
    J. E. & W. Cunningham vs. Jas. S. Guignar and F. W. Green, Ex’ors of Samuel Green, dec’d.
    Mutual accounts, to prevent the bar of the statute of limitations, are where each party has an open, unsettled account against the other, arising at the same time, and existing together.
    A demand on the part of the defendant, arising subsequent to that of the plaintiff, cannot be regarded as a mutual account.
    BEFORE O’NEALL, J., AT COLUMBIA, SPRING TEEM, 1838.
    This was an action of assumpsit, in which the plaintiffs claimed to recover one thousand dollars for services as clerks of the testator in the Post Office, in Oolumbia, from the 16th of March, 1831, to the 16th of March, 1833; and for an account for articles sold and delivered, from the plaintiff’s book store, the greater part of which was prior to the 16th March, 1833 — a small part, amounting to about forty six dollars, was subsequent to that time. Dr. Green, the testator, died 19th March, 1837.
    The statute of limitations was pleaded, to which the plaintiffs replied a mutual account. The proof was, that in 1832 the plaintiffs being in want of money, received from the testator one hundred dollars, for which they gave him a due bill: this sum was credited on the plaintiff’s account brought into Court, but not on their books: the due bill was never taken up by the plaintiffs, nor was there any proof that the testator ever consented that it should be applied to his account. The latter part of 1834, and the begining of 1835, the plaintiffs had on hire a negro woman belonging to the testator; hex-hire at seven dollars per month they had also credited on the account brought into Court, but no credit was entered on the books, nor was there any proof that Dr. Green consented that this should be credited to his account. During the time, from 1832 to Dr. Green’s death in 1837, it was in evidence that he was the indorser of the plaintiffs in the bank in Columbia. The service of the plaintiffs in the Post Office, and the value thereof at five hundred dollars per year, and the plaintiff’s account for articles sold and delivered, were fully proved. It was also proved by a witness (Glass) that in a conversation with Dr. Green in 1834, be said to the witness, be thought he owed the Messrs. Cunninghams money.
    His Honor instructed the jury that there was no such mutual accounts between the parties as would prevent the bar of the statute against those demands of the plaintiffs which arose prior to the 16th of March, 1833. They found for the plaintiffs so much of their accounts as was subsequent to that time.
    The plaintiffs appeal, and moved for a new trial, on the following grounds:
    1st. Because his Honor should have submitted to the jury whether an account current between plaintiffs and defendants’ testator, had been proven by the evidence offered by the plaintiffs.
    3d. Because sufficient proof was made by the plaintiffs of a mutual account between plaintiffs and defendant’s testator, in his life time, to bring the case within the exceptions of the statute of limitations, so as to enable them to recover, and it should have been submitted to the jury.
    3d. Because the accounts between the parties were mutual and current accounts, and the claim of the plaintiffs was not barred by the statute of limitations.
    
      Black, plaintiff’s attorney.
    
      Gregg, contra.
   O’Neall, J.

In this case we are satisfied with the instructions of the judge below, to the jury.

The case of Fitch vs. Hilleary, 1 Hill, 292, and the cases to which is refers, are the authority relied on in support of the plaintiff’s motion. But it will be seen in that, and in all the cases referred to, that each party had' an open, unsettled account against the other, the articles in which might be fairly considered as payments pro tanto of the indebtedness on the other side. This is the only construction of the cases which can make them consistent with themselves — for they all go upon the ground that the account of a defendant is an acknowledgment of the account of a plaintiff, when they both arise and go on together. The case of Fitch vs. Hilleary assumes this view: but I confess on a review of that case, that the facts can hardly justify it: the ground upon which I am best satisfied with that case is, that the parties were to be considered as merchant and merchant, and therefore, that the case was within the exception to the statute of limitations.

In the case under consideration, there is nothing which can be regarded as a mutual account. The plaintiffs alone claim for an unsettled account: the defendants make no such claim. It is not pretended that the defendants’ testator left any account charged upon his books against the plaintiffs. This absence of claim on the part of the defendants negatives the notion of a mutual account.

It is true, beyond all question, that a note of hand cannot be regarded as the evidence of a mutual account. It has-directly the contrary effect: it furnishes a presumption that the accounts between the parties, to its date, have been settled. The plaintiff’s due bill to the testator cannot therefore be regarded as a mutual account between these parties. The hire of a slave in ’34-’35, was by the month; and as Hr. Green left no charges for the same, it cannot be supposed that he intended it as' a payment pro tanto of the plaintiffs’ previous services as clerks in the Post Office. Indeed, so far 'as this part of the claim is concerned, which is certainly independent of the book store'account, it is a bar; for it appears upon an examination of the authorities referred to, that a demand on the part of the defendants arising subsequent to that on the part of the plaintiffs, could not be regarded as a mutual account. To be so, both must exist together. Even as against their book store account, there is nothing to justify a conclusion that either party ever regarded the services of the slave as in satisfaction of,-or to be applied to it. The plaintiffs themselves on their books gave no such credit, and the defendant in no shape whatever gave any such indication. His conversation with Glass was before the slave’s hire was earned. His acknowledgment in ’34 to Glass, that “ he thought he owed the Messrs. Cunninghams money,” may be fairly referred to the book store account, and not to the plaintiffs’ services as clerks in the Post Office. But is plain that it was no evidence of a mutual account. If it was any thing, it was an evidence of an existing indebtedness, and, therefore, of a new promise: but under the replication of mutual accounts, it could not be looked to as evidence of a promise within four years before action brought, for the pleadings did not present that issue, and therefore it can have no effect.

The motion is dismissed.

Mr. Justice Gantt dissented.  