case Farrington against lee to ail action of assumpsit upon ail account state  the defendant may plead the statute of limitation S C Mod ante tothil march  Mod pale yellow Eq Rep vern vern Abr Eq sand sand stram stram Peer wms gilbert  law of evidence that edit assumpsit the plaintiff declare upon two indebitatus  assumpsits and a three assumpsit upon a accuse computtisset the defendant  plead non plank si begin a sex p aged the plaintiff reply that himself be a  merchant and the defendant his factor and recite a clause in the statute James  c in which action of account between merchant and merchant and merchant and  their factor concern modern their trade and merchandise be except and aver  that this money become due to the plaintiff upon a account betwixt he and the  defendant concern merchandise c the defendant make a impertinent rejoinder to  which the plaintiff demurrer Newdigate for the plaintiff this statute be in  the nature of a penal law because it restrain the liberty which the plaintiff  have by the commonlaw to bring his action when be will and must therefore be  construe beneficial for the plaintiff the case of finch v lamb be to the  purpose also this exception of account between merchant and their factor must  be liberal expound for their benefit because the lawmaker in make such a  exception have a eye to the encouragement of trade and commerce the word of  the exception be other than such account as concern the trade of merchandise c  now this action of we be not indeed a action of account but it be a action  ground upon a account and the plaintiff be at liberty to bring either the one  or the other upon the same cause of action and one of the action be except  express out of the limitation of the statute the other by equity be except  also he cite hill car in march report and Sandys v Bloodwell Jones and pray  judgement for the plaintiff sergeant Baldwin contra he say it do not appear in  the declaration that this action be betwixt a merchant and his factor so that  then the plea in bar be prima fancy good and when he come and set it forth in  his replication he be too late in it and the replication be not pursuant to  his declaration but all the court be against he in this the sergeant then say  the statute except action of account only and not action upon a indebitatus  assumpsit the court whereas it have be say by sergeant Newdigate that the  plaintiff modern er p here have a election to bring a action of account or a  indebilatus assumpsit that be false for till the account be state betwixt they  a action of account lie and not a action upon the case when the account be  once state then a action upon the case lie and not a action modern of account  and by north chief justice if upon a indebitatus plank sit matter be offer in  evidence that lie in account I do not allow they to be give in evidence north  chief justice Wyndham and Scroggs justice the exception of the statute go only  to action of account and not to other action and we take a diversity betwixt a  account current and a account state after the account state the certainty of  the debt appear and all the intricacy of account be out of door and the action  must be bring within six year after the account state but by north if after a  account state upon the balance of it a sum appear due to either of the party  which sum be not pay but be afterward throw into a new account between the  same party it be dow slip out of the statute again Scroggs justice the statute  make a difference betwixt action upon account and action upon the case the  word will else have be all action of account and upon the case other than such  action as concern the trade of merchandise but it be otherwise pen other than  such action as concern c and as this case be there be no action betwixt the  party the account be determine and the plaintiff put to his action upon a  accuse comvuldsset which be not within the benefit of the exception atkins  justice I think the maker of this statute have a great regard to the person of  merchant than the cause of action between they and the reason be because they  be often out of the realm and can always prosecute their action in due time  the statute make no difference betwixt a account current and a account state I  think also that no other sort of tradesman but merchant be within the benefit  of this exception and that it do not extend to shopkeeper they not be within  the same mischief djournalur a it appear by S C Mod that in Trinity term car  judgement be give for the defendant a michaelmas term the twentysecond of  Charles the second in the king bench Monday October sir John Kelynge Knt chief  justice sir Thomas Twisden Knt sir Richard Rainsford Knt sir William Moreton  Knt justice sir Heneage finch Knt attorneygeneral sir Edward turner Knt  solicitor general