chant and merchant, their factors or servants," shall be commenced within the time limited. Such accounts are, then, not at all within the statute. Chancellor Kent, in the case cited, (Johns. Ch.) came to a different conclusion.* 8. BASS V. BASS, 8 Pick. Mass. Rep. 187. The death of one of the parties, the account being unsettled, does not change the nature of the demand, so as to take it out of the exception in the statute. The exception includes all demands for money growing out of the trade of merchandise, between merchant and merchant, which are the subject of account. And it is proper for the jury to determine the character of the account, and whether it concerns the trade of merchandise. But an ac count be *cipal and 9. STILES V. DONALDSON; 2 Dall. Rep. 264; MOORE V. MAURO, 4 Rand. Rep. 488. It was held in this case, that an account between a principal tween prin and his factor, was not within the act; both being merchants. factor, mer So, it was held in Virginia, that an action between merchant and said not to merchant was within the saving clause of the statute in that chants, is be within the act. state. *The exception in the statute does not extend to accounts stated; thus, if the account was stated above six years ago, the statute is pleadable: but if the account stated is changed into an account current, as it may be, by carrying the balance forward, it is otherwise; 12 Petersdorff, p. 230. It is proper to observe that the leading case settles the question in respect to what are merchant's accounts, and the effect of the statute upon them. This decision is in conformity with the reasoning of the court; 6 Term, 189: " Where there is no item of the account at all, within six years before the action brought, the plain'iff will be precluded, unless he can bring his case within the exception of the statute, concerning merchants' accounts, and in such a case his replication must bring his case within the statute. But in the latter case the plaintiff is not barred, because his case never was within the statute. The case in Cranch, settles the before disputed question, whether the saving clause applies to the action of assumpsit as well as to actions of account. And it is now confirmed that it does. Although Ld. Eldon, in Foster v. Hodgson, 19 Ves. 184, thought the opinions in regard to the question, whether the same law that applies to open accounts and to merchants' accounts, are not tobe reconciled. But, Putnam, J. in 3 Pick. 112, observes, that the better opinion is, that merchants' accounts are barred by the statute, if more than six years have passed since the dealing ceased; and he cited 18 Ves. 286, 2 Saund. 127 and notes 6.7. But the law is now settled differently in Massachusetts; and the same construction of the statute was recognized in New York; 2 Johns. 200: but the court there confined it to open accounts between merchants and to a direct concern in trade; liquidated demands or bills and notes being too remote. 10. count must it must also COSTER V. MURRAY, 20 Johns. Rep. 57, (in error in 1822;) 1 Edw. p. 426; CHIPMAN V. BATES, 5 Vt. Rep. 143. Where several were jointly concerned in the purchase of And the ac goods, and one of the purchasers takes the whole goods and is not only be to account for one-third of the proceeds, the court decided mutual; but that this was not within the exception, which intended open and current accounts, where there was mutual dealing and mutual credits: And the chief justice observed, I should very much doubt, too, whether an insurance company could be considered as a merchant. The vice chancellor, in the case in Edwards, considers this case as establishing this result; that the clause only applies to open and current accounts, as well between merchants as others, where there are mutual dealings and mutual debts and credits; and had no application to a case where the items were all on one side, and when no part of such account had arisen within six years. 11. SPRING V. GRAY'S EX'RS, 6 Pet. U. S. C. Rep. 151. be an open or running account. the U.S. This case was from Maine, in which state the statute is the Limited by same in substance as the English statute, being copied from 21 court to the James, 1. The court in this case limited the exception to deal- trade of mer ings between merchant and merchant, and also to accounts con- tween mer cerning the trade of merchandise. 