§ 1414. In the next place, the Statute of Limitations may be pleaded as a defence to an action upon a contract. At common law, no lapse of time creates a bar to an action, although it may raise a presumption of payment.1 The limitation of actions within a certain time is prescribed by the statute, 21 Jac. I. c. 16, called the Statute of Limitations.
§ 1415. The third section of this statute enacts "that 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), and all actions of debt founded upon any lending or contract, without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the cause of such action or suit, and not after."
§ 1416. This statute applies to the action of assumpsit,2 to all actions upon a written or parol contract, whether at law or in equity,3 and is re-enacted, with some variations of time, in the different States in the United States.
§ 1417. The exception in this statute with regard to accounts between merchant and merchant is a saving, as it has been said, of accounts, and not of liquidated liabilities; and applies only to such actions as respect accounts.1 It has been held from the earliest time not to be applicable to stated accounts.2 Whether it be applicable to accounts closed, or only to accounts current, has been much questioned; but the great weight of authority leaves little doubt that it only applies to accounts running within the space of six years.3 Such, at least, has been the prevalent opinion in England ever since the decision by Lord Hardwicke, in Welford v. Liddel.4 So, also, the exception applies only to cases of mutual accounts where there is a buying and selling of goods, and an account properly arising therefrom.5 The exception is confined, also, to accounts between merchants, or their factors and servants, in the strictest acceptation of the term,6
1 Cooper v. Turner, 2 Stark. 497; Dowthwaite v. Tibbut, 5 M. & S. 75; Sellen v. Norman, 4 C. & P. 81; Attleborough v. Middleborough, 10 Pick. 378. The lapse of twenty years affords a presumption of the payment of a specialty debt. Tidd's Pr. 9th ed. 18; Foulk v. Brown, 2 Watts, 214; 2 Phillips, Ev. (Cowen & Hill's ed.) 31 et seq. notes, part i.
2 Piggott v. Rush, 4 Ad. & El. 912; Williams v. Williams, 5 Ohio, 444; Haven v. Foster, 9 Pick. 112.
3 Battley v. Faulkner, 3 B. & Ald. 294; Linsell v. Bonsor, 2 Bing. N. C. 245; s. c. 2 Scott, 403; Spring v. Gray, 5 Mason, 524.
1 Webber v. Tivill, 2 Saund. 125; Farrington v. Lee, 1 Mod. 269; Spring v. Gray, 5 Mason, 525; 6 Pet. 151; Inglis v. Haigh, 8 M. & W. 769; Robinson v. Alexander, 8 Bligh (n. s.), 352; Cottam v. Partridge, 4 Scott, N. R. 819; s. c. 2 Man. & G. 843; 8. c. 4 Ib. 271.
2 Webber v. Tivill, 2 Saund. 125; Sandys v. Blodwell, W. Jones, 401; Martin v. Delbo, 1 Sid. 465; Farrington v. Lee, 1 Mod. 269; Toland v. Sprague, 12 Pet. 300; Spring v. Gray, 5 Mason, 525.
3 In this country it has been held to apply to closed accounts, in Man-deville v. Wilson, 5 Cranch, 15; in Bass v. Bass, 6 Pick. 362; in Davis v. Smith, 4 Greenl. 339; Spring v. Gray, 6 Pet. 151; Watson v. Lyle, 4 Leigh, 236; Coalter v. Coalter, 1 Rob. Va. 79; Patterson v. Brown, 6 Monroe, 10; Ogden v. Astor, 4 Sandf. 329; Dyott v. Letcher, 6 J. J. Marsh. 541. The same rule is held in England in Sherman v. Sherman, 2 Vera. 276; s. c. 1 Eq. Cas. Abr. 13; Sandys p. Blodwell, W. Jones, 401; Catlings. Skoulding, 6 T. R. 193; Robinson v. Alexander, 8 Bligh (N. s.), 352; Inglis v. Haigh, 8 M. & W. 769. But see, contra, in England, Welford v. Liddel, 2 Ves. 400; Martin v. Heathcote, 2 Eden, 169; Barber v. Barber, 18 Ves. 286; Foster v. Hodgson, 19 Ves. 180; Ault v. Goodrich, 4 Russ. 430. And in this country in Coster v. Murray, 5 Johns. Ch. 522; 8. c. 20 Johns. 576; Van Rhyn v. Vincent, 1 McCord, Ch. 310; Didier v. Davison, 2 Barb. Ch. 477.
4 2 Ves. 400; Coster v. Murray, 5 Johns. Ch. 522, and cases cited; Spring v. Gray, 5 Mason, 528; 6 Pet. 151; Union Bank v. Knapp, 3 Pick. 96; Cottam v. Partridge, 4 Man. & G. 271; 4 Scott, N. R. 819.
5 Webber v. Tivill, 2 Saund. 125; Coster v. Murray, 5 Johns. Ch. 522; 20 Johns. 576; Ingram v. Sherard, 17 Serg. & R. 317; Union Bank v. Knapp, 3 Pick. 113; Mandeville v. Wilson, 5 Cranch, 15; Spring v. Gray, 5 Mason, 528.
6 Blair v. Drew, 6 N. H. 235; Codman v. Rogers, 10 Pick. 118; Spring v. Gray, 5 Mason, 528; 6 Pet. 151; Farmers' Bank v. Planters' Bank, 10 and does not extend to shopkeepers,1 or to accounts between merchants as partners.2 And it has been held that such claims as bills of exchange,3 or contracts to receive half the profits of a voyage instead of freight,4 were not merchants' accounts within the exception. Nor are actions of indebitatus assumpsit within the exception, but only actions of account, and perhaps actions on the case for not accounting.6
Gill & Johns. 422; McCulloch v. Judd, 20 Ala. 703; Marseilles v. Kenton, 17 Penn. St. 238; Smith v. Dawson, 10 B. Monroe, 112; Bevan v. Cul-len, 7 Barr, 281; Thompson v. Fisher, 13 Penn. St. 310; Fox v. Fisk, 6 How. (Miss.) 328.
1 Farrington v. Lee, 1 Mod. 268. In this case Atkyns, J., said: "I think the makers of this statute had a greater regard to the persons of merchants than the causes of action between them. And the reason was because they are often out of the realm, and cannot always prosecute their actions in due time. I think also that no other sort of tradesmen but merchants are within the benefit of this exception, and that it does not extend to shopkeepers, they not being within the same mischief." See, also, Cottam v. Partridge, 4 Scott, N. R. 819; 8. c. 4 Man. & G. 271.
2 Bridges v. Mitchell, Bunb. 217; Patterson v. Brown, 6 Monroe, 10; Coalter v. Coalter, 1 Rob. Va. 79; Lansdale v. Brashear, 3 Monroe, 330; Manchester v. Mathewson, 3 R. I. 237 (1855). But see Ogden v. Astor, 4 Sandf. 327.