account is not mutual, and the items upon one side are mere cash payments upon the items on the other, the payment so made will only keep that portion of the account on foot which accrued within six years from the time such payment was made.1 8 SEC. 279. Merchants' Accounts.-There is an exception in favor of merchants' accounts, or accounts between merchants, &c., in some of the statutes, as in Texas, Kentucky, New Jersey, Rhode Island, Virginia, and West Virginia; and while an account, to come within the saving under this head, must be for merchandise or money growing out of the trade of merchandise between merchants,2 yet in other respects they resemble mutual accounts, and must be reciprocal demands; and in some English cases it was intimated that in such accounts mere time would never be a bar, while in others the difference between merchants' accounts and others was said to be that a continuation afterwards will prevent the statute from running against the former, but will be a bar to all articles before six years in other accounts. In Pennsylvania, a single transaction is held not to be within the exception of the statute, although it happens to be between merchants; and accounts when stated cease to be merchants' accounts; and accounts, the items of which are all on one side, are not merchants' accounts, because not mutual. The question whether accounts do concern the trade of merchandise between merchant and merchant is for the jury. 6 chard v. Superveile, 11 id. 522; Turnbull v. Stroecker, 4 McCord (S. C.), 214; Cotes v. Harris, Buller's N. P. 149. 1 Tucker v. Ives, 6 Cow. (N. Y.) 193; Bennett v. Davis, 1 N. H. 19; Buntin v. Lagow, 1 Blackf. (Ind.) 373; Miller v. Colwell, 5 N. J. L. 577; Kimball v. Brown, 7 Wend. (N. Y.) 322; McCullough v. Judd, 20 Ala. 703; Prewett v. Runyan, 12 Ind. 174; Adams v. Patterson, 35 Cal. 122. If an article of personal property is delivered to a creditor, with an understanding between him and the debtor that it shall be applied towards payment of the debt, the transaction does not constitute a mutual account, consisting of "reciprocal demands between the parties, within the meaning of sect. 17 of Nevada statute of limitations. Warren v. Sweeney, 4 Nev. 101. Items in an account, charged within six years, do not take items charged more than six years before suit out of the statute of limitations, unless there are mutual accounts between the parties. Bennett v. Davis, 1 N. H. 19; Kimball v. Brown, 7 Wend. (N. Y.) 322; Miller v. Colwell, 5 N. J. L. 577; Buntin v. Lagow, 1 Blackf. (Ind.) 373; Tucker v. Ives, 6 Cow. (N. Y.) 193. Items, in mutual accounts, within six years next before action brought, constitute of themselves no admission of an unsettled account extending beyond six years, nor any evidence of a promise to pay the balance, so as to take the case out of the statute of limitations. Blair v. Drew, 6 N. H. 235. 2 Bass v. Bass, 8 Pick. (Mass.) 187; Mandeville v. Wilson, 5 Cranch (U. S.), 15; Wilson v. Mandeville, 1 Cranch (U. S. C. C.), 433; Bond v. Jay, 7 Cranch (U. S.), 350. 3 Atwater v. Fowler, 1 Edw. (N. Y.) Ch. 417; Hussy v. Burgwyn, 6 Jones (N. C.) L. 385; Chew v. Baker, 4 Cranch (U. S. C. C.), 696. 4 Catlin v. Skoulding, ante. 5 Martin v. Heathcote, 2 Eden, 169. See also Dyatt v. Letcher, 6 J. J. Mar. (Ky.) 541. 6 Marselles v. Kenton, 17 Penn. St. 238. 7 Thompson v. Fisher, 13 Penn. St. 310; Beven v. Cullen, 7 id. 281. 8 Fox v. Fisk, 7 Miss. 328; Murray v. Coster, ante. 9 Bass v. Bass, ante. SEC. 280. Stated Accounts. As soon as an account ceases to be open, and the balance is ascertained and assented to, it becomes a stated account, and the balance is at once subject to the operation of the statute;1 and an account becomes a stated account when it is furnished to another, and he retains it for a long time without objection, as well as where the parties mutually agree upon a balance. Except in those States where the statute requires that a new promise or acknowledgment shall be in writing, the statute begins to run from the date of the account stated, as the stating of an account, accompanied by an express promise to pay it, or an acquiesence in the account as stated sufficiently long to rebut any presumption that there are objections thereto, raises an implied promise to pay the balance found, and changes the character of the account from a mutual to a stated account, so that assumpsit will lie for its recovery, even though the remedy originally might have been by debt or covenant. But in those States where the 1 Waller v. Lacey, 1 M. & G. 54; Williams v. Griffith, 2 Cr. M. & R. 45; Mills v. Fowkes, 7 Scott, 444; Clark v. Alexander, 8 id. 147; Cottam v. Partridge, 4 M. & G. 271. 