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munity of interest among the debtors, and the presumption that no one of them would make an admission against his own interest, it results, that, where the party making the payment is no longer responsible, as, for example, where it is received under a dividend in bankruptcy, it raises no presumption against the others." § 445. Mutual accounts.

The existence of mutual accounts between the parties, if there are items on both sides within the period of limitation, is such evidence of a mutual acknowledgment of indebtment as to take the case out of the operation of the statute.? And if the defendant's account contains an item within that period, this has been held sufficient to save the account of the plaintiff ; 8 but if the items in the defendant's account are all of an earlier date, though some of those in the plaintiff's account may be within the statute period, the statute will bar all the claim, except the last-mentioned items.4 (a) If the account has been stated between the parties, the statute period commences

1 Brandram v. Wharton, 1 B. & Ald. 463 ; ante, vol. i. s 174, n. (3). And see Bibb v. Peyton, 11 S. & M. 275.

2 Cogswell v. Dolliver, 2 Mass. 217; Bull. N. P. 149 ; Chamberlain v. Cuyler, 9 Wend. 126 ; Tucker v. Ives, 6 Cowen, 193; Fitch v. Hilleary, 1 Hill (S. C.), 292. See also Rev. Stat. Massachusetts, c. 120, $ 5. A similar effect has been attributed to continuity of service of a domestic, until a short time previous to the suit. Viens v. Brickle, i Martin, 611. If the items are all on one side, those within six years will not save the others from the operation of the statute. Hadlock v. Losee, 1 Sandf. 220.

3 Davis v. Smith, 4 Greenl. 337 ; Sickles v. Mather, 20 Wend. 72.

4 Gold v. Whitcomb, 14 Pick. 188 ; Bull. N. P. 149. In England, since Lord Teuterden's Act (9 Geo. IV. c. 14), the existence of items within six years, in an open account, will not operate to take the previous portion of the account out of the statute of limitations. Cottam v. Partridge, 4 M. & G. 271. 156. Or if it appears to have been made that there was a mutual and open account by the direction of the other joint promisor. current, and proving an item on either Clark v. Burn, 86 Pa. St. 502 ; Haight v. side, within six years. Thus, where the Avery, 16 Hun (N. Y.), 252.

plaintiff opened an account with the de. (a) The Massachusetts statute pro- fendant in 1830, and continued to make vides that, in actions brought "to recover charges until 1833, and brought an action the balance due upon a mutual and open on his account in 1838, and proved on the account current, the cause of action shall trial that the defendant delivered to him be deemed to have accrued at the time of an article on account in 1830, it was held the last item proved in such account." that there was a mutual and open account This does not apply exclusively to such ac current, and that no part of the plaintiff's tions as are brought on accounts in which charges were barred by the statute of lim. debits and credits are stated and a balance itations. Penniman v. Rotch, 3 Met. struck, but extends also to cases in which (Mass.) 216. the plaintiff seeks to recover the balance A statute in New York (N. Y. Code, due to him, though he declares only on the 386), makes a similar provision for acdebit side of the account. And in the lat- counts in which there have been “reciproter case, if the defendant does not file an cal demands." This expression is equivalent account in set-off, nor prove items on his to “mutual accounts” (Green v. Disbrow, side of the account by way of payment, 79 N. Y. 1), and it is so held in Kansas but relies on the statute of limitations, the (Waffle v. Short, 25 Kan. 503). plaintiff may avoid the statute by showing

at the time of stating it;1 but a mere cessation of dealings, or any act of the creditor alone, or even the death of one of the parties, is not, in effect, a statement of the account?

§ 446. Acknowledgment does not revive tort. It may here be further observed, that, where the cause of action arises ex delicto, as in trespass and trover; or is given by positive statute, irrespective of any promise or neglect of duty by the party, as in the case of actions against executors and administrators upon the contracts of their testators or intestates ; if the action is once barred by lapse of time, no admission or acknowledgment, however unequivocal and positive, will take it out of the operation of the statute.3

§ 447. Merchants' accounts. The statute of limitations of 21 Jac. I. c. 16, which has been copied nearly verbatim, in its principal features, in most of the United States, (a) contains an exception of “such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.” To bring a case within this exception, it must be alleged in the replication, and shown by proof, to conform to the statute in each of those particulars; every part of the exception being equally material. The exception is not of actions, nor of special contracts, nor of any other transactions between merchants, but is restricted to that which is properly matter of account, or consists of debits and credits properly arising in account. It has therefore been held, that such claims as bills of exchange, or a contract to receive half the profits of a voyage in lieu of freight, were not merchants'

1 Farrington v. Lee, 1 Mod. 269 ; 2 Mod. 311 ; Cranch v. Kirkman, Peake's Cas. 121, and n. (1), by Day ; Union Bank v. Knapp, 3 Pick. 96.

