Trinity term 1839, when a verdict was taken for the plaintiffs, by consent, for 441. 12s. 8d., subject to a special case. A fiat in bankruptcy being subsequently issued against the defendant, the plaintiffs declined to proceed with the argument of the [274] special case; whereupon the court, on the application of the defendant, granted a new trial (a).

The cause was consequently tried a second time before Erskine J. at the London sittings after last Michaelmas term.

The

The facts as they appeared at both trials were briefly as follows:-The plaintiffs were ironfounders, and wholesale dealers in agricultural implements, &c. The defendant, down to June 1834, carried on the business of a retail ironmonger. action was brought to recover the balance of an account for goods sold by the plaintiffs to the defendant between June 1830 and June 1834. The value of the goods supplied to the defendant within six years before the commencement of the action was only 31. 9s. 3d; but the whole amount of what was due from him (after giving him credit for cash paid and goods sold) was 441. 12s. 8d. It was proved by the clerk to the plaintiffs, that in May 1834 he called upon the defendant for a settlement of the plaintiffs' account, when the defendant stated, that if the plaintiffs gave him credit for the goods he had furnished to them, there would be but little between them. It was left by Erskine J. to the jury to say, whether the defendant had made any payment, or any delivery of goods to the plaintiffs by way of payment, within six years before the action was commenced; or whether there had been any agreement between the parties to set the items on one side of the account against those on the other.

The jury returned a verdict for the defendant; but leave was reserved to the plaintiffs to enter a verdict for them on the second issue for 31. 9s. 3d. ; and on the third issue for 411. 3s. 5d.; making together the sum of 441. 12s. 8d.

[275] G. Hayes in last Hilary term (January 11) obtained a rule nisi accordingly; and referred to Catling v. Skoulding (6 T. R. 189); and also to Inglis v. Haigh (8 M. & W. 769), which, he contended, was an authority that ought to be reconsidered.

W. H. Watson now shewed cause. Two questions arise in this case. First, whether the dealings between the parties are within the exception as to merchants' accounts in the third section of the statute of limitations (d); secondly, there being items of account between the parties within six years, whether those items take the whole account out of the operation of the statute, the account remaining open and unsettled.

First, even if these are to be considered as merchants' accounts, still the defendant would be entitled to arrest the judgment (Inglis v. Haigh, 8 M. & W. 769); as it has been decided that the exception in the statute of limitations as to merchants' accounts, applies only to actions of account, or possibly to actions in the case for not accounting (vide post, 278). But it is [276] submitted that the accounts between these parties are not merchants' accounts within the meaning of the statute. They are merely debts due from one party to another, amounting to nothing more than cross demands, which, before the statute 2 G. 2, c. 22, could not have been set off against each other. If accounts such as the present were to be considered as merchants' accounts, an action for goods sold and delivered would not lie; for the contract would be to account, and not to pay de die in diem. Catling v. Skoulding (6 T. R. 189) is, in fact, an authority precisely in point for the defendant. Cross sales of goods were there denied

(a) Ante, vol. ii. p. 843, 3 Scott, N. R. 174, 9 Dowl. P. C. 629.

(d) 21 Jac. 1, c. 16, s. 3, enacts "that all actions of trespass quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin for taking away goods and cattle, all actions of account, and upon the case, other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent, and all actions of assault, &c., or any of them, which shall be sued or brought at any time after, &c., shall be commenced and sued within the time and limitation hereafter expressed, and not after (that is to say), the said actions upon the case, other than for slander, and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum fregit, within three years next after the end of this present session of parliament, or within six years next after the cause of such actions or suit, and not after," &c.

to be merchants' accounts within the exception in the statute.

That case was put

At

upon the ground that where there were mutual accounts between parties, the latter items would draw down the items which were beyond the six years; because credit having been given within that period, that fact was taken as evidence of an acknowledgment of there being an open account between the parties, and of a promise to pay the balance, so as to take the case out of the statute of limitations. An action of account will not lie upon a mutual sale of goods from one tradesman to another. common law the action of account only lay against a bailiff or receiver, or a guardian in socage; and the 4 Anne (b) merely extends the right to bring that action to demands against the executors of an accountant, and to cases between joint-tenants and te-[277]nants in common. But a mere cross demand never gave an action of account. Inglis v. Haigh (8 M. & W. 769), which was very elaborately argued, and the judgment in which was delivered after time taken to consider, has fully settled the point. The exception in the statute applies only to cases where a merchant has consigned goods, and where there is a consignee who would be bound to account. The words "their factors or servants" give the clue to the interpretation of the whole passage.

