burden of establishing the fraud, so as to bring his case within the statute.1 So, too, it must relate to the cause of action, and does not apply to the concealment of property, so that it cannot be reached upon execution. Except where made so by statute, mere ignorance of one's rights does not prevent the operation of the statute.

CHAPTER XXIII.

MUTUAL ACCOUNTS, &C.

SEC. 277. Statutory Provisions as to. SEC. 279.
278. What are Mutual Accounts.

Catlingv.

Merchants' Accounts. 280. Stated Accounts.

SEC. 277. Statutory Provisions as to. - Formerly the doctrine relative to mutual accounts was predicated upon the rule advanced in inv. Skoulding,' that the statute only attached from the date of the last item on either side of the account. This rule was generally adopted in this country.2 In most of the States this rule has now been adopted by positive enactment. Thus, in Maine, the statute provides that "in all actions of debt or assumpsit to recover the balance due, in cases where there have been mutual dealings between the parties, the items of which are inserted, whether kept or proved by one party or both, the cause of action shall be deemed to accrue at the time of the last item proved in such account;" and a similar provision exists in the statutes of Massachusetts, New York, Alabama, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Mississippi, Missouri, Minnesota, North Carolina, South Carolina, Oregon, California, Michigan, Wisconsin, Nevada, Tennessee, Arizona, Dakota, Idaho, Montana, New Mexico,

1 Catlin v. Skoulding, 6 T. R. 189. See also Cranch v. Kirkman, Peake's Cas. 164.

2 Hutchinson v. Pratt, 2 Vt. 149; Wood v. Barney, 2 id. 369; Davis v. Smith, 4 Me. 337; Penn v. Weston, 20 Mo. 13; Cogswell v. Dolliver, 2 Mass. 217; Belles v. Belles, 12 N. J. L. 339; Pridgen v. Hill, 12 Tex. 374; Swearingen v. Harris, 1 W. & S. (Penn.) 356; Thomas v. Hooper, id. 467; Chambers v. Mooks, 25 Penn. St. 256; Sickles v. Mather, 20 Wend. (N. Y.) 72; Coster v. Murray, 6 Johns. (N. Y.), Ch. 522; Ramchander v. Hammond, 2 id. 200; Union Bank v. Knapp, 3 Pick. (Mass.) 96; Tucker v. Ives, 6 Cow. (N. Y.) 193; Chamberlin v. Cuyler, 9 Wend. (N. Y.) 126; Edmonstone v. Thompson, 15 id. 559; Bass v. Bass, 6 Pick. (Mass.) 364; Ashley v. Hills, 6 Conn. 248; M'Clellan v. Croften, 6 Me. 308; App v. Driesbach, 2 Rawle (Penn.), 287; Brady v. Calhoun, 1 Penn. 140; Moore v. Munro, 4 Rand. (Va.) 488; Newsome v. Persons, 2 Hayw.

(N. C.) 242; Davis v. Tiern, 2 How. (Miss.) 786; Fitch v. Hillary, 1 Hill (S. C.), 292; Taylor v. McDonald, 2 McCord (S. C.), 178; Kimball v. Brown, 7 Wend. (N. Y.) 322; Swearingen v. Harris, 1 S. & W. (Penn.) 356; Thompson v. Hopper, 1 W. & S. (Penn.) 467; Hay v. Kramer, 2 S. & W. (Penn.) 137; Ingraham v. Sherard, 17 S. & R. (Penn.) 347; Beltzhoover v. Yewell, 11 G. & J. (Md.) 212; Trumbull v. Stroecker, 4 McCord (S. C.), 215; Buntin v. Lagow, 1 Blackf. (Ind.) 573; Hibler v. Johnson, 18 N. J. L. 266; Knipe v. Knipe, 3 Blackf. (Ind.) 300; M'Naughton v. Norris, 1 Hayw. (N. C.) 216; Sumter v. Morse, 2 Hill (S. C.), 92; Mandeville v. Wilson, 5 Cranch (U. S.), 15; Toland v. Spring, 12 Peters (U. S.), 300; Smith v. Ruecaster, 7 N. J. L. 357. But in New Hampshire this doctrine is denied. Blair

v. Drew, 6 N. H. 235.

