
    Hutchinson and Dunham vs. John A. Pratt, Administrator of Timothy Cox.
    Windsor,
    
      February, 1829.
    If, in mutual accounts between two persons, there are items of both debt and credit made within six years preceding the death of one of them, the whole will be exempted from the operation of the statute of limitations, though the accounts may have commenced more than six years before.
    The same will be the case, though the accounts are kept by one of the partios only*
    This was an appeal from the allowance of commissioner* oa the estate of Timothy Cox, and came before the Court on the following statement of facts agreed to -by the parties r
    “The claim of the plaintiffs exhibited to said was a book account, for various articles from time to time taken up by said Cox, in his life-time, at the store of the plaintiffs, while partners in trade, in Woodstock, between the 13th of January, 1819, and the 4th day of June, A. D. 1824, amounting in the whole to the sum of $169 58: in which account of the plaintiffs there are various items of credit, amounting in all to the sum of $143 76, for the transportation of merchandise to and from Boston, from time to time, during the whole of the period, irom September, 1819, to 30th August, 1823; and no account was kept by said Cox, nor was there any evidence before the commissioners of the services of Cox, except the aforesaid credits of the plaintiffs. Now, if the Court shall be of opinion, from the facts above stated, that all of said account, back of six years previous to the death of said Cox, is barred by the statute of limitations, the Court is to render judgment in favor of said administrator for the sum of $5 80, and interest. If, that the several credits should be applied to the extinguishment of the oldest charges within six years next previous, then judgment to be rendered in favor of the plaintiffs for the sum of $22 54, and interest. But, should they adjudge, from the facts above stated, that it is such an open and running account between the parties, as that the statute of limitations is prevented from attaching to any part thereof, then judgment to be entered for the plaintiffs against said estate for the sum of $26 06, and interest.”
    
      The counsel for the plaintiffs cited 1 Sw. Dig. 307.— Cat- ' ling et al, ex’rs. of Tuthill vs. Skoulding et al, Term Rep. 189.-2 Stark. Ev. 898. — Norris’ Peake, 422. — Murray vs. Coster, 20 Johns. Rep. 594, 5.— Cogswell vs. Dolliver, 2 Mass. Rep. 217.
   The opinion of the Court was delivered by

Paddock, J.

It appears that Hutchinson & Dunham were merchants, transacting business in company in Woodstock, from the year IS19 to 1824; and between September, 1819, and 30th of August, 1823, employed the deceased, Timothy Cox, to do services for them ; that Hutchinson & Dunham, during that period, and up to June, 1824, kept an open account with him, wherein their charges amounted to $196,58, and had given him credit to nearly that amount. It would seem that Cox was either an illiterate man, not capable of keeping a book account, or had placed confidence in Hutchinson and Dunham to keep the entire accounts between them j who did, from time to time, give Cose credit for the transportation of loading to and fmm Boston, to th@ °f $143 76. And the question now presented for the consideration of the Courtis, whether, inasmuch as there are items both of charges and credits within six years next previous to the death of Cox, all that is back of that period shall be barred by the statute of limitations ; or, whether the books of Hutchinson & Dunham afford evidence of there being mutual existing and unsettled accounts between them, so that the entry of items of debt and credit within six years, shall draw after them all. which was previous.

Were the balance of the account in favor of Cox’s estate, there can be no doubt but that an entry made by Hutchinson & Dun-ham of either debt or credit within six years, would furnish evidence upon which the administrator could recover such balance; and the same might be said of Cox’s book, had he kept one; for there is as little doubt, that the book of either party furnishes better evidence against him, when the credits are more than the debt, than it would for him, if the balance stood in his favor.

The principle of law is as well settled perhaps as any, both in England and our neighboring States; that where books are kept by both parties, an entry of an item of debt or credit within six years, draws after it those of longer standing, and the statute is no bar to a recovery of the balance; for the statute does not inflict the loss of the debt as a punishment for the delay: on the contrary, where the accounts are of more than six years’ standing, and no new transaction has taken place between the parties, forming new items of account, the presumption is, that the accounts have been settled and paid off, though the balance is not struck. But that presumption of law may be removed, and is, where there is an acknowledgment that the accounts have not been settled, or a new promise to pay the balance, and the entry of a new item or credit, is an acknowledgment of an unsettled account between them. And where one party chooses to leave it for the other to keep the entire accounts between them, and the books shew debt or- credit, or both, as it does in this case, within six years, the evidence arising therefrom ought to be considered equally as strong as though each had kept his own, presenting the same items.

The cases, where the statute has been held a bar to all the charges which have been of more than six years’ standing, are those where all the items are. on one side, as in Cates vs. Harris, B. N. P. 149; in which a recovery was had for the last item Only, the statute barring the others.

There must be judgment for Hutchinson & Dmkmt, the appellants, to recover .against the administrator, $26 06, the sum agreed upon by the parties.

E. Hutchinson, for plaintiffs.

Ch. Marsh, for the administrator.  