The treaty of peace between Great Britain and the United States
prevents the operation of the act of limitations of Virginia upon
British debts contracted before that treaty.
An agent for collecting of debts merely is not a factor within
the meaning of the thirteenth section of that act.
This was a case certified from the Circuit Court for the Fifth
Circuit, and Virginia District, in chancery sitting, in which the
opinions of the judges (Marshall, Ch. J. and Griffin, District
Judge) were opposed upon the following question:
"Whether the act of assembly of Virginia for the limitation of
actions pleaded by the defendant was, under all the circumstances
stated, a bar to the plaintiff's demand founded on a promissory
note given on 21 August, 1773?"
The certificate contained the following statement of facts
agreed by the parties,
viz.:
"That David Bell, the defendant's testator, had considerable
dealings with the mercantile house of Alexander Spiers, John Bowman
& Co. (of which house the plaintiff was surviving partner) in
the then colony of Virginia, by their factors who resided in that
colony, and on 14 March, 1768, gave his bond to the company for
�633 8s. 11d. 1/2, conditioned for the payment of �316 14s. 5d. 3/4
on demand. That he also became further indebted in a balance of
�121 Os. 4d. 1/2, an open account for dealings afterwards had with
the company by their said factors. That on 21 August, 1773, Henry
Bell, the defendant, made his writing, or promissory note, under
his hand, attested by two witnesses, in the following words,
to-wit:"
" I do hereby acknowledge myself to stand as security to Messrs.
Alexander Spiers, John Bowman & Co. of Glasgow, for the sum of
four hundred and thirty seven pounds, fourteen shillings and
ten-pence, current money of Virginia, being a debt due them by my
father, David Bell. Given under my hand, this twenty-first day of
August, one thousand seven hundred and seventy-three. I am not to
pay the above till it is convenient. "
Page 7 U. S. 455
"That the said Alexander Spiers, John Bowman & Co. were, at
that time, British subjects, merchants, residents in Glasgow, in
the Kingdom of Great Britain, and have never been resident within
the limits of the then Colony, now State of Virginia, and that
James Hopkirk, the surviving partner, now is and always has been
from the time of his birth, a British subject, resident in the
Kingdom of Great Britain, and was never within the limits of the
Commonwealth of Virginia. That the company had a factor or factors
resident in the Commonwealth of Virginia on 21 August, 1773, when
the note was given, and from that time to the commencement of the
American war,
viz., on or about the first of September,
1776. That the company had neither agent or factor in this country,
authorized to collect their debts, from the commencement of the war
in 1776, until the year 1784. That on or about 10 September, 1784,
and ever since, an agent has resided in this commonwealth,
authorized by power of attorney, generally to collect all debts due
to the company in this commonwealth."
"That by the fourth article of the definitive treaty of peace
between the United States and his Britannic Majesty, made 3
September, 1782, 'it is agreed that creditors on either side shall
meet with no lawful impediment to the recovery of the full value,
in sterling money, of all
bona fide debts heretofore
contracted.' And by the second article of the convention between
his Britannic Majesty and the United States, made on 8 January,
1802, 'the said fourth article,' (of the treaty of peace) 'so far
as respects its future operation, is recognized, confirmed, and
declared to be binding and obligatory,' 'and the same shall be
accordingly observed with punctuality and good faith, and so as
that the said creditors shall hereafter meet with no lawful
impediment to the recovery of the full value in sterling money, of
their
bona fide debts.'"
"That by the acts of the Virginia assembly, passed on the
________ and the practice of the courts, British creditors, their
agents, and factors, were prevented from suing with effect for
their debts in the courts of this commonwealth, from the __
Page 7 U. S. 456
day of April, 1774, until the year 1790, and that this suit was
commenced on 4 Jan., 1803."
By the fourth section of the Virginia act of limitations, p.
107, actions upon the case on accounts are to be brought within
five years after cause of action. By the twelfth section, there is
a saving of persons beyond seas, but by the thirteenth section it
is provided
"that all suits hereafter brought in the name or names of any
person or persons residing beyond the seas, or out of this country,
for the recovery of any debt due for goods actually sold and
delivered here, by his or their factor or factors, shall be
commenced and prosecuted within the time appointed and limited by
this act for bringing the like suits, and not after,
notwithstanding the saving hereinbefore contained, to persons
beyond the seas at the times their causes of action accrued. "
Page 7 U. S. 458
The Court ordered the following opinion to be certified to the
circuit court:
"Upon the question in this case referred to this Court from the
circuit court, it is considered by this Court that the said act of
limitations is not a bar to the plaintiff's demand on the said
note, and this Court is of opinion that the length of time from the
giving the note to the commencement of the war in 1775 not being
sufficient to bar the demand on the said note, according to the
said act of assembly, the treaty of peace between Great Britain and
the United States of 1783 does not admit of adding the time
previous to the war, to any time subsequent to the treaty, in order
to make a bar, and is also of opinion that the agent merely for
collecting debts, mentioned and described in the said state of
facts, is not to be considered as a factor within the meaning of
the said act of assembly, so as to bring the case within the
proviso of said act."
By this the Court is not to be understood as giving an opinion
on the construction of the note as to the time of payment.
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