it was held, that a special act of limitations by which such actions are limited to one year, commenced running at the time of the first breach; the amount recoverable therefor being the same as for both breaches.1

§ 141. If an action be commenced immediately when a person becomes chargeable with negligence or unskilfulness, perhaps no more than nominal damages may be proved, and no more recovered; but on the other hand, it is perfectly clear that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear that the damage is not the cause of the action.2

§ 142. There may be sometimes a difference of opinion as to the precise time at which the default should be fixed. Where a captain of a ship insured, carried her, barratrously, out of the course of her voyage, and procured her to be condemned in a Vice-Admiralty Court, sold her, and delivered her up to the purchaser, and the loss was laid in the declaration to have been by the barratry of the master; it was held, on the plea of the statute, that it was only from the last event that the statute began to run, as between the assured and the underwriter. In an action against persons who had been directors of a bank in Massachusetts, founded on the equity of the statute incorporating the bank, for mismanagement of the affairs thereof, it was held, that the action was barred when six years had elapsed from the time the bank became publicly insolvent. It was also held, that

1 Brown v. Houdlette, 1 Fairf. (Mẹ.), R. 399. [But where more than twenty years after the making of the bond a sheriff brought an action against his deputy on his bond, among other things, to account once in six months, and alleged that the deputy had rendered no account since his appointment, it was held, that although there was a breach of the condition of the bond more than twenty years before action brought, yet the sheriff was entitled to recover for all breaches within twenty years. Austin v. Moore, 7 Met. (Mass.), 116; Arnott v. Holden, 16 Eng. Law & Eq. 142. And see ante, §§ 110, 111.]

2 Wilcox v. Executors, supra. And see Sheriff of Norwich v. Bradshaw, 1 Cro. Eliz. 53. Where a person has been guilty of negligence or a breach of duty, the gist of the action is the negligence or breach of duty, and not the injury consequent thereon. The statute, therefore, begins to run from the negligence or breach, whether the action in point of form, be case or assumpsit. Argall v. Bryant, 1 Sandf. (N. Y.), Sup. Ct. 98; Sinclair v. Bank, 2 Strobh. (s. c.), 344; Ellis v. Kelso, 18 B. Mon. (Ky.), 296; Lathrop v. Snellbaker, 6 Ohio (N. s.), 276.]

8 Hibbert v. Martin, Camp. R. 539.

although the act of limitations is not applicable to bank-notes, where an action is brought thereon against the corporation, as the notes are never paid unless given up by the holder, at the time of the payment, yet where the action is brought against the directors, and is founded on their imputed malfeasance or non-feasance, there was no distinction in the application of the act of limitations, between such a case and any other special action on the case. Where a sheriff was sued for an insufficient return upon an original writ, by reason of which the judgment rendered in that suit was reversed; it was held, that the statute began to run from the time of the return, and not from the reversal of the judgment. The court considered that the plaintiff should be presumed to have seen the defect in the return when it was made in the clerk's office, and that he should have procured its amendment.2 So in an action against an officer for taking insufficient bail, in which the plaintiff's counsel contended, that the right of action against the officer did not commence until the insufficiency was ascertained by the execution issued, on the scire facias being returned unsatisfied. But the opinion of the court was, that the plaintiff might have commenced his action against the defendant immediately after the return of non est inventus upon his execution against the principal debtor; and as more than six years had elapsed from that time before action brought, the action was barred.

1 Hinsdale v. Larned, 16 Mass. R. 68.

(Mass.), 182.]

[And see Baker v. Atlas Bank, 9 Met.

2 Miller v. Adams, 16 Mass. R. 456. See Fisher v. Pond, 1 Hill (N. Y.), R. 672. 8 Mather v. Green, 17 Mass. R. 60. If the action against a sheriff is for an escape, it must be brought within six years from the time of the escape. Cockran v. Welby, 2 Mod. R. 222; and see French v. O'Neil, 2 Har. & M'Hen. (Md.), R. 401. [West v. Rice, 9 Met. (Mass.), 564. Where a sheriff collects money on an execution and returns it satisfied, but does not pay it over, the responsibility of his surety is fixed by the return, and the statute begins to run in his favor from that time. Governor v. Stonum, 11 Ala. 679. And where a sheriff has received money on a scire facias, the statute runs in his favor from the time when it was received. Thompson v. Central Bank, 9 Geo. 413. And see Edwards v. Ingraham, 31 Miss. (2 George), 272. But in Massachusetts it was held, in an action against the sheriff for money by him collected on an execution which was returned satisfied, that the statute did not begin to run against the execution creditor until a demand was made, as he had till then no cause of action. Weston v. Ames, 10 Met. (Mass.), 244. And where a sheriff has taken insufficient sureties in replevin, the statute begins to run from the time when the plaintiff fails to return the property replevied on demand after judgment therefor. Harriman v. Wilkins, 2 App. (Me.), 93. But where a sheriff, contrary to his instructions, neglects to attach sufficient property, as he might have done, a cause of action arises against him on the return of the writ, and the statute then begins to run, and not from the time

