CHARLESTON.

#### Walker *v.*Burgess *et al.*

Submitted January 19, 1898 —

Decided March 23, 1898.

1. Statute ok *Limitations*— Retroactive *Statute.*

*A*statute changing- the period of limitation will not be applied to antecedent transactions, unless its letter or necessary intent demand a retroactive construction, (p. 400).

2. Statute of *Limitations*— Atóte—Assignee—Set-off.

An assignee of a note, suing upon it, may plead the statute of limitations against a set-off based upon a demand against the assignor, (p. 401).

*400Error to Circuit Court, Wayne County.

*Assicmpsii*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, President:

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 accounts 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, chapter 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 whenthe 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 thoug-h statutes of limitation do not destroy the rig-ht, 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.,332, (30 S. E. 100). Nothing in the new statute calls for 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. *401be may use or waive, as be pleases, and wbicb one wbo is a stranger to him, standing- in no relation of privity in estate with him, cannot use. But this Court has held that, where there is a privity between the party who could, if sued, plead the statute, and the party offering- to plead it, the latter may plead it to save his property. Such is the case with heirs, devisees, vendees, or mortgag-es. *McClaugherty*v. Croft, 43 W. Va., 270, (27 S. E. 246). An as-signee of a note is privy in estate tq the assignor as much as the alienee or vendee in sales of land; and if' a vendee of land is entitled to protect his estate against a claim against his vendor sought to be enforced, against the land, so is such assignee. Often the one owing the set-off is not a party, so as to allow him to plead; and, if the assigmee cannot plead it, his estate in the note is lost. And even when the one entitled to plead is a party, his nonaction or collusion will not be allowed to defeat his assignee’s right any more than his receipt of payment, or declaration or other act after assignment will do so. The law gives the assignee right to use the name of the assignor, whether the latter is willing or not, in a suit to recover the debt, and so it ought to allow the assignee the use of any defense against a claim which would destroy the assignee’s property in the note assigned. In *Thompson*v. *Sickles,*46 Barb. 49, cited in Wat. Set-Off, § 98, held: “In such action, brought by an assignee of the note, the plaintiff may raise the objection that a set-off against his assignor [the payee], averred in the answer, is barred by the statute of limitations. ” The statute ends the case, barring all the set-offs, and leaving the notes to justify the judgment. The judge trying the case found upon the evidence properly as facts that the set-offs could not be treated as payments, even if applicable to the notes, four of them being negotiable, and that the plaintiff was *bona fide*holder for viilue. If treated as nonnegotiable notes, the same judgment would follow. It is useless to dismiss other matters, as they would be inoperative on the judgment, and relate to matters well settled in law

*Ajfirmed.*