8 Appendix, Maine, § 84.

and Utah. In Rhode Island, New Jersey, Kentucky, Maryland, Virginia, West Virginia, and Pennsylvania, the provision is substantially the same as in the statute of James. In Virginia and West Virginia an action must be brought upon any store account for goods charged therein within two years. In Texas, in all accounts, except between merchant and merchant, their factors and agents, the respective time or date of the delivery of each article charged must be specifically stated, and the statute runs against each item from the date of delivery, unless otherwise agreed. In Louisiana, the accounts of retailers of provisions and liquors, and the accounts of all merchants, whether selling by retail or wholesale, are barred within three years from the time when the articles charged shall have been furnished, but upon open accounts the statute does not run until five years.

3

SEC. 278. What are Mutual Accounts. Mutual accounts are made up of matters of set-off, or, in other words, are accounts between parties who have a mutual and alternate course of dealings,1 under an implied agreement that one account may and shall be offset against the other, pro tanto. In the language of EARL, J.,2 in an able opinion, "The very theory upon which this statute is based is that the credits are mutual, and that the account is permitted to run with the view of ultimate adjustment by a settlement and payment of the balance; and this theory is recognized in the statute, as it mentions an action brought to recover a balance due upon an account." The action, however, need not be for the balance due upon the account. It is sufficient if such is its purpose and legal effect. "In ordinary cases," said REDFIELD, J.," of mutual dealings no obligation is created in regard to each particular item, but only for the balance; and it is the constantly varying balance which is the debt." If the account is all upon one side, and the statute has run upon some of the items, the account is not mutual, and only those upon which the statute has not run can be recovered; and this is so, although entries of payments are made upon the account, the rule being that mere technical payments of money on account, made by one to another, for which credit is given, do not make the accounts mutual so as to prevent the statutory bar from attaching. In such a case, the accounts are said to lack the essential attributes to the creation of mutual accounts, the express or implied agreement to set off the one

5

1 Robarts v. Robarts, 1 M. & P. 487; Ingraham v. Shepard, 17 S. & R. (Penn.) 347; Fox v. Smith, 7 Miss. 346.

2 Green v. Disbrow, 79 N. Y. 1, 35

Am. Rep. 496.

216.

7

6

James, 11 M. & W. 542; Smith v. Forty, 4 C. & P. 126.

7 Webster v. Brynes, 32 Md. 86; Adams v. Carroll, 85 Penn. St. 209; Prenatt v. Bunyan, 12 Ind. 174; Dyer v. Walker,

3 Penniman v. Rotch, 3 Met. (Mass.) 51 Me. 104; Weatherwax v. Cosumnes, 17

4 Abbott v. Keith, 11 Vt. 525.

5 See also Hodges v. Manley, 25 Vt. 210.

6 Robarts v. Robarts, ante; Ashby v.

Cal. 344; Adams v. Patterson, 35 Cal. 122; Peek v. N. Y., &c. S. & S. Co., 5 Bosw. (N. Y.) 226; Frayler v. Sonora, &c. Co., 17 Cal. 594.

