soning has brought us is not novel as a general proposition. Lord Tenterden, in Lewis v. Morland (2 B. & Ald. 64), previous to the decision of Barker v. Green, used this language: Supposing the sheriff to be guilty of a breach of duty in letting the party out of custody, it does not thence follow that an action can be maintained against him for such breach of duty.' The opinion of Lord Denman, in the case of Randell v. Wheble, 10 A. & E. 719, contains this passage: 'We agree with the case of Brown v. Jarvis, that it is the duty of the sheriff to arrest the party on the first opportunity that he can; but we also agree with the court in that case that some actual damage must be shown in order to make the negligence of the sheriff in that respect a cause of action.' In a later case the same judge says: 'When the clear right of a party is invaded in consequence of another's breach of duty, he must be entitled to an action against that party for some amount.' Clifton ». Hooper, 6 A. & E. 468. Being of opinion that no right of the plaintiff was invaded when the officer departed from his duty in the service and return of the plaintiff's writ of attachment, that he suffered no legal injury until the consequences of that breach of duty were brought home to him by his failure to enforce his execution, that until then he had no right of action whatever, we decide that the statute of limitations took date from the time of the consequential injury, and not from the non-feasance or misfeasance of the officer; and advise that judgment be rendered for the plaintiffs. In this opinion Hinman, J., concurred." And see post. § 186, and notes.

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 administrator, 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 recognizance 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. The statute begins to run in favor of the surety on an administration bond from the settlement of the account. Rives v. Flynn, 47 Ala. 481. The statute does not begin to run against a claim of the vendee of land purchased at a sheriff's sale, which was void by reason of the irregularity of the sheriff's proceedings, against the sheriff for indemnity, until eviction. Friedlander v. Bell, 17 La. Ann. 42. 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,1 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 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

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

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

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 doctine, 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. was not only, the court in this case said, the earlier decisions, showing that the exception above referred to was then understood and applied in a confined sense, according to its language, but

1 Cogswell v. Dolliver, 2 Mass. 217.

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

There

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. H. 235.

there was no substantial reason why the statute should not be applied to bar items of account generally, which are more than six years old, as well as to bar promissory notes: there was no greater presumption that the latter have been paid after such lapse of time, than there was that the former had been adjusted; there was more danger of false and unfounded demands upon accounts than upon promissory notes, inasmuch as the latter contain the signature of the party to be charged; and it was more usual to take up and cancel promissory notes, when paid, than it was to take receipts upon accounts, when settled, or to preserve such receipts, when taken; and there was quite as much propriety in a statute of repose in relation to accounts, as there was upon any other branch of the subject-matter of the statute. The court, therefore, relying upon the views of Mr. Justice Story, in giving the opinion of the Supreme Court of the United States in Bell v. Morrison 1 (in which is presented in strong terms the danger of permitting an indeterminate and casual admission of the existence of an unsettled account to let in evidence aliunde to establish a debt), said they could not hold that one item in an account has of itself any force or effect to take other items, which would otherwise be barred, out of the statute. And for this result, the court also appeal to the principles of repeated decisions of the court;2 and they rely also upon their belief, that the greater part of the authorities have taken the position to the contrary, rather as matter of precedent than from any intrinsic merit of the principles of either case. But, however forcible might be the above reasoning, were the matter res integra, and whatever indirect support it may derive from the general doctrine laid down in the modern cases in respect

1 Bell v. Morrison, 1 Peters (U. S.), 360.

2 See Bennett v. Davis, 1 N. H. 19.

* Perhaps, say the court, in Blair v. Drew, the decisions in Cranch v. Kirkman, and Catlin v. Skoulding, were in some measure founded upon opinions which had been held in chancery. They refer to Scudemore v. White (1 Vern. 456), where it is laid down, that," the statute is no plea in bar to an open account," though it does not appear whether the parties were merchants, or upon what principle the decision was founded. It was also stated by the chancellor (19 Ves. 183) that Lord Talbot held "that an open mutual account was within the statute, unless there was some item of charge and debit within six years before the bill; overruling that case " of Scudemore v. White. Also, in the case, reference is made to an observation of Lord Hardwicke, "that the exception as to merchants' accounts is not confined to open accounts merely; for between common persons, as long as the account exists, the statute does not bar." Lord Hardwicke, however, seems to have held a different doctrine in relation to the exception (Wellford v. Liddell, 2 Ves Sen. 400).

1

to the effect of admissions and acknowledgments of debts of more than six years' standing, in ordinary cases, to which the court allude, the rule still prevails in this country and elsewhere, that mutual accounts, of however long standing, between persons who do not come within the description of "merchants," are not barred by the statute, if there be any items within six years.2 Mr. Justice Rogers, in giving the opinion of the court in Swearingen v. Harris, in the Supreme Court of Pennsylvania, says, that it was first so decided in Catlin v. Skoulding, and has been repeatedly recognized since, as the authorities abundantly show. It takes the case out of the statute, says he, and it is immaterial whether the parties are merchants or not, as it goes on the ground of implied promise.

146. In England, the law upon this subject, as expounded and laid down in Catlin v. Skoulding, appears to this day to have undergone no change, and in Ex parte Seaber, one of the judges (Sir J. Cross) said, that he had always been so accustomed to consider a running account as taking the case out of the statute, that it was like reverting to first principles to hear such a point debated. It appeared to him that no court of law or equity could possibly reject the evidence of such an account as the one before the court purported to be, "of dealings of the parties running

1 See Chap. on New Promises and Acknowledgments.

2 Coster v. Murray, 6 Johns. Ch. (N. Y.) 522; s. c. in Johns. (N. Y.) 576; Ramchander v. Hammond, 2 Ib. 200; Union Bank v. Knapp, Pick. (Mass.) 96; Tucker v. Ives, 6 Cow. (N. Y.) 193; Chamberlin v. Cuyler, 9 Wend. (N. Y.) 126; Edmonstone v. Thompson, 15 Ib. 559; Bass v. Bass, 6 Pick. (Mass.) 364; s. c. 8 Ib. 187; Ashley v. Hills, 6 Conn. 248; M'Clellan v. Croften, 6 Greenl. (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 Hay. (N. C.) 242; Davis v. Tiern, 2 How. (Miss.) 786; Fitch v. Hillary, 1 Hill (S. C.), 292; Taylor v. McDonald, 2 M'Cord (S. C.) 178; Kimball v. Brown, 7 Wend. (N. Y.) 322; Swearingen v. Harris, 1 Serg. & Watts (Penn.), 356; Thompson v. Hopper, 1 Watts & Serg. (Penn.) 467; Hay v. Kramer, 2 Serg. & Watts (Penn.), 137; Ingraham v. Sherard, 17 Serg. & Rawle (Penn.), 347; Beltzhoover v. Yewell, 11 Gill & Johns. (Md.) 212; Trumbull v. Stroecker, 4 M'Cord (S. C.), 215; Buntin v. Lagow, 1 Black. (Ind.) 573; Hibler v. Johnson, 3 Harr. (N. J.) 266; Knipe v. Knipe, 3 Black. (Ind.) 300; M'Naughton v. Norris, 1 Hay. (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, 2 Halst. (N. J.) 357. [Chambers v. Marks, 25 Penn. St. 296.]

3 Swearingen v. Harris, 1 Serg. & Watts (Penn.), 356; s. P. in Thompson v. Hopper, 1 Watts & Serg. (Penn.) 467, Kennedy, J., dissenting; and see Hay v. Kramer, 2 Serg. & Watts (Penn.), 137.

4 Ex parte Seaber, 1 Deacon (Bankruptcy), 551.