
    Henry Bass, Executor &c. of Henry Bass, versus William Bass.
    
      April 2d
    
    The statute of limitations cannot be pleaded in bar to an action upon an open account “concerning the trade of merchandise, between merchant and merchant,” although none of the items come within the six years.
    Assumpsit. The counts were quantum valebant for goods sold, and indebitatus assumpsit for money laid out and expended, money lent, and money had and received. In each count was alleged a promise by the defendant to the testator on the 31st of December, 1804. A bill of particulars was filed by the plaintiff in the form of an account current, embracing charges from April 11, 1800, to November 26, 1804, and credits from July 2, 1802, to December 31, 1804.
    The defendant pleaded non assumpsit infra sex annos. The plaintiff replied, that at the time, &c. the testator and the defendant were merchants, the defendant residing in Bordeaux, in France, and the testator in Boston, and that the causes of action arose out of the mutual dealings and accounts of the defendant and the testator as merchants, and wholly concerned the trade of merchandise carried on between them. To this there was a demurrer.
    It was agreed, that on oyer of the letters testamentary, it would appear that the testator’s will was proved June 21, 1813, and that the same use might be made of this fact as if it had appeared on oyer.
    
      Shaw and Bartlett,
    in support of the demurrer. 1. Merchants’ accounts are within the statute of limitations, where there have been no dealings between the parties within six years. Barber v. Barber, 18 Ves. 286; Martin v. Heathcote, 2 Eden, 169; Demurest v. Wynkoop, 3 Johns. Ch. R. 136; Coster v. Murray, 5 Johns. Ch. R. 522; Cogswell v. Dolliver, 2 Mass. R. 217; 1 Hovenden’s Suppl. to Ves. jun. 628. [Union Bank v. Knapp, 3 Pick. 112.]
    2. The death of the testator must be considered as in effect stating his account. A statement of an account may be presumed. Topham v. Braddiek, 1 Taunt. 572; 2 Saund. 127, note 6.
    
      
      June 26th.
    
    
      Sullivan, for the plaintiff,
    relied on Mandeville v. Wilson, 5 Cranch, 15. He cited also 2 Saund. 127, note 6 ; Ramchander v. Hammond, 2 Johns R. 200. [Davis v. Smith, 4 Greenl. 339.]
   Per Curiam.

We have examined many cases and find great diversity of opinion in regard to the question before us. In several it has been held, that where there has been a cessation of mutual dealings between the parties for six years, the statute is a bar ; but that a charge within that period draws after it others of longer standing. In a case in New York (5 Johns. Ch. R. 522,) Chancellor Kent reviews the authorities, and comes to the conclusion, that merchants’ accounts are within the statute, where there is no item within six years. In 5 Cranch, 15, the court maintain the contrary doctrine. As the language of the statute is clear, we shall ground our decision upon it. The words are, all actions of account, and upon the case, other than such accounts as concern the trade of merchandise, between merchant and merchant, their factors or servants,” shall be commenced within the time limited. Such accounts then are not at all within the statute. This is the most natural construction, and indeed the only one which the words will allow.

Plea adjudged bad. 
      
       See Union Bank v. Knapp, 3 Pick. (2nd ed.) 113, note 1; Blair v. Drew, 6 N. Hampsh. R. 235. It is now enacted by the Revised Statutes, that in all actions of debt or assumpsit brought to recover tbe balance due upon a mutu al or open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account, c. 120, § 5.
     