With respect to the second issue, which raises the question whether the statute of limitations applies to the sum of 31. 9s. 3d. parcel of the sum mentioned in the first count the defendant has paid 31. 8s. into court; which will cover the 31. 7s. 4d., the sum claimed by the plaintiffs in respect of the items accruing within the last six years of the account. The defendant says that the whole amount (except the 31. 8s. paid into court), including the 31. 9s. 3d., accrued before the six years. [Erskine J. The division of the sums in the pleadings appears to be quite arbitrary, and introduced merely for the purpose of letting in different answers.] It may be admitted that before the passing of Lord Tenterden's act (b)2 it had been held, that if goods had been bought within six years, so as to form an item of a running account between the parties, that would have drawn down the other items of the account, and thereby taken [278] them out of the operation of the statute of limitations (vide supra, 276). But Lord Tenterden's act requires that every acknowledgment or promise of a debt shall be in writing to have that effect; and the introduction of the proviso, that the previous enactment shall not take away the effect of any payment, shews that, but for the express exception, the part payment of a debt would not have prevented the residue of such debt from being barred by the statute. This is the view taken of the 9 G. 4, c. 14, in Williams v. Griffiths (5 Tyrwh. 748, 2 C. M. & R. 45), and Waugh v. Cope (6 M. & W. 824). [Tindal C. J. It never was supposed that items on one side of an account only would draw down former items.]

If the court should finally be of opinion that the evidence is sufficient to enter a verdict for the plaintiffs, as prayed by the rule, then the defendant would crave leave to move in arrest of judgment. [Tindal C. J. Should he not have moved before?] Whilst the verdict for the defendant stood, he could not move in arrest of judgment.

G. Hayes in support of the rule. The exception contained in the third section of the statute of limitations is not confined to dealings between merchants and their factors; it extends to the cases of independent merchants dealing with one another.

(b) 4 Anne, c. 16, s. 27, by which actions of account may be brought against the executors and administrators of every guardian, bailiff and receiver, and by one joint tenant or tenant in common, and his executor or administrator, against the other, as bailiff, for receiving more than his share, and against his executor or administrator. The action of account was given to executors by stat. 13 Ed. 1, c. 23; to the executors of executors by 25 Ed. 3, s. 5, c. 5; and to administrators by 31 Ed. 3, c. 11. See the stat. of Marlbridge (52 H. 3, c. 23), and the stat. of Westminster 2 (13 Ed. 1, s. 1),

c. 11.

(b)2 9 G. 4, c. 14, s. 1, enacts, "that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments or either of them (21 Jac. 1, c. 16; 10 Čar. 1, sess. 2, c. 6; the Irish stat. of limitations), or to deprive any party of the benefit thereof, unless such acknowledgment or promise, shall be made or contained by or in some writing to be signed by the party chargeable thereby;" "provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever."

[Cresswell J. The act speaks of accounts "between merchant and merchant, their factors or servants;" but it does not mention "their customers."] The effect of the construction contended for on the other side would be to deprive merchants of the benefit of the exception where they had dealings merely with each other. At common law the action of account lay in all cases of agency. In all the old authorities it is stated that it will lie against an agent, [279] bailiff or receiver. In Selwyn's Nisi Prius title, Account (pp. 1, 2, 7th ed.), it is said, "at the common law, account will lie against a bailiff, a receiver, and, in favour of trade and commerce, by one merchant against another;" and the same doctrine is laid down in Buller's Nisi Prius (p. 127), and in Bacon's Abridgement, Accompt (A.); where the reason given is, that "between these there was such a privity, that the law presumed them conversant with each other's disbursements, receipts and acquittance. On the one hand, where there is agency, it is not necessary that the parties should be merchants; so, on the other hand, where the parties are merchants, it is not necessary that there should be any agency. "Accounts between merchant and merchant" are clearly not confined to cases, where the one is the agent for the other, or to cases where parties are concerned in merchandize in the modern and limited sense of the word "merchant"; but extend to all shopkeepers. In Hamond v. Jethro (2 Brownl. 99) it is said, "that it was agreed by all the justices, that by the law of merchants, if merchants join in trade, that, of the increase of that, if one die, the other shall not have the benefit of survivorship: and so of two joint shopkeepers; for they are merchants." [Tindal C. J. There is no doubt of that. But it does not follow that accounts between two several shopkeepers without any other privity between them, are to be considered as "merchants' accounts" within the statute.] An account between two parties must be either stated or open. Here, it had not been stated, and, therefore, it clearly remained open. And where there is such an open, current, unsettled account between two parties, who are merchants in law, with the understanding between them that the items on the one side are to go against the items on the other, it surely must be considered as a mer-[280]-chants' account within the statute. [Erskine J. But it was not shewn at the trial that there was such an agreement.] It was undoubtedly treated at the trial as one current account between them. [Cresswell J. That might make a set-off unnecessary.] The application made by the plaintiffs' clerk to the defendant shews the light in which the account was considered by the parties. He applied for a settlement of the account, not for payment of the price of the goods; it is therefore clear the plaintiffs only demanded the balance of an account. The case of Inglis v. Haigh (8 M. & W. 769) was decided after the present action had been tried. After that decision the plaintiffs in this case, if successful in this application, may not think it expedient to proceed to judgment. But this is not a motion in arrest of judgment: the question is, how the verdict is to be entered.