when, by a levy of the execution, the insufficiency of the property is ascertained. Betts v. Norris, 8 Shep. (Me.), 314; Garlin v. Strickland, 27 Me. (14 Shep.), 443. And where a sheriff was sued for default by his deputy, and judgment obtained against him, it was held, that the statute began to run against his remedy over against the adminis trator, on the rendition of the judgment. Atkins v. Scarborough, 9 Humph. (Tenn.), 517. Where, by statute, actions on constable's bonds are limited to two years after the expiration of the time for which the constable is appointed," it was held, that the resignation of the constable before the expiration of his term of service, did not affect the statute, so that it should begin to run from the resignation. State v. Ferguson, 9 Mis. 288. The statute of limitations of Pennsylvania begins to run upon the official recog nizance of the sheriff, from its date, and not from its approval by the governor. Wilson v. Com. 7 Watts & Serg. (Penn.), 181. But see contra, State v. Miller, ante, § 88, note. As to when the statute begins to run in cases of tort, see post, Ch. XXVII.]

CHAPTER XIV.

MUTUAL ACCOUNTS.

§ 143. It has been long well established, that mutual accounts, if they contain some items, or any one item, within six years, are not barred by the statute, though the rest of the items are beyond six years. This doctrine has been put upon two different grounds; the first being that such accounts come within the equity of the exception in respect to merchants' accounts, which will be the subject of the following chapter. In reference to this exception was made the decision in Cranch v. Kirkman, in which to an action for goods sold and delivered, a set-off was filed, of several items for goods sold at different times. Some of the items on both sides were within six years. It was contended for the plaintiff, that the greater part of the set-off was within the statute. Lord Kenyon thought that this came within the exception as to merchants' accounts, it being in the nature of a running and mutual account between the parties; and though the plaintiff's counsel contended, that the exception extended to no other description of persons but "merchants," yet he was overruled by his lordship.

§ 144. Upon the independent ground, the one chiefly and generally relied upon, Catlin v. Skoulding,2 is the leading authority. This ground is, that the items within six years are clearly an admission of an unsettled account, and equivalent to evidence of a new promise, which takes all the other items out of the statute. "I take it," says Lord Chief Justice Kenyon, in this case, "to have been clearly settled, as long as I have any memory 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

1 Cranch v. Kirkman, Peake, Ca. 164.

2 Catlin v. Skoulding, 6 T. R. 189.

may consider as an acknowledgment of its being an open account, is sufficient to take the case out of the statute." This case was cited as authority in Cogswell v. Dolliver,1 in one of the early reported cases in Massachusetts, in which Sewall, J., said, that it perhaps was not proper to consider the accounts disputed in the case before him as excepted from the statute of limitations, in the name of "mutual" accounts, between merchant and merchant. It was, however, proper, he said, the jury should take both accounts into consideration, there being on each side charges within six years; and this circumstance he regarded as evidence of a renewed promise, applicable to the whole account. And Sedgwick, J., in the same case, said, "If any of the articles were delivered within six years, preceding the commencement of the suit, they will draw after them the articles beyond six years, so as to exempt them from the operation of the statute." A like decision was made in Maine, in which case, however, the court remarked, that though the relaxation of the express provisions of the statute of limitations had been said, by eminent judges, to have been carried far enough, and might possibly, in some instances, have defeated the intention of the original law, yet, said the court, they were bound to administer it as qualified by judicial construction.2 But the doctrine, the court added, was not without reason, and they pronounced it the settled doctrine, both in England and in this country. Here is an intimation that the construction was not quite consistent with the positive terms of the statute, though in itself reasonable and just.3

§ 145. But the doctrine of Cranch v. Kirkman, and Catlin v. Skoulding, was for the first and only time directly repudiated in Blair v. Drew, in the Supreme Court of New Hampshire. There was not

1 Cogswell v. Dolliver, 2 Mass. R. 217.

2 Davis v. Smith, 4 Greenl. (Me.), R. 337.

3 [By the statute of limitations of Maine, in an action on a mutual and open account current, the right of action for the whole balance is deemed to have accrued at the time of the last item proved in the account. But if a party sleeps on a demand without entering it on his account until the period of limitation is elapsed, he cannot withdraw it from the operation of the statute by entering it afterwards on his account. In cases of unliquidated demands, the statute begins to run when the right of action accrues; but if the parties, after the right of action accrues, come to a settlement, and determine the sum due by mutual agreement, the statute begins to run from the time of the settlement. Ex parte Storer, 1 Davies (U. S.), 294. But as to this last point, see post, § 150.]

4 Blair v. Drew, 6 N. Hamp. R. 235.