McClelland's v. West

The opinion of the court was delivered, January 4th 1869, by Read, J. “ The acknowledgment of a debt,” says Chief Justice Gibson in a per curiam opinion in Gilkinson v. Lowry, 6 W. & S. 217, “ is evidence of a promise; but it ought to be plain, unambiguous, express and so distinct and palpable in its extent and form as to preclude hesitation.” It must be an express acknowledgment of a subsisting debt. Nothing but an unequivocal admission of indebtedness is such evidence of a promise to pay as will take a case out of the operation of the Statute of Limitations. The last case of Weaver v. Weaver, 4 P. F. Smith 152, in which the opinion was delivered by the present Chief Justice, distinctly affirms these propositions, and decides in conformity to the case of Emerson v. Miller, 3 Casey 278, that the word “ settle” was not sufficient in that case from which to imply an acknowledgment of the debt and a promise to pay it. So in the case before us the bill for lumber is dated November 6th 1849; it foots up $25.64, and at the end is written:— “ The above bill was delivered at J. A. Langston’s. Interest to August 1864 .....$48.33 Below is written “I agree to settle this bill with Enos West. 1864. J. P. McClelland.” This is clearly not a promise to pay, nor.is the word settle sufficient from which to imply an acknowledgment of the debt. It is an agreement to adjust, and supposes examination and inquiry into the bill and the accounts between the parties. It would turn back the current of our decisions, to hold that there was an express acknowledgment of a subsisting debt. Judgment reversed.