Limitation of Actions. every judgment confessed, lien created, or security given, under like circumstances, are void against creditors. And so also of such sale, assignment and transfer, or lien created, &c., when made by any partner. Every special partner who shall violate any of the preceding provisions, is liable as a general partner. In case of insolvency or bankruptcy of partnership, no special partner shall claim as a creditor until all other creditors are satisfied. No dissolution of partnership by the acts of parties can take place, previous to the time specified in renewal or original certificate, until notice is filed and recorded in the clerk's office of the original certificate, and published once a week for four weeks in a newspaper printed in each of the counties or corporations where the partnership has its place of business, or if there is no newspaper therein, then in the nearest newspaper, &c. (a) 5. Limitation of Actions. The general act of Virginia provides that all actions upon the case, other than for slander, and other than such accounts as concern the trade of merchandise between merchant and merchant, and all actions for account, and all actions for trespass, debt, detinue, and replevin for goods and chattels, shall be commenced and sued within five years next after the cause of such action or suit, and not after. (b) This act is copied from the English act, 21 Jac. 1, ch. 16, sec. 3, excepting only the time of the limitation, and English decisions upon their act would probably be held as explanatory of the Virginia law. To an action of deceit in the sale of a chattel, brought more than five years after the sale, plea of the statute of limitations, with general replication, is a good bar, for the cause of action arose when the deceit was practised. (c) But to each plea a replication that the deceit or fraud was discovered within five years before the commencement of the action, is a sufficient answer. (d) (a) Acts of 1837, 81. (b) R. C. c. 128, § 4. (c) Rice v. White, 4 Leigh. 474. (d) Same case per Tucker J., Shields v. Anderson, 3 Leigh. 729. Limitation of Actions. In reference to merchants' accounts excepted in the above statute, it is said that to bring his case within this exception, the plaintiff must show that both parties were merchants, and besides there must be mutual accounts and reciprocal demands, for if all the items be on one side, it is no account between merchant and merchant. (a) An account between merchant and merchant, although closed by cessation of dealing, is not an account stated, and is still within the exemption; nor is it necessary that any of the items in such account be within five years before suit, (b) nor is it necessary that in such account the items should altogether consist of merchandise and goods sold. (c) This exemption does not apply to accounts between merchants and their customers, because the customers are not merchants, and because the seventh section of the same act enacts that all actions or suits founded upon any account for goods, wares, or merchandise, sold and delivered, or for any articles charged in any store accounts, shall be commenced and sued within one year (now two years) (d) next after the cause of such action or suit, or the delivery of such goods, wares, or merchandise, and not after; except that, in case of the death of the creditors or debtors, before the expiration of the said term, the further time of one year from the death of such creditor or debtor shall be allowed for the commencement of any such action or suit. This act does not apply where the trader has no retail store, but sold his goods at auction; in such case the limitation is not two, but five years. (e) This act, too, has been extended, so as to run against a claim asserted for a decedent's estate, not from death of the decedent, but only from the qualification of the executor or administrator, (ƒ) and the same would probably be true as to a claim against a decedent's estate (g) But the act does not run in favor of executors de son tort. (h) The thirteenth section provides that where one out of this country shall through a factor sell and deliver goods here, and (a) 2 Tuck. Com. 153. (b) Watson v. Lyle, 4 Leigh. 249; Coalter v. Coalter, 1 Rob. 79. (c) Watson v. Lyle, 4 Leigh. 249. (e) Tomlin v. How, I Wash. 190. (d) Acts 1838, c. 95, §5. (f) Hansford v. Elliott, 9 Leigh. 79. (h) Hansford v. Elliott, 9 Leigh. 