2 Trueman v. Hurst, 1 T. R. 40; Mandeville v. Wilson, 5 Cranch, 15; Bass v. Bass, 5 Pick. 187 ; McLellan v. Crofton, 5 Greenl. 307.

3 Hurst v. Parker, 1 B. & Ald. 92 ; 2 Chitty, 249 ; Oothout v. Thompson, 20 Johns. 277 ; Brown v. Anderson, 13 Mass. 201 ; Thompson v. Brown, 16 Mass. 172 ; Dawes 0. Shed, 15 Mass. 6 ; Ex parte Allen, Id. 58 ; Parkman v. Osgood, 3 Greenl. 17.

4 Spring v. Gray, 5 Mason, 505, per Story, J.; s. c. 6 Peters, 155 ; Cottam v. Par. tridge, 4 M. & G. 271 ; 4 Scott, N. R. 819. A mere open account, without any agreement that the goods delivered on one side shall go in payment of those delivered on the other, is not therefore an account of merchandise, between merchants. Ibid. It has recently been held in England, that the exception as to merchants' accounts does not apply to an action of indebitatus assumpsit, but only to the action of account, or perhaps to an action on the case for not accounting. Inglis v. Haigh, 5 Jur. 704 ; 8 M. & W. 769. 6 Chievly v. Bond, 4 Mod. 105 : Carth. 226 ; 8. C, 1 Show. 341.

Spring v. Gray, 5 Mason, 505 ; s. C. 6 Peters, 155.

6

(a) This statute was repealed in Eng- on Limitations (6th ed.), § 152, and Ap. land, 19 & 20 Vict. c. 97, § 9, and it is re- pendix, passim. tained by but few of the States. Angell

accounts, within this exception. And as the exception was intended to be carved out of cases for which an action of account lies, and as this action does not lie where an account has already been stated between the parties, it has been held, that a stated account is not within the exception in the statute.1

But an account closed by a mere cessation of dealings, we have just seen, is not deemed an account stated. Whether any but current accounts, that is, those which contain items within the statute period, are within this exception, is a point upon which the authorities, both in England and America, are not uniform. On the one hand, it is maintained upon the language of the statute, that, if the accounts come within its terms, it is sufficient to save them, though there have been no dealings within the six years.2 On the other hand, it has been held, that where all accounts have ceased for more than six years, the statute is a bar; and that the exception applies only to accounts running within the six years ; in which last case the whole account is saved as to the antecedent items. The account, also, to be within the exception, must be such as concerns the trade of merchandise ; that is, such as concerns traffic in merchandise, where there is a buying and selling of goods, and an account properly arising therefrom. The existence of mutual debits and credits, there being no agreement that the articles delivered on one side shall go in payment for those delivered on the other, has been held insufficient to constitute the accounts intended in this exception. And it is necessary, moreover, that the parties to the account be merchants, or persons who traffic in merchandise, their factor or servants.

$ 448. Fraud and concealment. The bar of this statute may also be avoided by proof of fraud in the defendant, committed under such circumstances as to conceal from the plaintiff all knowledge

1 Webber v. Tivill, 2 Saund. 124, 127, notes (6), (7), by Williams; 5 Mason, 526, 527.

2 Mandeville v. Wilson, 5 Cranch, 15; Bass v. Bass, 6 Pick. 362, confirmed in 8 Pick. 187, 192 ; McLellan v. Crofton, 6 Greenl. 307. Such is now the rule in Eng. land. See Robinson 2. Alexander, 8 Bligh, N. S. 352 ; Inglis v. Haigh, 5 Jur. 704 ; C. 8 M. & W. 769.

3 Wilford v. Liddel, 2 Ves. 400 ; Coster v. Murray, 5 Johns. Ch. 522 ; Spring v. Gray, 5 Mason, 505, 528 ; Peters, 155. See Angell on Limitations, c. 14 ; Ramchander v. Hammond, 2 Johns. 200.

4 Spring v. Gray, 5 Mason, 529, per Story, J.; 6 Peters, 155. And see Sturt v. Mellish, 2 Atk. 612 ; Bridges v. Mitchell, Bunb. 217; Gilb. Eq. 224.