2 Little v. Blunt, 9 Pick. (Mass.) 488. When parties make out what they believe to be a correct itemized account of their mutual dealings, and the balance is thereupon ascertained and paid, the items can no longer be considered unsettled, although one item was omitted by mistake. And if in such case, six years thereafter, on discovering the omission, an action declaring on the entire account is brought to recover the real balance, the statute of limitations will bar the recovery. Lancey v. Maine Central Railroad Co., 72 Me. 84. The leading English case upon the subject of mutual accounts between parties other than merchants is Catling v. Skoulding, 6 T. R. 189, in which it was held that if there be a mutual account of any sort between the parties for any item of which credit has been given within six years, that is evidence of acknowledgment of there being such an open account current between them and of a promise to pay the balance, so as to take the case out of the statute. LORD KENYON, C. J., said: "Here are mutual items of account; and I take it 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 unset tled account between them, the amount of which is to be afterwards 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 experience teaches us that if this rule be now overturned it will lead to infinite injustice." The Massachusetts court cited and followed that decision. Cogswell v. Dolliver, 2 Mass. 217. And the court in this State adopted the same doctrine, citing the above cases, and calling it a reasonable judicial construction of the statute. Davis v. Smith, Me. 337. See also McLellan v. Crofton, 6 id. 307; Therbold v. Stinson, 38 id. 149; Dyer v. Walker, 51 id. 104. The settlement changes the character of the account. The items become discharged by the payment of the agreed balance which resulted from setting off against each other the counter items. The discharge of the items is a consideration to sustain a promise to pay the balance. May v. King, 12 Mod. 538; s. c. 1 Ld. Raym. 680; Callander v. Howard, 10 C. B. 290. And if one of the items of the account was overlooked, the settled account, after six years, can afford no aid in taking it out of the statute of limitations. Union Bank v. Knapp, 3 Pick. (Mass.) 96. 3 Moravia v. Levy, 2 T. R. 483, note; Foster v. Alanson, 2 id. 479. It has been held that an account stated may be recovered although the original contract out of which the account grew was void by the statute requires that an acknowledgment or new promise shall be in writing, the stating of an account does not, either with an express parol promise or an implied promise to pay it, fix a new period from which the statute starts to run; and if the statute had begun to run upon the original account, or any of the items thereof, before the account was stated, it continues to do so, notwithstanding the stating of the account, unless there is a promise in writing to pay the account as stated. It is true the rule is generally that, when a party indebted upon an account receives and retains it beyond such time as is reasonable under the circumstances, and according to the usage of the business, for examining and returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated; 2 and a court of equity will not open it, except in cases where there have been mutual mistakes, omissions, fraud, or undue advantage, so that the balance stated is in truth vitiated, and in equity ought not to stand. But these rules relative to stated accounts are held not sufficient to enable a party to start the statute afresh, by stating his account, where the statute expressly ignores the force of a new promise to pay such balance implied from such statement, without objection, to raise a new promise to overcome the force of the statute of limitations, as such action by a party, if permitted, would place it within the power of parties to abrogate the provisions of the statute in reference to the effect of parol acknowledgments.* statute of frauds, Cocking v. Ward, 1 C. B. 858; Seago v. Dean, 3 C. & P. 170; as the action is upon the account stated, and not for the original indebtedness, Milward v. Ingram, 2 Mod. 43. sequa v. Fanning, id. 587; Atwater v. Fowler, 1 Edw. (N. Y.) Ch. 417; Phillips v. Belden, 2 id. 1; Lockwood v. Thorne, 11 N. Y. 170; Buren v. Hone, 2 Barb. (N.Y.) 586; Dows v. Durfee, 10 id. 213; Beers v. 1 Chase v. Stafford, 116 Mass. 529; Reynolds, 12 id. 288; Townley v. Denison, Sperry v. Moore, 42 Mich. 353. 2 Freeland v. Heron, 7 Cranch (U. S.), 147; Langdon v. Roane, 6 Ala. 518; Terry v. Sickles, 13 Cal. 427; White v. Hampton, 10 Iowa, 238; Mansell v. Payne, 18 La. Ann. 124; Wood v. Gault, 2 Md. Ch. 433; Brown v. Vandyke, 8 N. J. Eq. 795; Coopwood v. Bolton, 26 Miss. 212; Murray v. Toland, 3 Johns. (N. Y.) Ch. 569; Con 45 id. 490; Pratt v. Weyman, 1 McCord (S. C.) Ch. 156; Tharp v. Tharp, 15 Vt. 105. 3 Farnam v. Brooks, 9 Pick. (Mass.) 212; Roberts v. Totten, 13 Ark. 609; Goodwin v. United States Ins. Co., 24 Conn. 591. Reed v. Smith, 1 Idaho, 533; Weatherwax v. Cosumnes Co., 17 Cal. 344. CHAPTER XXIV. SET-OFF, RECOUPMENT, &c. SEC. 281. Set-off, when Statute begins to run against. Claims which go to reduce 282. Bringing of Action suspends SEC. 283. Executor may deduct Debt due Statute as to Defendant's Estate, when. SEC. 281. Set-off, when Statute begins to run against. The statute of limitations is not only applicable to a claim that is the subject-matter of the action against which it is pleaded, but it is also applicable to a set-off that is pleaded by a defendant; and where a demand upon which the statute has run is set up in bar of an action, or in diminution of the principal debt, the plaintiff may plead the statute thereto; or, if the set-off is given in evidence under a notice, the statute may be set up against it on the trial.1 The rule may be said to be that, if a defendant pleads a set-off, the plaintiff may reply the statute; but a set-off