Constructive notice of fraud is sufficient to start the statute running even though there may be no actual notice, and where the means of discovery lie in public records it is sufficient constructive notice ; Board of Com'rs of Garfield County v. Renshaw, 23 Okl. 56, 99 Pac. 638, 22 L. R. A. (N. S.) 207. A bill in equity to enjoin the pleading of the statute will be allowed where the defendant, without notice to the plaintiff, sold certain bonds on which a commission for collection was due the plaintiff ; Holloway v. Appelget, 55 N. J. Eq. 583, 40 Atl. 27,'62. Am. St. Rep. 827.
Runnting accounts. Such accounts as con cern the trade of merchandise between mer chant and merchant were by the original statute of James I. exempted from its oper ation. The earlier statutes of limitation in this country contained the same exception. But it has been Very generally omitted in late revised codes. Among the accounts ex cepted from the operation of the statute all accounts current were early held to be in cluded; 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 con struction of the law, based, as is said in some cases, upon the ground that such ac counts 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; Murray v. Coster, 20 Johns. (N. Y.) 576, 11 Am. Dec. 333 ; McLellan v. Crof ton, 6 Greenl. (Me.) 308 ; Ashley v. Hill, 6 Conn. 246; Toland v. Sprague, 12 Pet. (U. S.) 300, 9 L. Ed. 1093; Lee v. Polk, 4 McCord (S. C.) 215 ; Hibler v. Johnston, 18 N. J. L. 266; Mandeville ,& Jamesson v. Wilson, 5 Cra. (U. S.) 15; Chambers v. Marks, 23 Pa. 296 ; Norton v. Larco, 30 Cal. 126, 89 Am. Dec. 70.
But there must be a reciprocity of dealing between the respective parties, and the ac counts must be such that there may be a fair implication that it is understood that the items of one account are to be a set-off so far as they go, against the items of the other account ; Boylan v. The Victory, 40 Mo.
244; Atwater v. Fowler, 1 Edw. Ch. (N. Y.) 417; Chambers v. Marks, 25 Pa. 296. Where the items of account are all on one side, as between . a shopkeeper and his customer, or where goods are charged and payments cred ited, there is no mutuality, and the statute bars the account ; Hallock v. Losee, 1 Sandf. (N. Y.) 220; Ingram v. Sherard, 17 S. & R. (Pa.) 347; Wilson v. Calvert, 18 Ala. 274; See Borland v. Haven, 37 Fed. 394. And where, in the case of mutual account, after a statement, the balance has been struck Und agreed upon, the statute at once applies to such balance as a distinct demand; 2 Saund. 125; McLellan v. Crofton, 6 Greenl. (Me.) 308; Toland v. Sprague, 12 Pet. (U. S.) 300, 9 L. Ed. 1093 ; unless it was made the first item of a new mutual account; President, etc., of Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181 ; 8 Cl. & F. 121; but see Estes v. Shoe Co., 54 Mo. App. 543.
The statute begins to run against mutual accounts from the date of the last credit and.not from the last debit ; George v. Ma chine Co., ˘5 Vt. 287, 26 Atl. 722; and if the last item on either side of a mutual account is not barred, the whole account is saved from the operation of the Atatute; Chadwick v. Chadwick, 115 Mo. 581, 22 S. W. 479; Cargill v. Atwood, 18 R. I. 303, 27 AM 214.
A closed account is not a stated account. In order to constitute the latter, an account must have been rendered by one party, and expressly or impliedly assented to by the other ; Bass v. Bass, •8 Pick. (Mass.) 187; McLellan v. Crofton, 6 Greenl. (Me.) 308; Toland v. Sprague, 12 Pet. (U. S.) 300, 9 L. Ed. 1093. Accounts between merchant and merchant are exempted from the operation of the statute, if current and mutual, al though no item appears on either side with in six years; 19 Ves. 180; 2 Saund. 124; Thompson v. Fisher, 13 Pa. 310 ; Bracken ridge v. Baltzell, Smith (Ind.) 217. A single transaction between two merchants is not within the exception ; Marseilles v. Kenton's Ex'rs, 17 Pa. 238; nor is an account between partners; Hendy v. March, 75 Cal. 566, 17 Pac. 702; nor an account between two joint owners of a vessel; Smith v. Dawson, 10 B. Monr. (Ky.) 112; nor an account for freight under a charter-party, although both parties are merchants ; Spring v. Gray, 6 Pet. (U. S.) 151, 8 L. Ed. 352.