
    Kimball and others vs. Brown.
    
      One item oí an account within six years before suit brought will not draw afilie it items beyond six years, so as to protect them from the operation of * the statute óf limitations, unless there have been mutual accounts and reciprocal demands between the parties.
    This was an action of assumpsit, tied at the Jefferson circuit in June, 1829, before the Hon. Nathan Williams, one of the circuit judges.
    The plaintiffs’ demand consisted of an account of eight items for 9 barrels of beer, sold to the defendant at various times between the 31st May, 1.819, and 10th December, 1822, of which last date the charge was for one barrel of beer, |6 ; the charge immediately preceding the last was in April, 1821. The account was duly proved. The suit was commenced in October term, 1828, and the defendant having pleaded the statute of limitations, insisted that as no mutual dealings had been shewn, the plaintiffs were entitled to recover only $6, the amount of the last charge. Under the direction of the judge, a verdict was takén for $71, the whole amount of the account subject to the opinion of this court.
    
      J. Steele, for plaintiff.
    
      W. D. Ford, for defendant. _
   By the Court,

Savage, Ch. J.

The only question is whether the plaintiff is entitled to recover for the whole account, or only for the last barrel of beer. I have found but few cases on this point, and will briefly state the substance of them. The case of Cotes v. Harris, which is found only in Bull. N. P. 149, was an action of assumpsit against executors; they pleaded non-assumpsit infra sex annos, to which the plaintiff replied a promise within six years before the commencement of the,suit. On the trial, it appeared that all the items of the plaintiffs’ account, except one, were above six years standing at the commencement of the suit. It was insisted for the plaintiff that the last item being within six years, and the account being an account current, unliquidated, should draw the former items out of the statute. But Denison, justice, held that the clause in the statute was applicable only where there were mutual accounts and recipr ocal demands; butif there were only a demand by A. against B. in the common way of business, as by a tradesman on his customer, that cannot be called merchants’ accounts, and decided that the statute was a bar to all the accounts above six years’ standing. The case of Catling and another v. Skoulding, 6 T. R. 189, was assumpsit for use and occupation; the plaintiff’s account was for nine years’ rent. The defendants were dealers in liquors and tallow chandlers, and had a running account against the plaintiff’s testator. Only the last half year’s arrear of rent, and one or two of the last articles of the defendant’s bill, were within six years before the commencement of the suit. On the whole account there was a balance in favor of the plaintiff of £171; but if no items were allowed but those within six years before suit brought, then the balance would be in favor of the defendants. A verdict was taken for the plaintiffs for the whole amount, with leave to the defendant to move to set it aside and enter a nonsuit. The court were of opinion that the plaintiffs were not barred; Lord Kenyon said, that where there is no item of account at all within six years before the action brought, the plaintiff will be precluded, unless he can bring his case within the exception in the statute ; but the present case was not one of that kind. It could not be doubted, he said, that an acknowledgment within six years will take the case out of the statute; and he considered it clearly settled, that every new item and credit in an account given by one party to the other was an admission of there being an unsettled account between them to be afterwards ascertained. He considered the decision in Cotes v. Harris sound, having originally taken a note of that case, and furnished it to Mr. Justice Buller for publication. The substance of these two cases is extracted by Gwillim, the learned editor of Bacon’s Abridgement, 4 Bacon, 478, thus: “But though the exception in the statute is so far limited to transactions merely between merchant and merchant, that where there is no item of account at all within six years before action brought, the plaintiff will be precluded, unless he can shew that the accounts were between merchant and merchant, &c.; yet a mutual account of any sort between á plaintiff and defendant, though neither of them of the description of merchant, for any item of which credit has been given within Six years, is evidence of a promise to pay the balance, and will take the ease out of the statute of limitations; but where all the items of an open unliquidated account áre on one side, the last item which happens to be within six years Shall not draw after it those that are of longer standing.” Such is also the result of the observations of Sergeant Williams. 2 íáaund. 127, ñ. 6, 7.

In our oWn court Very little has been adjudicated relating to this question. In Ramchander v. Hammond, 2 Johns. R. 200, it was decided that the English adjudications are applicable to our statute, the only difference being that one statute substitutes the word actions-, which concern the trade of merchandise, Sic. for the word accounts, concerning the trade of merchandise, &c. Which is the phraseology of the statute of James I.and it WaS held that these words were confined td actions on open or Current accounts, and hot to accounts stated and liquidated by bills or notes. Chancellor Kent has elaborately discussed the question notv under consideration,- and has collected and commented on nearly all the cases to .be enforced at law and in equity. 5 JohnS. Ch. R. 524. The question involved in this case he thinks settled, that to bring the case within the statute there must be mutual accounts, attd reciprocal demands. The chancellor examines the cases as to a branch of this question, not important in this case, viz. whether the statute applies to accounts between Merchants Where there has been no dealing within six years; that question he considers unsettled eVen at this day in England and here; it is only settled, he says,' that if part of an Open current account be within six years, that part draVvs after it the articles beyond six years, so as to protect them from the statute, the same rule prevails in Massachusetts. 2 Má"s§. R. 217. .

The counsel for the plaintiff seems to think that a recent decision of this court has established a new doctrine on this point, that when several items of an account on one side only, where there has been no mutual dealing, are within six years, then the whole is taken out of the statute. Tucker v. Ives, 6 Cowen, 195. The case of Tucker v. Ives is not stated at all by the reporter; no facts are given, except in the opinion of the court, but enough is there found to shew that it Was decided as a case of mutual accounts. In the plaintiff’s account there Was indeed but one item, but it was no less an account for that reason. So, in the case of Catling v. Skoulding, the plaintiff’s demand was for rent, use and occupation, but it did not therefore lose its character as an account. In Tucker v. Ives the plaintiff’s demand was for money received by the defendant for the plaintiff’s use, but it was an account within the meaning of the decisions; there had been mutual dealings, and in such case, had there been but one item of the account within six years, the whole account would have been taken out of the statute, according to the cases above referred to; but that case does not help the plaintiff in this cause. Here but one item of his account is within six years, and there has been no mutual dealing; the plaintiff, therefore, can recover only for the last item of his account. The case is subject to the opinion of the court. Judgment must be entered for the plaintiff for $6, unless he elect to have a new trial on payment of costs, to prove a promise within six years, if he can.  