is available as a simultaneous cross-action would be, and, if it is to be barred at all, must be barred at the time of the commencement of the action. In other words, the bringing of an action by one party saves from the operation of the statute all such claims of the defendant against the plaintiff as are properly the subject of set-off, and which are in fact pleaded as a set-off in that action. Where there are cross 1 Hicks v. Hicks, 5 East, 16; Harwell v. Steele, 17 Ala. 372; Ruggles v. Keele, 3 Johns. (N. Y.) 261. In Trimyer v. Pollard, 5 Gratt. (Va.) 560, it was held that where the defendant does not plead a setoff, but files his account and gives notice of a set-off, as the plaintiff cannot reply the statute, he is at liberty to rely upon it at the trial. Hinkley v. Walters, 8 Watts (Penn.), 260. A debt which upon its face appears to be barred cannot be used as a set-off without evidence to take it out of the statute. Taylor v. Gould, 57 Penn. St. 152; Watkins v. Harwood, 2 G. & J. (Md.) 307; Shoenberger v. Adams, 4 Watts (Penn.), 430; Levering v. Rittenhouse, 4 Whart. (Penn.), 130. 2 In Walker v. Clements, 15 Q. B. 1046, the plaintiff, to a plea of set-off, replied that the cause of set-off "did not accrue within six years" of the plea; and the replication was held bad, because it did not allege that the cause of the set-off did 2 not accrue within six years before the commencement of the action. In an action to foreclose a mortgage, it was held in Iowa that the defendant may plead in setoff an account against a firm of which the plaintiff is a member, and that the statute of limitations is not a bar to the set-off. Allen v. Maddox, 40 Iowa, 124. In Caldwell v. Powell, 6 Baxter (Tenn.), 82, the defendant had an account against the decedent for board and lodging, apparently acquiesced in by her, and the decedent held a note against him. Upon her decease, the defendant executed a new note to her executor for the old note, without any deduction on account of his claim against her. In an application for an injunction to restrain the collection of the note, the plaintiff was enjoined to collect the note, except as to the excess over that portion of the account not barred by the statute of limitations. demands between the parties, which accrued at nearly the same time, both of which would be barred by the statute, and the plaintiff has saved the statute by suing out process, but the defendant has not, it has been held that, nevertheless, the defendant may set off such demands. Thus, in the case last cited, the action was predicated upon a bill of exchange due in 1784. The defendant pleaded thereto the general issue, the statute of limitations, and a set-off. The set-off consisted of bills of exchange and notes of the plaintiff which the defendant had taken up on his account, all of which were dated in 1784. The plaintiff objected to the set-off on two grounds: first, that, in order to entitle the defendant to go into evidence respecting the bills and notes, they ought to have been made the special object of a set-off; and, second, that although the plaintiff's demand accrued in 1784, yet he had kept it alive by having sued out process within six years from the date of its accrual, and had continued it; but that as the defendant had not done so, his demand against the plaintiff must be held to be barred, and therefore was not a proper ground of set-off. Both of these objections were overruled, LORD KENYON, as to the last one, remarking, "that, as the transactions between the plaintiff and the defendant were all of the same date, and as the bills seemed to have been given in the course of those transactions, and for their mutual accommodation, it would be the highest injustice to allow one to have an operation by law, and not the other, and that he would therefore hold the latter to be good as well as the former, and suffer them to be set off." It will be observed, however, that in this case the demands were similar, and had relation to the principal claim, and in order to give effect to the lastnamed rule this condition must always exist.2 SEC. 282. Bringing of Action suspends Statute as to Defendant's Claims which go to reduce Plaintiff's Claim.—The rule may be said to be that the bringing of an action by the plaintiff stops the running of the statute upon all demands due from him to the defendant, which, in that action, are the proper subject of a set-off, and which are in fact pleaded as required by statute. Not only does the bringing of an action stop the operation of the statute as to a proper matter of set-off, but it also seems that it revives a claim which is actually barred, but which is the proper subject of recoupment in the action, as damages growing out of the same transaction. Thus, in an action to recover the price of goods sold, unsoundness may be set up by way of defence, although an action to recover damages therefor is barred. So in Georgia, 1 Ord v. Ruspini, 2 Esp. 569. 2 Mann v. Palmer, 3 Abb. App. Dec. (N. Y.) 162. 8 Walker v. Clements, ante; Moore v. Lobbin, 26 Miss. 302; McElwig v. James, 36 Ohio St. 384. But see Gilmore v. Reed, 76 Penn. St. 462; King v. Coulter, 2 Grant's Cas. (Penn.) 77. The rule adopted in Pennsylvania is, that the stat- 5 Riddle v. Kreinbicht, 12 La. An. 297. This rule is predicated upon the |