5 Cottam v. Partridge, 4 M. & G. 271 ; s. C. 4 Scott, N. R. 819.

6 5 Mason, 530, per Story, J., and authorities there cited ; 5 Com. Dig. 52, tit. Merchant, A.; 2 Salk. 445; Hancock v. Cook, 18 Pick. 32; Wilkinson on Limita. tions, pp. 21-30 ; Angell on Limitations, c. 15.

of the fraud, and thus prevent him from asserting his right, until a period beyond the time limited by the statute. But such fraudulent concealment can be shown only under a proper replication of the fact. And it must be alleged and proved, not only that the plaintiff did not know of the existence of the cause of action, but that the defendant had practised fraud in order to prevent the plaintiff from obtaining that knowledge at an earlier period.1 (a)

1 Angell on Limitations, c. 18; Bree v. Holbeck, 2 Doug. 654, confirmed in Brown v. Howard, 2 B. & B. 73, 75 ; s. C. 4 J. B. Moore, 508 ; and in Clark v. Hougham, 2 B. & C. 149, 153 ; Short v. McCarthy, 3 B. & Ald. 626 ; Granger v. George, 5 B. & C. 149. And see Macdonald v. Macdonald, 1 Bligh, 315. See also Sherwood v. Sutton, 5 Mason, 143, where all the authorities are reviewed by Story, J.; First Mass. Turup. Co. v. Field, 3 Mass. 201 ; Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Pick. 74; Farnham v. Brooks, 9 Pick. 212 ; Jones v. Conoway, 4 Yeates, 109 ; Bishop v. Little, 3 Greenl. 405; Walley v. Walley, 3 Bligh, 12. In New York, fraudulent con. cealment of the cause of action will not prevent the operation of the statute. Troup v. Smith, 20 Johns. 40; Allen v. Mille, 17 Wend. 202.

(a) See ante, $ 399, note a. See also 39 Me. 404; Douglass v. Elkins, 8 Foster Moore v. Greene, 2 Curtis C. C. 202; Carr (N. H.), 26; Livermore v. Johnson, 27 v. Hilton, 1 Id. 390; Rouse v. Southard, Miss. 284.

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MALICIOUS PROSECUTION.

§ 449. Grounds of action. To maintain an action for this injury, the plaintiff must prove, (1) that he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end; (2) that it was instituted maliciously, and without probable cause; (3) that he has thereby sustained damage. It is not necessary that the whole proceedings be utterly groundless; for if groundless charges are maliciously and without probable cause coupled with others which are well founded, they are not on that account the less injurious, and therefore constitute a valid cause of action. Nor is the form of the prosecution material; the gravamen being, that the plaintiff has improperly been made the subject of legal process to his damage. (a) If, therefore, a commission of bankruptcy has been sued out against him, though it was afterwards superseded ;2 (6) or his house has been searched under a warrant for smuggled or stolen goods ;3 or, if a commission of lunacy has been taken out against him; 4 or, if special damage has resulted from a false claim of goods; 5 or, if goods have been extorted from him by duress of imprisonment, or abuse of legal process; 6 or, if he has been arrested and held to bail for a debt not due, or for more than was due, and it was done maliciously and without probable cause, - he may have this remedy for the injury. The action, moreover, is to be brought against the party who actually caused the injury, and not against one who was only a nominal party. And, therefore, if one commence a suit in the name of another, without his authority, and attach

1 Reed v. Taylor, 4 Taunt. 516 ; Wood v. Buckley, 4 Co. 14 ; Pierce v. Thompson, 6 Pick. 193 ; Stone v. Crocker, 24 Pick. 81.

Brown v. Chapman, 3 Burr, 1418 ; Chapman v. Pickersgill, 2 Wils. 145. 3 Boot v. Cooper, 1 T. R. 535.

* Turner v. Turner, Gow, 20. 6 Green v. Button, 2 C. M. & R. 707 ; 1 Tyr. & Gr. 118.

6 Grainger v. Hill, 4 Bing. N. C. 212; 3 Scott, 561 ; Plummer v. Dennett, 6 Greenl. 421.

7 Savage v. Brewer, 15 Pick, 453 ; Wentworth_v. Bullen, 9 B. & C. 840; Ray v. Law, 1 Peters C. C. 210 ; Sommer v. Wilt, 4 S. & R. 19.

(a) Cotterell v. Jones, 7 Eng. L. & Eq. 475; Barron v. Mason, 31 Vt. 198.

(6) Farlie v. Danks, 30 Eng. L. & Eq. 115.

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