As to the second point, there are three ways by which claims, which would otherwise be barred by the statute of limitations, may be taken out of its operation. One is, by an acknowledgment of the debt; which, before Lord Tenterden's act, might be verbal; another is, by payment of money in part-payment of the whole debt; which is an acknowledgment of a debt being due, not in words, but by an act done. The third method is, where there is a mutual account between parties, who have had dealings with each other within the six years, with reference to, and upon the faith of, such account being still unsettled between them. That was decided in Catling v. Shoulding (b); where the court were clearly of opinion that such a case was taken out of the operation of the statute. Where goods are supplied under such circumstances, although they do not technically amount to a part payment, yet they are equivalent to it; and per-[281]-haps ought to operate more strongly than a payment, in shewing that the account is still unsettled and open. Lord Kenyon in that case uses the following language: "Here are mutual items of account; and I take it to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item and credit in an account given by one party to the other, is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained; and any act which the jury may consider as an acknowledgment of its being an open account, is sufficient to take the case out of the statute. Daily

(b) 6 T. R. 189. And see Clarke v. Bradshaw, 3 Esp. N. P. C. 155; Webber v. Twill, 2 Wms. Saund. 127, n. (6).

It

experience teaches us that if this rule be now overturned, it will lead to infinite injustice. In Cotes v. Harris (Bull. N. P. 149), all the items were on one side; and Denison J., who well knew what was the proper replication in such cases, and was well acquainted with the import of the statute of limitations, said, where all the items are on one side, the last item which happens to be within six years shall not draw after it those that are of longer standing: but it was not doubted there, but that if there had been mutual demands the plaintiff might have recovered." The terms acknowledgment or promise," in the 9 G. 4, c. 14, s. 1, do not apply to such transactions as took place between the parties in this case and in Catling v. Skoulding. Still less can a delivery of goods be construed to be an "acknowledgment or promise by words only." The court are now called upon entirely to disregard that expression. It is argued on the other side that the proviso shews that the effect of a part-payment would not have been preserved by the earlier portion of the section, and that it was necessary that it should be expressly saved by such proviso; but that is not a correct inference. The proviso may have been added ex abundanti cautelâ. [Coltman J. seems more pro-[282]-bable that the case of a delivery of goods as an acknowledgment would have been expressly excepted, if it was so intended to be, than that of a part payment.] The present case is quite beside the original intention of the statute, which was to prevent loose evidence of verbal acknowledgments. In Williams v. Griffiths the facts were very different from those of the present case. One of the parties was tenant to the other, and was also his servant, and was to receive wages from him. There having been no payment on either side, the court held that this was not such an open account between them as would take the case out of the statute of limitations. That case is not inconsistent with Catling v. Skoulding; or if so, it was not so solemnly decided. There was, besides, no evidence in that case of any agreement to set one claim against the other; a circumstance on which Parke B. comments in giving judgment. In Willis v. Newham (3 Y. & J. 518) it was held that a verbal acknowledgment of a part payment was not sufficient to take the case out of the statute; and the same point was decided in Bayley v. Ashton (12 A. & E. 493, 4 P. & D. 204), and in Maghee v. O'Neil (7 M. & W. 531). [Cresswell J. That is a wholly different point.] In Tippets v. Heane (1 C. M. & R. 252, 4 Tyrwh. 772), Parke B. says, "the principle upon which a part payment takes a case out of the statute, is, that it admits a greater debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt." And his lordship expressed a similar opinion in giving the judgment of the court in Waters v. Tompkins (Tyrwh. & G. 137, 2 C. M. & R. 723, 725). The cases of Hart v. Nash (2 C. M. & R. 337, 5 Tyrwh. 955), and Hooper v. Ste-[283]-phens (4 A. & E. 71, 7 C. & P. 260. S. C. nom. Cooper v. Stevens, 5 N. & M. 635), establish that a delivery of goods may be equivalent to a part payment in money. Now, in the present case, it is clear, that the delivery of goods had been so treated by the parties; the defendant having been applied to for payment, not of the price of the whole of the goods, but only for the balance of the account. There is no sound and substantial difference between those cases and the present.

