The statute of James applies to "all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or id. 129; Kyle v. Wells, 17 id. 286; Gil-lingham v. Gillingham, id. 302. But see the recent New York cases, cited in the preceding note, which show that the old rale is still adhered to in that State.

(h) Grenfell v. Girdlestone, 2 Younge & C. 662.

(i) Per Tindal, C. J., in Haydon v. Williams, 7 Bing. 166.

(j) See Gale v. Capern, 1 A. & E.

102; Cripps v. Davis, 12 M. & W. 159; Bird v. Adams, 7 Ga. 505; Dean v. Hewitt, 5 Wend. 257; Little v. Blunt, 9 Pick. 488; Howe v. Thompson, 2 Fairf. 152.

(k) Megginson v. Harper, 2 Cromp. & M. 322; Hill v. Kendall, 25 Vt. 528.

(l) Baxter v. Penniman, 8 Mass. 133: Jones v. Moore, 5 Binn. 573.

v Patterson, 137 111. 403; Hargis v. Sewell's Adm. 87 Ky. 63: In re Kendrick, 107 N. Y. 104; Hussey v. Kirkman, 95 N. C. 63; Spangler v. Spangler, 122 Pa. 358. But if made with intent that it should be communicated to the creditor and it is so communicated, it is binding. De Freest v. Warner, 98 N. Y. 217. In Croman v. Stall. 119 Pa. 91, it was held that if made to a party in interest, a new promise could be enforced. And in the following cases it was held sufficient if made to a stranger. Utz v. Utz, 34 La. An. 752; Emerson v. Aultman, 69 Md. 125.

servants." And similar language, or a similar provision is frequently found in the statutes of limitations of this country.1

When an action is brought to which the statute of limitations is pleaded in bar, and the question arises whether this exception can be applied, so as to remove the bar, it is necessary to inquire, 1st, whether the transaction upon which the action is founded, constitutes an " account" within the meaning of the exception; and, 2d, whether the account is one which concerns " the trade of merchandise, between merchant and merchant, their factors or servants," within the meaning of the exception. And unless both of these questions can be answered in the affirmative, the statute will apply. In regard to the first of these questions, it is settled in England, by recent cases, that a transaction will * not constitute an "account" within the meaning of this exception, unless it is such that it would sustain an action of account, or an action on the case for not accounting. (n) This doctrine * appears

(n) Inglis v Haigh, 8M..& W. 769. This was an action of indebitatus assumpsit, in which the plaintiff declared for work and labor, money lent, money paid, and for interest. The defendant pleaded the statute of limitations. The plaintiff replied, that he and the defendant were both merchants, and that the cause of action stated in the declaration arose in a coarse of dealing, carried on between the plaintiff and defendant, as merchant and merchant, and consisted of items in an open and unsettled account between them, as such merchants; and which said account contained various items in favor of the defendant, and the balance due on which he, the plaintiff, sought to recover in the present action. The question was, whether this replication was a sufficient answer to the plea. And the court Held that it was not Parke, B., in delivering the judgment of the court, said: " The plea of the statute of limitations is a complete bar, unless the plaintiff, by his replication, can take the cane 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." [His Lordship then proceeded to examine the cases.] "In none of these 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 account* as concern the trade of merchandise, between merchant and merchant, their factors or servants.' Now, as was said by Scroggs, J., in the case of Farrington v. Lee, 1 Mod. 269, 2 id. 311, 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 concerned 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 to rest upon very satisfactory grounds, and we think it will be adopted by the courts in this country. As to the second question, there seems to be no test by which it can be determined, other than that furnished by the language of the statute. In applying this language, however, to the facts of particular cases, much aid may be derived from the cases already decided.(o)l An opinion 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 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." About a year afterwards, the case of Cottam v. Partridge, 4 Scott, N. R. 819, was decided in the Common Pleas That was an action of assumpsit, for goods sold and delivered. It appeared that the plaintiffs were iron-founders, and wholesale and retail manufacturing smiths, and agricultural implement makers. The defendant carried on the business of a retail ironmonger. The action was brought to recover the balance of an account, for goods sold and delivered by the plaintiffs to the defendant, between the month of Jane, 1830, and June, 1834 Held, that the case was not within the exception in the statute of limitations, as to merchants' accounts. And Tindal, C. J., said "In the late case of Inglis v. Haigh, 8 M. & W. 769, the Court of Exchequer seem to have decided that the exception, as to merchants' accounts, in the statute 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),