12. M'NAUGHTON & Co. v. NORRIS, 1 Hay. Rep. 216; M'LELLAN V. CROFTON, 6 Greenl. Me. Rep. 307; NEWSOME V. PER- chandize be chants. The case in North Carolina decides that where the account So in Maine has been running from its commencement, the statute attaches only from the date of the last item in the account; and when the account is ended, then from the date of the last item also. And in another case, Hall, J. observed, that, even a credit not in the account of the plaintiff, is equivalent to items of credit in the account, if the jury choose so to consider it; and then the account will not bar any part of the plaintiff's account. 13. CHAMBERLAIN V. CUYLER, 9 Wend. N. Y. Rep. 126; KIMBALL v. BROWN, 7 Wend. N. Y. Rep. 322; TUCKER V. IVES, 6 Conn. 195; C. KENT, 5 Johns. Ch. 524. The account in this case consisted of eight items for nine bar- not be So accounts tween mer rels of beer; and there was but one item in the account; and, chants are cut of the not taken this too, in a case where there had been no previous mutual dealings. The court held, that there must be mutual accounts cept they be and reciprocal demands to bring the case within the exception. statute ex mutual and reciprocal demands. So in Penn sylvania es of mutual 14. INGRAM, ET AL. EX'RS. V. SHEPARD, in error, 17 S. & R. 347; The action was to recover the balance of a merchant's acthe excep tion is con count, in which there was but one charge within six years on fined to cas debit side, but none on the crdeit side, except one, which was a accounts credit beyond six years. The court, Rogers, J., said: The prinand recipro ciple which governs this case was ruled by J. Dennison, in Coates v. Harris, B. N. P. 149. The clause in the statute about merchants' accounts,extended only to cases where there were mutual accounts and reciprocal demands against two persons; and the case was not within the statute. cal de mands. A distri butee of an IV. WHEN IT BEGINS TO RUN AND WHEN IT EX- 1. VAIDEN V. BELL, 3 Rand. Rep. 448. Where an administrator is also distributee of personal proestate is not perty, the statute does not operate in respect to him in the latter affected by character; and, although five years have elapsed, yet his rights in that character are not barred.* the statute. 2. In general the rule is statute be gins to run it will con tinue not PECK V. RANDALL, MAY T. 1806, 1 Johns. N. Y. Rep. 165; The general rule is, that when the statute of limitations once begins to run, it continues to run notwithstanding any subsequent disability.† So, where goods are taken on a void authority, the statute * Where the declaration stated the drawing of certain bills and their acceptance after the death of the intestate, the granting of letters of administration to the plaintiff, the defendants' liability, &c.; and defendants pleaded that the cause of action did not accrue within six years; to which the plaintiff replied generally, that it did accrue within six years. The replication was held good. + Rogers v. Hillhouse, 3 Conn. Rep. 398; Dow v. Warren, 6 Mass. Rep. 328; Mooers v. White, 6 Johns. Ch. 372; Hudson v. Hudson, 6 Mumf. 352; Faysoux v. Prather, 1 Nott & M'Cord, 296; Craddock v. Gratz, 1 Tenn. Rep. 353; Doe v. ing a subse begins to run from the first taking, and not from the time the withstand execution is set aside. In this respest there is a distinction be- quent disa tween erroneous and irregular process; the former is good until billity. set aside or reversed, but the latter is of no effect from the beginning. 3. statute be MILLER V. ADAMS, Oct. T. 1820, 16 Mass. Rep. 456. In case The action was case against the sheriff for not duly serving against a and returning a writ. The statute of limitations being set up sheriff the in bar, the question arose at what time the plaintiff's right of ac- gins to run tion accrued held, that the statute began to run from the return from the completion of the writ into the clerk's office. The plaintiff should then of the mis have seen the defect in the return, and procured its amendment, if a sufficient service had been made; if not, he should have pursued his remedy against the officer at that time or at the farthest, after extending his execution; for, the judgment being then liable to be reversed, he might immediately have brought his action against the officer. 