79. Limitation of Actions. such factor shall die within the limitation allowed, this act shall be extended two years from the death of such factor. Generally, the lex fori alone governs the remedy, but an act passed in 1836 provides, that where suit is brought upon the judg ment of a court of any state of the United States, the defendant may plead any act of limitation of force in such state, and that such plea shall have the same force that it would have in a similar action in such state. (a) Under this general act, and up to 1838, the doctrine of new promises remained as in England under her cognate act, capable of being sustained so as to take a debt out of the statute, by reacknowledgment, part payment, or other evidence of a new promise, expressed or implied. But an act passed in 1838 enacts that in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise made hereafter, by words only, shall be deemed sufficient evidence of a new and continuing contract, whereby to take any case out of the operation of the act before memtioned, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and the third section extends the same to set-offs. (b) This statute is, throughout, the same with the English, called Lord Tenterden's act, (c) with these two exceptions. 1. The English act provides that nothing in that act shall alter, take away, or lessen the effect of any payment of any principal or interest made by any person whomsoever. This is omitted from the Virginia statute. 2. The Virginia statute provides that every such written promise or acknowledgment shall be held and taken to be a drawing down of the original debt or contract to the date of the said promise or acknowledgment. This is not in the English act. By all these statutes, specialties are left as they were at the common law, subject, after twenty years, to a presumption of payment which might be rebutted. But a statute passed in 1826 enacts that all actions founded on bonds executed by executors, administrators, guardians, sheriffs, and some other officers men (a) Acts 1838, c. 62. (b) Ib. c. 95. (c) 9 Geo. 4, c. 14. See Act at large in Joynes on Lim. App. Parol Agreements. tioned, and other persons acting in a fiduciary character, either public or private, shall be instituted or brought within ten years after the right or cause of action shall have accrued, and not afterwards. (a) But the defendant must be fiduciary as to the plaintiff; his being fiduciary as to any other person is not sufficient. (b) 6. Parol Agreements. No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for a longer term than one year, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. (c) This statute is copied, with but one variation, from 29 Car., 2, c. 3, and hence the decisions of the English courts upon their statute apply to this. The variation referred to is important. The English statute requires the agreement by which one promises to pay or see paid the debt due by another, to be in writing, whilst the Virginia statute, in the same case, requires the promise or agreement to be in writing. Agreement comprehends the consideration of the undertaking, promise does not. Hence, in Virginia the consideration which moved the promisee to undertake, need not be in writing, although in England it is otherwise. (d) As to the promise of one to pay or see paid the debt due by (a) Sup. R. C. c. 200, §1. (b) Spotswood v. Dandridge, 4 H. & M. 139; Redwood v. Riddick, 4 Mun. 222. (c) R. C. c. 101. (d) Violet v. Patton, 5 Cranch. 151; Colgin v. Henley, 6 Leigh. 85; Johnson v. Ronald, 4 Mun. 77. Fraudulent Conveyances. another, this distinction is taken. Where the promiser merely agrees to see the debt paid, and the original debtor is not released from his obligation, so that the creditor has a double remedy, the promise is collateral (in the nature of a security), and must be in writing to bind the promiser. But where the promiser undertakes to pay the debt due by another without any reference to that other, the promise is direct, for the debt is then his own and no longer another's, and is therefore out of this statute, and need not be in writing. (a) This direct promise, when relied on, must be strictly proved. A merchant cannot charge the goods sold to his customer to the promiser, and thereby make him directly responsible, so as to avoid the necessity, under this statute, for a written promise. (b) Though a collateral promise be in writing, a sufficient consideration must have moved to the promiser. (c) Part performance of a collateral promise, though not in writing, will take that promise out of this statute. (d) Another statute provides that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon the same, unless such representation or assurance be made in writing signed by the party to be charged therewith. (e) 7. Fraudulent Conveyances. By the statute (f) every gift, grant, or conveyance of lands, tenements, hereditaments, goods or chattels, or of any rent, common or profit, out of the same, by writing or otherwise, and every bond, suit, judgment or execution had or made and contrived to delay, hinder or defraud creditors of their just and lawful actions, suits, debts, accounts, &c., or to defraud or deceive those who (a) Waggoner v. Gray, 2 H. & M. 611. (b) Cutler v. Hinton, 6 Ran. 518. (c) Waggoner v. Gray, 2 H. & M. 611; Colgin v. Henley, 6 Leigh. 85. (d) Wilde v. Fox, 1 Ran. 165; Anthony v. Leftwich, 3 Ran. 238; Rowton v. Rowton, 1 H. & M. 99. (e) Acts 1840-41, c. 60, § 1. (f) R. C. c. 101, §2. |