G. Hayes in last Hilary term (a) obtained a rule nisi accordingly; and referred to Catling v. Shoulding (b); and also to Inglis v. Haigh (c), 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 (d); 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. (e) But it is (a) January 11. (d) 21 Jac. 1. c. 16. s. 3. or brought at any time after, (d) Inglis v. Haigh, 8 M. (e) Vide post, 278. 1842. Соттам V. PARTRIDGE. 1842. COTTAM บ. 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 PARTRIDGE. 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 (a) is, in fact, an authority precisely in point for the defendant. Cross sales of goods were there denied to be merchants' accounts within the exception in the statute. That case was put 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. At 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 (a) 6 T. R. 189. (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.S. 8. 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. 1842. Соттам V. nants in common. But a mere cross demand never gave an action of account. Inglis v. Haigh (a), which was very elaborately argued, and the judgment in which was delivered after time taken to consider, has fully PARTRIDGE. 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 3l. 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 37. 8s. paid into court), including the 3l. 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) 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 (a) 8 M. & W. 769. (b) 9 G. 4. c. 14. 8. 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 Car. 1. sess. 2. c. 6.; the Irish stat. of limitations), 1842. Соттам V. them out of the operation of the statute of limitations (a). But Lord Tenterden's act requires that every acknowledgment or promise of a debt shall be in writing to PARTRIDGE. 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 (b), and Waugh v. Cope. (c) [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. [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, (c) 6 M. & W. 824. (a) Vide suprà, 276. (b) 5 Tyrwh. 748., 2 C. M. & R. 45. 1842. COTTAM V. bailiff or receiver. In Selwyn's Nisi Prius, title, Account (a) 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 PARTRIDGE. same doctrine is laid down in Buller's Nisi Prius (b), 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 (c) 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(c) 2 Brownl. 99. (a) Pp. 1, 2. 7th ed. (6) P. 127. |