1 This provision has been repealed in England by Stat. 19 & 20 Vict, c 97, § 9, and exists in but few of the United States. In Green v. Disbruw, 79 N. Y. 1, the history of the various statutory provisions upon the subject of " accounts " is given, and the authorities collated and discussed.

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." The earlier cases will be found fully collected in a learned note to Webber v. Tivill. 2 Saund. 121, by Serjeant Williams. And see Spring v. Gray, 5 Mason, 505, 6 Pet 151. In this case, Marsha/I, C. J., after quoting the language of the statute, says. "From the associations 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 except those actions only for which account would lie. Be this as it may, the words certainly require that the action should be founded on account." See also Toland v. Sprague, 12 Pet 300; Didier v. Davidson,

2 Barb Ch. 477.

(o) Where the joint owners of plantations in Java, which they worked in copartnership, kept an account with certain merchants and agents at Bombay, to whom they became largely indebted in seems formerly to have been entertained, * that none were merchants, within the meaning of this exception, save those who traded beyond sea. (p) But that clearly would not be held now. So, also, an opinion has prevailed, to some extent, that the exception does not extend to accounts between merchants, as partners; (q) but we doubt whether there is good reason for such restriction.(r) Whether common retail tradesmen come within the exception, as being merchants, is more uncertain. (s) respect of moneys advanced and paid for their use; it was held, that the account was not a mercantile account, within the meaning of the exception in the statute of limitations. Forbes v Skelton, 8 Simons,

1 An account between a lawyer and a merchant is not within the provision. Both parties to the account must be merchants. Mattern v. McDivitt, 113 Pa. 402.

335. And in Spring v Gray, 5 Mason, 505, 6 Pet. 151, it was held, that a special contract between ship-owners ana a shipper of goods, to receive half profits in lieu of freight on the shipment for a foreign voyage, was not a case of merchants' accounts, within the exception in the statute of limitations. And Marshall, C. J., said: " The account must be 'one which concerns the trade of merchandise.' The case protected by the exception is not every transaction between merchant and merchant, not every account which might exist between them; but it must concern the trade of the merchandise. It is not an exemption from the act, attached to the merchant merely as a personal privilege, but an exemption which is conferred on the business, as well as on the persons between whom that business is carried on. The account must concern the trade of merchandise; and this trade must be, not an ordinary traffic between a merchant and any ordinary customers, but between merchant and merchant." In Watson v. Lyle, 4 Leigh,

336, where the plaintiff replied to a plea of the statute of limitations, that the cause of action consisted of accounts, which concerned the trade of merchandise, between merchant and merchant, and no evidence was adduced to prove that either party was a merchant during the time of the dealings between them, nor any evidence of the character of those dealings but that furnished by the account of the plaintiff, in which accounts the debits to the alleged debtor consisted of two items for cash paid him on account of bills of exchange, one item for goods sold him, and the other items for cash advanced to or for him, and there was a single credit for the proceeds of a bill of exchange bought of him; it was held, that the replication was not supported by the evidence, and the demand therefore was barred by the statute. Again, in Farmers & Mechanics Bank v. Planters Bank, 10 Gill & J. 422, it was held, that the exception did not apply to transactions between banking institutions. And see further Dutton v. Hutchinson, 1 Jur. 772; Coster v. Murray, 5 Johns. Ch, 522, 20 Johns. 576; Lansdale v. Brashear, 3 T. B. Mon. 330; Patterson v Brown, 6 id. 10; Smith v. Dawson, 10 B. Mon. 112; Price v. Upshaw, 2 Humph. 142; Slocumb v. Holmes, 1 How. (Miss.) 139; Fox v. Fisk, 6 id. 328; Marseilles v. Kenton, 17 Pa. 238; McCulloch v. Judd, 20 Ala. 703; Blair v. Drew, 6 N. H. 235; Sturt v, Mellish, 2 Atk. 612; Codman v. Rogers, 10 Pick. 118; Coalter v. Coalter, 1 Rob. (Va.) 79.

(p) Thus, in Sherman v. Withers, 1 Ch. Cas. 152, which was a bill of equity for an account of fourteen years' standing, it appeared that the plaintiff was an inland merchant, and the defendant his factor. The defendant pleaded the statute of limitations. And "upon debate of the plea, the Lord Keeper conceived the exception in the statute, as to merchants' accounts, did not extend to this case, but only to merchants trading beyond sea." And see Thomson v. Hopper, 1 Watts & S. 469.

(q) Bridges v. Mitchell, Bunb. 217; Lansdale v. Brashear, 3 T. B. Mon. 330; Patterson v. Brown, 6 id. 10; Coalter v, Coalter, 1 Rob. (Va.) 79.

(r) See Ogden v. Astor, 4 Sandf. 327.

(s) in Farrington v. Lee, 1 Mod. 268, Atkyns, J., said: " 1 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. 1 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." And see Cottam v. Partridge, 4 Scott, N. R. 819, where this question was raised, but not decided.

It has been much questioned whether this exception required that, even where the account was between merchants and in relation to merchandise, some item of it must be within six years, (t) It would seem that this construction adds to the statute. It requires, for admission within the exception, a new, distinct, and important element, which the statute certainly does not express, and perhaps, does not indicate. We consider this * question as now settled in England, in the negative; and believe that it will be so held in this country, (u)