TINDAL C. J. To this action, which is for goods sold and delivered, the defendant, except as to 31. 8s. paid into court, has pleaded the statute of limitations. The plaintiffs, in order to avoid the effect of the statute, have in their replication divided their demand into two, alleging, as to 31. 9s. 6d., part thereof, that the causes of action did accrue within six years before the commencement of the suit; and as to the rest of their claim, "that the said residue of the said causes of action were and are and relate to accounts still open and unsettled concerning the trade of merchandize between merchant and merchant, that is to say, between the plaintiffs and defendant as merchants," &c. What the object of the plaintiffs could be, except indeed with a view to costs, in separating their demand, when the whole arose out of the same series of transactions, it is difficult to say. However, they have a right to our opinion upon the two questions thus raised. In Inglis v. Haigh (8 M. & W. 769. Supra, 277) the court of Exchequer seem to have decided that the exception in the statute of limitations, as to merchants' accounts, applies only to cases where an action of account, or an action on the case for not accounting, will lie, but not to an action of indebitatus assumpsit. Without going so far as that decision (though I do not mean to [284] impugn it), I think that the exception is not applicable where an action of account cannot be maintained; and I am of opinion, that, under the circumstances of the

present case, an action of account would not lie. [His lordship read the third section of the statute, 21 Jac. 1, c. 16 (ante, p. 275, n. (d)).] The exception, therefore, extends only to such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, and cannot apply except where an action of account, or an action on the case for not accounting, would lie. Is this a case in which an action of account could be maintained? It is laid down in Selwyn's Nisi Prius, p. 1, 8th ed., that, "by the common law, an action of account for the rents and profits, may be maintained by the heir after he has attained the age of fourteen years, against the guardian in socage; so at the common law, account will lie against a bailiff or receiver, and, in favour of trade and commerce, by one merchant against another." It has not been contended, that an action of account will lie in every case where there have been sales of goods between tradesmen, but only where there are mutual accounts, and an agreement has been come to, that the one shall be set off against the other, and the balance alone is claimed by the party in whose favour it is found; for, otherwise, the case could not be distinguished from the ordinary one of goods sold and delivered, with a claim of set-off of a similar description. The cases put in Selwyn shew that the action of account is founded upon some trust or privity between the parties; as, for instance, there is a confidence or trust between the heir and his guardian; between the owner of land and his bailiff or receiver; and between merchant and merchant. The exception in the statute extends, not only to accounts between merchant and merchant, but also to [285] accounts between merchants and "their factors or servants;" which latter words clearly import dealings creating a trust. Although account would lie where a merchant in this country consigns goods to a merchant or factor abroad, for sale on his account upon commission, it by no means follows that the action could be maintained in the simple case of mutual sales. The action of account is more like a bill in equity for enforcing the execution of a trust, than an ordinary action. The first judgment is, that the defendant do account, which is commonly called a judgment quod computet; whereupon, the defendant offering to account, the court assigns auditors to take and declare the account between the parties; and then the final judgment is, that the plaintiff do recover against the defendant so much as the latter is found to be in arrear. Neither in Selwyn nor in Buller is there a reference to any case where this action has been held to lie as between merchant and merchant. The only authority I have found is in Fitzherbert's Natura Brevium, 117 D., where it is said, "If two merchants occupy their goods and merchandises in common unto their common profit, one of them shall have an action of account against the other in the county, or in the Common Pleas ;" and the form of writ is given, commanding "A., merchant, that justly, &c. he render to B., merchant, a reasonable account for the time in which he was the receiver of the money of him the said B., from whatever cause and contract coming to the common profit of them the said A. & B.; as by the law of merchants he may reasonably shew that he ought to render to him," &c.; shewing a privity between the two, and agreeing with the limited notion already expressed with regard to the action, rather than with a case of ordinary dealings between one tradesman and another. Is this a case of an account concerning the trade of merchandize between merchant and merchant? [286] Passing over the question whether ordinary tradesmen can be regarded as "merchants" (a) within the meaning of the statute-when this case is considered, it is nothing more than the ordinary one of two tradesmen selling goods to each other, without any agreement that the goods delivered by the one shall be considered as payment for those delivered by the other, or any understanding that the balance only shall be enforced on the one side or the other. There was nothing to prevent one party from suing the other for the whole of his account, and the other from bringing his cross action for his entire demand. It appears to me, therefore, that this is not an account concerning the trade of merchandise between merchant and merchant, and that the exception in the statute was not meant to apply to such a case.

With respect to the 31. 9s. 3d., I cannot help thinking that it was separated from the general account in order that the plaintiffs', in the event of their failing upon one point, might have the chance of succeeding upon the other, and so get their costs. pon this part of the case it has been contended, that, nothwithstanding the 9 G. 4, e. 14, there has been such a course of dealing amounting to an acknowledgment

(a) Vide T. 4 H. 6, fo. 26, pl. 6.