3 Chievly v. Bond, 4 Mod. 105.
4 Spring v. Gray, 5 Mason, 505; 6 Pet. 151; Forbes v. Skelton, 8 Sim. 335.
5 Inglis v. Haigh, 8 M. & W. 769. This case was an action of indebitatus assumpsit in which the plaintiff declared for work and labor, money lent, money paid, and for interest, to which the Statute of Limitations was pleaded. Mr. Baron Parke said: "The plea of the Statute of Limitations is a complete bar, unless the plaintiff, by his replication, can take the case out of its operation. He attempts to do so by bringing it within the exception in the statute as to merchants' accounts. But we think that exception does not apply to an action of indebitatus assumpsit for the several items of which the account is composed, or for the general balance, but only to a proper action of account, or perhaps also an action on the case for not accounting.
"Although there is no reported case expressly governing the present, yet there are many coming very near it, and in which the dicta of very eminent judges fully warrant the view we take of the subject.
"Webber v. Tivill [2 Saund. 124], was an action of indebitatus assumpsit for goods sold and delivered, money had and received, and on an account stated. Plea, the Statute of Limitations. Replication that the money sought to be recovered became due and payable in trade between the sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done."
§ 1418. The seventh section of this statute enacts, "that if any person or persons, that is or shall be entitled to any plaintiff and defendant as merchants, and wholly concerned the trade of merchandise. The replication was held bad; and Morton, J., said that no action but an action of account was excepted. The reporter, it is true, adds that the other judges said nothing thereto, but gave judgment for the defendant without assigning their reasons. And certainly, in that case, as part of the demand was on an account stated, and even the residue did not appear to have accrued due in a course of mutual accounts, it was not necessary to go the full length of what was said by Morton, J.
"So in Martin v. Delboe [1 Mod. 70; 1 Vent. 89], Twisden, J., is reported to have said, ' I never knew but that the word accounts in the statute was taken only for actions of account.' That case, however, was an action of assumpsit on a promise to pay a certain sum out of the proceeds of goods sent to the defendant as a merchant beyond sea, and the court doubting whether it appeared on the declaration or not to be on an account stated, gave leave to discontinue; so that the question whether the statute applies to actions of account only was not decided. The same observation applies to the case of Farrington v. Lee [1 Mod. 269, and 2 Mod. 811].
"In none of these cases did the facts necessarily call for a decision, whether the exception did or did not at all apply to actions of assumpsit. Still the dicta of the judges in those cases are entitled to great weight, unopposed as they are by any conflicting authority whatever.
" But independently of authority, we are of opinion that the reasonable construction of the statute requires such a restriction as the dicta of the judges, in the cases we have referred to, clearly sanction. 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 and servants.' Now, as was said by Scroggs, J., in the case of Farrington v. Lee, if the legislature had meant to include in the exception other actions than actions of account, the language would probably have been ' other than such actions as concern the trade of merchandise,' and not 'other than such accounts.' Indeed, it is difficult to say that an action of indebitatus assumpsit for goods sold and delivered, or for money had and received, can, under any circumstances, be described as an action having any reference to accounts; it would have been still more difficult to say so at the time when the Statute of Limitations was passed.
"Where a merchant plaintiff brings an action for goods sold and delivered, money paid, or any of the other items which may constitute his demand against the merchant defendant with whom he has had mutual dealings, he is rather repudiating than enforcing accounts. Indeed, by the comparatively modern statutes of set-off, the defendant may now have the benefit of his counter demands; but that was not the case at the such actions of accounts, or actions of debts, shall be at the time of any such cause of action given, or accrued, fallen, or to come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, then such person or persons shall be at liberty to bring the same actions so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of date of the Statute of Limitations; and we must construe the statute now as it ought to have been construed immediately after it became law. At that time there was no proceeding at law by which mutual demands could be set against each other, except by action of account, and consequently there was no other action in any manner connected with accounts properly so called. It does not at all vary the case that the plaintiff only seeks to recover what he calls the balance due on the account. If that balance had been stated and agreed to, then all the authorities show that it is altogether out of the exception. If it has not been stated and agreed to, then it is only what the plaintiff chooses to call a balance, the accuracy of which the defendant had, at the time of passing the Statute of Limitations, no means of disputing in an action of assumpsit.
"Our view of the case is much assisted by considering that the exception clearly would not apply to an action of debt, brought for the very same demand; and it is difficult to believe that the legislature could have intended to preserve the right in one form of action, but to bar it in another." In Cottam v. Partridge, 4 Scott, N. R. 819, Chief Justice Tin-dal said: "In the late case of Inglis v. Haigh, 8 M. & W. 769, the Court of Exchequer seems to have decided that the exception as to merchants' accounts in the Statutes of Limitations applies only to an action of account or perhaps also to an action on the case for not accounting, but not to an action of indebitatus assumpsit. Without going quite so far as that (though I by no means intend to impeach the propriety of that decision), I am of opinion that the exception will not apply except where an action of account is maintainable; and the ground upon which I rest the determination of the present case is that the circumstances are not such for which an action of account would lie." See, also, Spring v. Gray, 5 Mason, 505, and 6 Pet. 151, in which Chief Justice Marshall says: "From the association of actions on the case, a remedy given by the law for almost every claim for money, and for the redress of every breach of contract not under seal, with actions of account, which lie only in a few special cases, it may reasonably be conceived that the legislature had in contemplation to accept those actions only for which account would lie. Be this as it may, the words certainly require that the action should be founded on an account." See, also, Toland v. Sprague, 12 Pet. 300; Didier v. Davison, 2 Barb. Ch. 477. And see Cottam v. Partridge, 4 Scott, N. R. 819; 4 Man. & G. 271.