Opinion
Spring Sessions, 1860.
ON appeal from a justice of the peace. Pronarr in assumpsit, with the usual pleas.
C. S. Layton, for plaintiff below.
E. D. Cullen, for defendant below.
The party plaintiff below produced and proved the book account of the deceased, which commenced in May, 1836, and continued until August 13, 1856, on which date the last item in the account was entered. The suit was commenced below upon it April 23, 1859. The counsel for the defendant below, then offered in evidence an account of his against the deceased, commencing March 29, 1836, and terminating July 18, 1853. The item preceding the last in the account of the deceased, was entered June 18, 1855.
The question raised by the counsel in the case, was whether the account of the plaintiff below, or any part of it, and if so, what part of it, was barred by the statute of limitations; and also, whether the account of the defendant below was barred, or whether it did not constitute and prove a case of mutual accounts still open and current between the parties at the time of the institution of the suit below, and thus save and exempt both accounts from the operation of the statute of limitations.
that the mutuality of the two accounts, both of which commenced more than twenty years since, that is to say, in the year 1836, as open and current accounts with respect to each other, ceased on the 18th day of June, 1853, the date of the last item entered in the account of the defendant below against the deceased, and from that time the statute of limitations began to run against the account of the plaintiff below, that is to say, of the deceased, and that he consequently could not recover for any item charged in his account more than three years before the commencement of the suit below. But as it appeared from the evidence and the account itself, that the only item charged in the account of the plaintiff below, within the three years next preceding the commencement of the suit below, was the last item in the account, entered August 13th, 1856, it was the only item in the account which then remained unbarred by the statute of limitations, and was consequently the only item in it on which the plaintiff below, could now recover.