39. Running accounts. Such accounts as concern the trade of merchandise between merchant and merchant were by the original statute of James I. exempted from its opera tion ; and among these mutual and open accounts current were early held to be in. eluded, Peake, Cas. 164; 6 Term, 189, if they contained upon either side any item upon which the right of action accrued within six years, whether the accounts were between merchant and merchant or other persons. And this construction of the law, based, as is said in some cases, upon the ground that such accounts come within the equity of the excep tion in respect to merchants' accounts, and in others upon the ground that every new item and credit in an account given by one party to another is an admission of there being some unsettled account between them, and, as an acknowledgment, sufficient to take the case out of the statute, has taken the form of legislative enactment in many states in this country, and, in the absence of such enactment, has been generally followed by the courts. 20 Johns. N. Y. ‘76 ; 8 Pick. Nlass. 187 ; 6 Me. 108 ; 6 Conn. 248 ; 2 Rawle, Penn. 287 ; 4 Rand. Va. 488 ; 12 Pet. U. S. 300; 1 Hayw. No. C. 216 ; 11 Gill & J. Md. 212; 4 M'Cord, So. C. 215; 3 Blackf. Ind. 300; 3 Harr. N. J. 266; 3 Miaa. 786.
40. But there must be a reciprocity of dealing between the respective parties, and the accounts must be such that there may be a fair implication that it is understood that the itema of one account are to be a Bet-off so far as they go against the items of tbe account. 2 Sumn. C. C. 410. Where tb e items of account are all on one side, as between a shopkeeper and his customer, or where goods are charged and payments credited, there is no mutuality, and the statute bars the account. 4 M'Cord, So. C. 214 ; 2 Sandf. N. Y. 318; 17 Berg. & R. Penn. 347. And where, in the case of mutual account, after a statement, tho balance has been struck and agreed upon, the statute at once applies to such balance as a distinct demand, 2 Saund. 125 ; 6 Me. 337 ; unless it is made the first item of a neyi mu tual account. 3 Pick. Mass. 96 ; 1 Mod. 270.
41. A closed account is not a state ac count. In order to constitute the latter., an account must have been rendered by one — party, and expressly or impliedly assented to by the other. 8 Pick. Mass. 187; 6 Me. 308 ; 12 Pet. 300. Accounts between merchant and merchant are exempted from the operation of the statute, if current and mutual, although no item appears on either side within six years. 8 Bligh, 352; 6 Pick. Mass. 364; 5 .Cranch, 15 ; 13 Penn. St. 300 ; 1 T. L. Smith, Ind. 217. A single transaction between two merchants is not within the exception, 17 Penn. St. 238; nor is an account between partners, 3 R. I. 87 ; nor an account between two joint-owners of a vessel, 10 B. Monr. Ky. ,112 ; nor an account for freight under a charter-party, although both parties are mer chants, 6 Pet. 151; nor any account between nierchants, unless concerning the trade of merchandise, or, in other words, originating in articles of merchandise. 7 Miss. 328.
42. New promise to pay debt barred. There is another important class of exceptions, not made by the statute, but by the courts, where in, although the statutory limitation may have expired, parties bringing themselves within the exception have always been allowed to recover. In actions of assumpsit, an ac knowledgment of existing indebtedness made under such circumstances as to be equivalent to a new promise express or implied, and within six years before the time of action. • brought, will take the case out of the operation of the statute, although the original cause of action accrued more than six years before that time. And this proceeds upon the ground that as the statutory limitation merely bars the remedy and does not discharge the debt, there is something more than a merely moral obligation to support the promise,—to wit, a pre-existent debt, which is a sufficient con sideration for the new promise. 2 Mae. C. C.
151. The new promise upon this sufficient consideration constitutes, in fact, a new course of action. 4 East, 399: 1 Pet. 351.
43. This was undoubtedly a liberal con struction of the statute; but it was early adopted, and has maintained itself, in the face of much adverse criticism, to the present time. While, however, at an early period there was an inclination of the courts to accept the slightest and most ambiguous expressions as evidence of a new promise, the spirit and tend ency of modern decisions is towards greater strictness, and seem to be fairly expressed in the learned judgment of the late Mr. Justice Story, in the case of Bell v. Morrison, 1 Pet. 351. "It has often been matter of regret, in modern times, that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the•statute; that, instead of being viewed in an unfavor able light, as an unjust and discreditable defence, it had [not] received such support . as would have made it, what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of dine, but to afford security against stale demands after the true - state of the transactions may have been for gotten, or be incapable of explanation, by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlement of accounts, and to suppress those prejudices which may rise up at a distance of time and baffle every honest effort to coun teract or overcome them. Parol evidence "nay be offered of confessions (a species of evidence which, it bas been often observed, it is hard to disprove and easy to fabricate) applicable to such remote times as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further, and admit that loose and general expressions, from which a probable or possible interence may be deduced of the acknowledg ment of a debt by a court or jury, that, as the language of some cases has been, any acknow ledgment, however slight, or any statement not amounting to a denial of the debt, that any admission of the existence of an unsettled account, without any specification of amount or balance, and however indeterminate and casual, are yet sufficient to take the case out of the statute of limitations, and let in evi deuce, aliunde, to establish any debt, however large and at whatever distance of time; it is easy to perceive that the wholesome objects of the statute must be in a great measure defeated, and the statute virtually repealed." . . . "If the bar is sought to be removed by the proof of a new promise, that proving, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, they ought to be shown to be performed." 44. And to the same general purport are the following cases, although it is undeniable that in the application of the rule there seems in some cases to be a looseness and liberality which hardly comport with the rule. 11 How. 493 ; 32 Me. 260 ; 14 N. H. 422 ; 22 Vt. 179 ; 3 Cush. Mass. 155 ; 7 Hill, N. Y. 45 ; 16 Penn. St. 210 ; 12 Ill. 146 ; 4 Fla. 481 ; 19 Miss. 419 ; 22 id. 52 ; 5 Ga. 486 ; 9 B. Monr. Ky. 614 ; 10 Ark. 134 ; 11 Ired. No. C. 447 ; 8 Graft. Va. 110 ; 20 Ala. N. s. 687.