Walker v. Burgess

Decision Date23 March 1898
Citation44 W.Va. 399,30 S.E. 99
PartiesWALKER. v. BURGESS et al.
CourtWest Virginia Supreme Court

30 S.E. 99
44 W.Va. 399

WALKER.
v.
BURGESS et al.

Supreme Court of Appeals of West Virginia.

March 23, 1898.


Statutes—Retrospective Effect —Limitations —Set-Off.

1. A statute changing the period of limitation will not be applied to antecedent transactions, unless its letter or necessary intent demand a retroactive construction.

2. An assignee of a note, suing upon it, may plead the statute of limitations against a setoff based upon a demand against the assignor.

(Syllabus by the Court.)

Error to circuit court, Wayne county; Thomas H. Harvey, Judge.

Assumpsit by A. Walker against Burgess & Napier. Plaintiff had judgment, and defendants bring error. Affirmed.

Campbell, Holt & Campbell, for plaintiffs in error.

Marcum, Marcum & Shepherd, for defendant in error.

BRANNON, P. The action was upon five promissory notes made by Burgess & Napier to P. S. Walker, and by the latter transferred to plaintiff, A. Walker, and defendants pleaded set-offs, based on store account against P. S. Walker, and the plaintiff replied against the set-offs the statute of limitation of three years. Thus two questions arise:

(1) Is three years the bar, under section 6, c. 104, Code 1891, which was in force when the set-offs accrued, and also when the action began, or five years, under chapter 2, Acts 1895, amending said section, which act was in force when the plea of set-offs was filed?

(2) Can the plaintiff plead the statute?

The first question we answer by saying that statutes are to be construed to be prospective in operation, and not to retroact, and govern antecedent transactions. I use the word "construed, " meaning that courts do not, by mere construction, give statutes backward effect, but will do so if the letter of the statute or necessary and inevitable intent require it. Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736. And, though statutes of limitation do not destroy the right, but affect only the remedy, this court has applied the rule to such statutes. State v. Mines, 38 W. Va. 125, Syl. point 6, 18 S. E. 470; Maslin's Ex'rs v. Hiett, 37 W. Va. 15, Syl. point 2, 16 S. E. 437; Fowler v. Lewis, 36 W. Va. 113, 14 S. E. 447; Casto v. Greer, 44 W. Va. —, 30 S. E. 100. Nothing in the new statute calls for

[30 S.E. 100]

retroactive construction; and the period of three years, being the bar at date of the sale of the store goods, applies, not the new law in force at the date of the plea.

As to the second question. It is true that generally the statute of limitations is a plea personal to the debtor, which he may use or...

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