against the other, and, instead, that the payment instantly goes in reduction of the debt, pro tanto. In a Massachusetts case,1 a shopkeeper's account containing charges and credits more than six years before action brought, and only two small charges within six years, is not an account current or mutual account, so that the last two items should draw the others out of the statute. Such accounts, instead of being mutual, are said to be one-sided, and lacking in that essential attribute of mutu ality. In Pennsylvania, it is held that an account is not rendered mutual by a payment, either of goods or money, and in the case first cited the reason for this is stated to be that a mutual account is when each has a demand or right of action against the other; "as, for example," says ROGERS, J., "where A. and B. dealing together, A. sells B. an article of furniture or any other commodity, and afterwards B. sells A. property of the same or a different description, this constitutes a reciprocal demand, because A. and B. have a demand or right of action against each other;" and that this is not so when the sale is by one to the other, whether it is to be paid for in cash or in kind, and that the manner of payment can make no difference. But the doctrine of these cases is questioned by the court in a New York case, and it is held that where there are charges upon both sides of the account for property other than money, although the account is kept by one of the parties only, and consists of debits on one side, and credits for merchandise upon the other, the account is a mutual account, within the meaning of the statute. In that case it appeared that the account commenced in November, 1855, and continued until Nov. 11, 1863, and that during that time the defendant caused to be delivered to the plaintiff, by his son, certain small quantities of butter and eggs at different times, to be credited upon the account; and the balance of the account as adjusted by the referee was $745.55. The last item of credit was for eggs delivered in August, 1862. In an action to recover this balance, the defendant set up the statute, and insisted that as the articles delivered by him to the plaintiff were delivered to and accepted by the plaintiff as payments upon the account, there was no case of reciprocal demands within the meaning of the statute. But the court held otherwise, EARL, J., saying: "There was sufficient proof to justify the referee in finding that the butter and eggs belonged to the defendant, and were delivered at his request. The evidence is that he

1 Gold v. Whitcomb, 14 Pick. (Mass.) 188. But in this case it appeared that the defendant kept no account with the plaintiff, and how far this circumstance affected the decision, the case does not show.

"Ingraham v. Sherard, 17 S. & R. (Penn.) 347; Lowber v. Smith, 7 Penn. St. 381.

* Hay v. Kramer, 2 W. & S. (Penn.)

137; Coster v. Murray, 5 Johns. (N. Y.) Ch. 522; Edmonstone v. Thomas, 15 Wend. (N. Y.) 554; Belles v. Belles, 12 N. J. L 339; Gulick v. Turnpike Co., 14 id. 545. 4 Lowber v. Smith, 7 Penn. St. 381; Adams v. Carroll, 85 id. 209.

5 See also Adams v. Carroll, ante, where the same distinction is made.

• Green v. Disbrow, 79 N. Y. 1.

2

No

directed his son and his wife to take the butter and eggs to the plaintiff, and have them applied upon the account; and they took them to the plaintiff, and he received them, and without any particular direction or agreement with him, he at once credited them in his account. other account was kept of them except that kept by him. That this is a mutual, open, and current account of reciprocal demands, within the meaning of the statute, I entertain no doubt." And this view is adopted in California;1 and in Georgia and Michigan' it has been carried still further, and credits for labor upon one side, and payments of money upon the other, have been held sufficient to render the accounts mutual. Thus, where a running account for a series of years is kept between an employer and his employé, for work on the one hand and payments upon the other, the statute does not run thereon so long as the last item of such account is within the statute. But if there has at any time been an accounting and settlement between the parties, monthly or otherwise, whereby the account is sifted and stated, or liquidated either by cash or note for the balance due, or the carrying forward of such balance to the next month's account, such settlement will become a new departure, and the items within the statute will draw without its operation only that part of the account made since such settlement, with such balance, if any, brought forward. In England, it is also held that the balance of an account may be carried forward and become an item in a new account. But in Massachusetts a contrary doctrine was held. Thus, where the defendant was a depositor in the plaintiff bank, and his deposits were erroneously footed at $1,000 too much, and the balance so erroneously ascertained was struck and carried to his credit on the bank-books, the checks being annulled. The same error was repeated monthly for more than six years, during which the dealings of the parties continued, when to an action by the bank to recover back the amount the defendant pleaded the statute. It was held that as to the $1,000, the account was not an open, mutual, and running account, but had become a settled and stated account each month, although the balance due the defendant was not then paid in cash, but was carried forward as the first item in the subsequent month's account. The advantage of bringing an account under the head of mutual accounts is, that an item upon either side within the statutory period draws after it all other items beyond that period; whereas, if the

5

6

to make the account mutual, it was not necessary that mutual services should be rendered.

5 Farrington v. Lee, 1 Mod. 270.

6 Union Bank v. Knapp, 3 Pick. (Mass.) 96. See also Belchertown v. Bridgman, 118 Mass. 486.

7 Hallock v. Losser, 1 Sandf. (N. Y.) 220; Judd v. Sampson, 13 Tex. 19; Gui