persons, so long as the account is continued, the statute does not bar. The exception, therefore, he said, must mean something more; and he seemed to think, that, between merchants, an open account would do, though there had been no dealing within six years. And it was also observed, by Lord Kenyon, that, where there was no item of account at all within six years, the plea of the statute would bar, unless the plaintiff could bring his case within the exception concerning merchants' accounts, and that then the plaintiff is not bound, though there be no transaction of any kind between the parties for six years.5 In this case, however, there were credits on each side, within six years; and,

1 See preceding chapter.

2 Sandys v. Blodwell, Jones, R. 401.

8 Per Chancellor Kent, in Coster v. Murray, 5 Johns. Ch. R. 522.
4 Referred to by Lord Eldon, in Foster v. Hodgson, 19 Ves. 180.
Catlin v. Skoulding, 6 T. R. 189.

therefore, the observations of Lord Kenyon were rather extrajudicial. Other English authorities would much favor the opposite construction, that the exception, as to merchants' accounts extends to no other accounts between them, than those in relation to which something has been transacted within six years.2 And Lord Hardwicke gives an opinion on the subject, which is not reconcilable with that which has been referred to. The case does not state that the account concerned merchandise between merchant and merchant, but he observes, "that it was a pretty difficult construction here to apply that exception in the statute relating to merchants' accounts. It is not that the defendant may not plead the statute, in all cases where the account is closed and concluded between the parties, and the dealing and transaction over; it was not the meaning to hinder that; but it was to prevent dividing the account between merchants, where it was a running account, when, perhaps, part might have begun long before, and the account never settled, and perhaps there might have been dealings and transactions within the time of the statute." In a bill for an account of mercantile accounts, before Lord Northington, the defendant set up the statute of limitations, and his lordship observed, "that merchants' accounts, after six years' total discontinuance of dealings, were as much within the statute as other accounts. The' difference," he said, "was, that a continuance afterwards would prevent the statute running against merchants' accounts, but would be a bar to all articles before six years, in other accounts."4 So, in a bill for an account, and a plea of the statute, with an averment that it was not a merchants' account, before Lord Rosslyn, it was held by his lordship, that the meaning of the exception was, that, if any transaction between the parties took place within six years, none of the transactions should be barred; but that, when all the transactions were over six years, the statute might be pleaded, as well to merchants' accounts as others; and the plea was allowed.5 Lord Eldon, in a still later case, viewed the point as still unsettled. In this case,

1 So considered by Chancellor Kent, in Coster v. Murray, 5 Johns. Ch. R. 522.

2 Webber v. Tivill, 2 Saund. 124; Bridges v. Mitchell, Gilb. Eq. R. 224.

3 He accordingly allowed the plea of the statute. Welford v. Liddle, 2 Ves. 400. 4 Martin v. Heathcote, 2 Eden, 169.

5 Crawford v. Liddle, cited by the counsel in Jones v. Pengree, 6 Ves. 580, where the same question was discussed, but the cause went off on another point. The same may be said of Duff v. East India Company, 15 Ves. 198, where the question was treated as an open question, but the Master of the Rolls decided the cause on other grounds. Foster v. Hodgson, 19 Ves. R. 180.

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