Sprogle v. Allen

Bartol, C. J., delivered the opinion of the Court. The material question in this case arises upon the rejection by the Court below, of the appellant’s prayer, which asked the Court to disallow all the items of account filed by the appellee under his plea of set off, except such as were within three years before the filing of the plea. It appears from the evidence, that there were mutual accounts current between the parties; that of the plaintiff began in January, 1866, and continued through 1867 and 1868, there being two items in October, 1869; that of the defendant began in December, 1867, and continued through 1868; and in 1869 there are two items, one in May, and one in November, the last .being within three years before the filing of the plea of set off. To that plea the plaintiff replied the ¡Statute of Limitations, which he had a right to do, set off being in the nature of a cross-action.

Remington vs. Stevens, 2 ³³⁵ Strange, 1271; Alsop vs. Nichols, 9 Con., 357; Webster vs. Byrnes, 32 Md., 86 , and cases cited in Evans’ Practice, 189. The question is whether under the facts of this case, the plaintiff is entitled to rely on the Statute as a good answer to the plea; and this depends upon the effect of there being mutual accounts current between the parties. It is not pretended that the case comes within the exception in the Act of Limitations in favor of “accounts concerning the trade or merchandise, between merchant and merchant, etc.” (Code, Art. 57, sec. 1.) But it is contended that there being open and mutual accounts between the parties, and one item of the appellee’s account being within three years, the whole account is withdrawn from the operation of the Statute. The leading cases to which we have been referred, in support of this position are Cranch vs. Kirkman, Peake’s Cases, 164, and Catling vs. Skoulding, 6 Term R., 189.

The former was a case at nisi prius decided by Lord Kenyon, and was put on the ground, that the case came within the equity of the exception in the Statute ; for though the accounts were not between merchant and merchant, yet, being mutual and reciprocal demands, and some of the items on both sides being within the period of limitation, it was held to be within the exception. Aíterwardsthe case of Catling vs. Skoulding, came before the King’s Bench (in 1795,) and was decided on different grounds. Lord Kenyon, O. J., said, “I take it to have been clearly settled, as long as I have any memory of the practico of the Courts, that every new item and credit in an account given by one party to the other, is an admission of there being some unsettled account betwreen them, the amount of which is to be afterwards ascertained; and any act which the jury may consider as an acknowledgment of its being an'open account is sufficient to take the case out of the Statute.” ³³⁶ The decision in Catling vs. Skoulding, has been followed in this country in a great number of cases, which will be found collected in Angell on Limitations, 132, note 3. Judge Parsons, in his work on Contracts, vol. 3, pp. 71, 72, 73, (note d;) in speaking of Catling vs. Skoulding, says, “Perhaps this decision is consistent with the views then prevailing in respect to new promises and acknowledgments : but it is submitted that it cannot be sustained on principle, since the decision of Tanner vs. Smart, in England, (6 B. & C., 609,) and Bell vs. Morrison in this country, ( 1 Peters, 360 );” and while the learned author states in the same note, that the main current of American decisions is still in accordance with Catling vs. Skoulding, he says, (in his text) “we think