4. RICE V. HOSMER, March T. 1815, 12 Mass. Rep. 130; MATHER v. GREEN, 17 ib. 60. feasance. sheriff for Where the statute provides that actions against sheriffs for the The right of action misconduct of a deputy,shall be commenced within 4 years: held, against a that if the deputy takes insufficient bail on the service of mesne taking in process, the statute begins to run only from the time of the re- sufficient turn of non est inventus upon the execution; because the cause on the re of action did not accrue until judgment recovered, and the re-est inventus turn on the execution against the principal. So, in Mather v. Green, the same principle was recognised; and, the court observed: "The plaintiff might have commenced Lawyer, 1 Hawk. Rep. 337; Jones v. Brodey, 3 Murphy, 594; Langford v. Gentry, 4 Bibb's Rep. 468;Wells v. Newbolt, Cam. & Norw. Rep. 407. The statute is to be construed strictly; Ewer v. Jones, 6 Mod. 26. And it begins to run from the happening of the contingency; Fenton v. Imblers, 1 Blk. Rep. 354. It cannot be pleaded where a thing is to be done on request and no request has been made; Webb v. Martin, 1 Lev. 48; Collins v. Benning, 12 Mod. 44. It cannot be pleaded to an executory promise; Buckle v. Moore, 1 Mod. 89. And in an action for a breach of duty, the statute runs from the time of the negligence; Battley v. Faulkner, 3 B. & A. 288; Howell v. Young, 5 B. & C. 259; Brown v. Howard, 4 Moore, 508; Granger v. Grorge 7 D. & R. 729. Wages are calculated from the time of the service and not from the time of the contract; Ewer v. Jones, 6 Mod. 26. And when the statute has once began to run, no subsequent disability will stop it; Doe v. Jones, 4 T. R. 300; Perry v. Jackson, 4 T. R. 516. bail accrues turn of non on the exe cution. So in cases on a con tract; and the consider his action immediately after the return of non est inventus, upor his execution against the principal debtor." Then the sufficiency of the bail should be inquired into; and then his remedy is open to him and he is not obliged to wait until after the return non est inventus upon his execution against the bail. 5. EAMES V. SAVAGE, 14 Mass. Rep. 425; WALTER V. BRADLEY, 3 Pick. Mass. Rep. 261; SHEARMAN, ET AL. V. AKINS, 4 ib. 283. In Eames v. Savage, where money was paid on the promise where mon of the intestate to convey an estate, which he died without docy is paid ing, and the statute of limitations was pleaded, it was held, that the cause of action did not accrue when the money was paid, ation fails; but at the death of the intestate; he having his lifetime to conor money is appropriat vey the land. So, in Walter v. Bradley, where the plaintiff as ed by trus administrator, had paid the defendant the whole of his debt upsupposed on the supposition that the estate was solvent, which turned out lawiul pur to be insolvent, it was decided that the cause of action arose when the insolvency was ascertained by a decree; not when the avoids the money was paid. The right of action arising wholly from the authority, failure of consideration. the right to tees to a pose; and the cestui que trust ey then be gins. be restored And, in the case last cited, the money was paid under the beto the mon lief that they might lawfully so appropriate it out of the trust estate. The plaintiffs were guardians of the estate of the intes tate. Not having sufficient personal estate to pay the debts, &c. they obtained license to sell real estate. The sale thereof being made, the letters of guardianship were afterwards revoked, when the ward avoided the sales, and the plaintiffs in conse quence were obliged to refund the purchase money, which had been paid away in satisfaction of debts, &c. An action having been commenced to recover back this money tate's estate, the statute of limitations was set the question was, when did the cause of action arise? The court held, clearly, that the cause of action arose from the time of refunding the money. No action lay while the cestui que trust acquiesced. But, as soon as he assumed his right over the estate sold, the plaintiff's right to be restored to the money they had paid for his use began, and the six years are to be reckoned from that time.* out of the intesup in bar; and, * So, in Cowper v. Godmond, (1833,) 9 Bing. 748, which was assumpsit to recov er the consideration of a void annuity; held, that the statute of limitations did not attach until the grantor elected to avoid the annuity. Tindal, C. J. said: The cause of action comprises two steps. The first is the original advance of the money by the grantee; the second is, the grantor's election to avail himself of the |