Nelson v. Seayres , 2 Va. Col. Dec. 126 ( 1753 )

Case & declares that one Edw. Seayres deced. the Defts. fa’r being indebted to the Pit. in £.220. St. & ;£17 . •. 12 . . 2 Cur. the Deft on the 10. Apr. 1733. in cons, that the Pit., would trust the Defts. fa’r for more money & Goods promised to pay not only the said £220 St. & £17 . . 12 . .2. Cur. but all other Sums the Defts. father should afterwards become indebted (in case his fa’r did not pay the same) when he the Deft, should be thereunto required And avers that trusting to this promise betw. the said 10. April & last of Jan’y he lent Money & sold Goods to Defts. fa’ramount’gto £.112 . . 17. St. & ^316 . . 16 . . 6. Cur. besides the money he was before indebted & that Edw. Seayres in his life time did not pay ^221-16-4. part of the said money of which the Pit. gave notice to the Deft. May 1. '1737.

The Deft, has pleaded the Act of Lim viz that the cause of Action did not arise within 5 years The Pit. has replied that it did

It is certainly more than five years since the promise was made but the Cause of Action did not aiise on the promise The Deft, did not undertake to pay at all events but only if his fa’r'did not of which he must have notice & a request be made to him before he could be liable

The Cause of Action here could not arise till notice & request for the Deft, could not know that his fa’r had not paid till such notice & request And I think it must be agreed that if Pit. had not alledged notice & request in his Decl. he could not have maintained this Action

Notice is always necessary where the matter lies in the breast of the Pit. & not of the Deft. And if notice & request are necessary to support the Pits. Action the consequence is plain that he could have no cause of Action till such Notice & request

The Defts. undertaking in this Case is a special one To pay if his father did not The Pit. could not have brought an Action on this promise immediately nor till there was a failure by the fa’r The promise is what we call executory Something future is to happen or be done before any Cause of Action can arise

If a man promises for a val. cons, to pay a Sum of Money in case A & B are married Here the Cause óf Action cannot arise till the Marr. And tho’ the marr. be 20 yrs. after the promise the Action will lie

The Son in this Case gives the fa’r a gen’l Cred’t he becomes his Security to pay for all Goods & money the fa’r shall take or [127] receive of the Pit. No time limited when the Goods or Money shall be received Upon the faith of this promise there are dealings for 2. or 3. yrs. Surely in any view it must be allowed that the cause of Action did not arise till the end of the dealings And we have sued within 3. yrs. from that time

It is a rule that the Stat. can be no bar till the Pits, cause of Action is compleat

The dog of A. killed some of B. sheep A. promised in case B. would not sue him for the Sheep to make him a recompence upon request Several yrs. after B. did request & A. refused to pay Upon which B. brought an Action A. pleaded the Act of Lim. it being more than 6 yrs. since the promise But held not good for the cause of Action did not arise till the request Shutford vs. Borough Godb. 437. adjd. And there sayed If a promise is made to pay ;£l0. when a man marr. or comes from Rome tho’ his marr. or return be 10 yrs. after he may have his Action for the Cause of Action is not compleat nor does arise till the Marr. or return

Assumpsit in cons, that the Pit. had d’d a Deed to the Deft, he promised to redeliver it upon request & alledges a request. Deft, pleaded he did not promise within 6 yrs. & upon Dem. plea held ill because Action did not arise on the prom but on the request 1. Lev. 48. Webb vs. Martin.

Assumpsit in cons, that the Pit. at Defts. request would receive A & B. into his House as Guests & Diet them the Deft, promised &c. The Deft, pleaded he did not assume within 6 yrs. & upon Dem. held ill for it is not material when the prom was made but when the cause of Action arose 2. Sal. 422. Gould vs. Johnson

The Defts. Lawyer very well knew he could not plead Non ass. & has pleaded very properly but this case shews that where the duty arises on a cons, executory or future the Cause of Action does not arise from the prom but from the performa of what we call the meritorious cause

To apply the last Case the Action did not arise on the prom but either from the delivery of the Goods or the request

If from either of these we have sued within time

In Trover the Cause of Action does not arise on the Trover but from the Conversion And therefore if a Trover be before 6 yrs. & a Conversion afterw’ds And Action is brought within 6 yrs. after the Conversion the Stat. will not bar. Far. 99. Wortley Montague ag’st Lord Sandwich.

This Case was Compromised