Gillingham v. Gillingham

The opinion of the court was delivered by Coulter, J. This case is ruled by Kyle and Wells, decided at this term, the opinion in which case was foreshadowed by dictums in Walton v. Morgan, 4 Barr, and in Christy v. Flemington, 10 Barr 129, and which establishes definitively and distinctly, that a promise, to take the case out of the statute of limitations, must be made to the plaintiff or his agent. But the alleged promise, which in fact was no promise to the plaintiff or to any one in his behalf, but a mere statement by the defendant to his friend, was too vague and uncertain, even if made to the plaintiff or his agent, to take the case out of the statute. Defendant stated that he had got the money, but that it never belonged to plaintiff, but to another person whom he named, and that he intended to pay it. But it was entirely equivocal to whom he intended to pay it. Indeed, the whole of his conversation and the whole of the res gesta would seem to indicate that he meant to pay it to the person to whom it really and justly belonged. Judgment reversed and venire de novo awarded.