Edmondstone vs. Thomson, 15 Wend. 554

By the Court, Savage, Ch. J. The only questions to be decided are : 1. Whether all the items allowed in the plaintiff’s account, except the two last, are not barred by lapse of time, and 2. Whether interest was properly allowed. By the revised statutes an action may be commenced against individuals either by capias ad respondendum, or by filing in the office of the clerk of the court" a declaration, entering a rule to plead, and serving a copy of such declaration and notice of such rule personally on the defendant.

Nothing can be more' plain than that the suit is not commenced until the declaration is personally served on the defendant: that is, handed to him or tendered to him, or perhaps to some other person in his presence and by his direction. It has been frequently decided by this court that the declaration under this mode of proceeding is a substitute for process. The service of a declaration on a servant is of no more effect than a similar service of a capias.

More than six years had elapsed, therefore, as to all the plaintiff’s account, with the exception of two items charged as of the 17th and 18th of April, 1827 ; the suit not having been commenced until the 6th of April, 1833. It is contended, however, by the plaintiff’s counsel, that the demand is not barred for two reasons: 1. Because the plaintiff’s demands are in a running open account, continuing down to the 17th and 18th April, 1827 ; 2; Because the parties’ demands are mutual accounts. If we are to consider our owri decisions as of any authority, it would be improper to re-argue this matter.

This case cannot be distinguished from Kimball v. Brown, 7 Wendell,322. In that case the plaintiff’s account consisted of eight items extending from May, 1819, to Bee. 1822, the last of which only was within the six years. Here the plaintiffs account, which was unsettled, consisted of seven items, two of which are within six years. In that case there were no mutual dealings nor reciprocal demands; neither were there in this case. If therefore one case can be authority f°r another, the case of Kimball v. Brown, must govern this.

The plaintiff there was entitled to recover the only item of his account which was within six years ; so the plaintiff here is entitled to recover the two items in his account which are within six years. He produced an account embracing many items anterior to April 1, 1827, but the defendant produced receipts in full for all the items down to that date. The plaintiff’s account is an open running account only from the 1st to the 18th of April, inclusive. The defendant did not prove any account. There were therefore no mutual accounts between the parties.

A payment proved by a receipt is no more evidence of an account, than it is of a set-off. Accounts are mutual where each party makes charges against the other in his books, for property sold, services rendered, or money advanced,&c. as for rent due, as in the case of Catling v.Skoulding, 6 T. R. 189, which furnishes an example of mutual accounts: the plaintiff’s account was for nine years rent, and the defendants’ account was for articles in their business as dealers in liquors, and tallow chandlers. The recent case of Chamberlin v. Cuyler, 9 Wend. 126, furnishes another.

The items of the plaintiff’s account do not appear in the report of that case. Those of the. defendant are stated, and the whole account was allowed solely upon the principle of the mutuality of the accounts between the parties. This is not such a case. The referees erred in alowing interest upon an unliquidated account; the items for money paid bear interest, but not the others. The report must be set aside, costs to abide the event, unless the plaintiff elects in 30 days to take report" for the two last items of his account with interest upon them. In that event, motion, denied; otherwise granted.