Clark v. Maguire's Administratrix

The opinion of the court was delivered by Thompson, J. Measured by the case of Burr v. Burr, 2 Casey 284, and the authorities therein cited, the declarations of Maguire were insufficient to take the case of the plaintiff out of the statute of limitations. And it was conceded, that even a promise by the administratrix would not have that effect, although in form sufficient. The plaintiff’s case rests therefore alone on the ground of mutual dealing; for there was no evidence of payment on account. Were these mutual accounts between the parties ? In Edmomdstone v. Thomson, 15 Wend. 554, it is said “ accounts are mutual when each party makes charges against the other in his books, for property sold, services rendered, or money advanced.” In Chambers v. Marks, 1 Casey 296, Black, J., asserts the same principle as to the necessity of mutual accounts, to take a case out of the statute, but doubted whether it was requisite that the accounts be in writing. In Lowber v. Smith, 7 Barr 381, mutual accounts or [261] reciprocal demands arising out of current dealings, it is ruled, will prevent the statute from running, if any of the items are within six years before suit brought. There are many decisions in our books, and in the neighbouring states, to the same effect. The plaintiff’s demand rested on two non-negotiable notes given by the defendant’s intestate in 1841. This was nothing like an account on her part. The demand stands upon an entirely different footing. There is no presumption of extinguishment, as there is in cases of open and running accounts. It has not yet been heard of, that a charge in a man’s book will defeat his plea of the statute against another who holds an old note of ten or fifteen years’ standing. Direct payment only will have the effect of tolling the statute. We think the District Court were right in entering judgment for the defendant non obstante veredicto. Judgment affirmed.