[Phillips v. Gregg.]

was designed for the honest purpose to which it was afterwards applied. It may have been that, at the time of the conveyance, John was not indebted to his father in the whole amount of the account, but there were debts then owing, and for which the father became responsible, and afterwards paid. If, then, this was intended as a gift by the father to his sons, it was an advancement to them, at the time of the application, to an amount equal to the sum, viz: seven shillings and six pence, actually paid by the father. The subsequent rise in the value of the property, caused by the improved condition of the country, cannot be taken into the account. The rule is to charge the child with the value of the thing at the time of the gift, and no better rule can be established to ascertain that value, than the amount which the parent has actually paid on account of the purchase. If a parent purchase land in the name of the son, and pay only part of the purchase-money, it will not be pretended that the son is bound to bring into hotch-pot more than the amount paid, whatever artificial or real value the land may have obtained at the time of the death of the parent.

As to the statute of limitations. In the charge of the court to the jury there is no error, nor in truth is there any error assigned; although the counsel, in the argument, took exception to part of the charge. In those exceptions he has totally failed. The law on this point is so well settled, that it would be a waste of time to examine particularly all the positions laid down by the court.

Judgment affirmed.

Magee against Magee.

An acknowledgment such as will relieve a demand from the operation of the statute of limitations, must be so precise and distinct in its extent and form as to preclude hesitation about the meaning of the party making it.

ERROR to the district court of Allegheny county.

Cornelius Darrah, administrator of Samuel Magee against William Pentland, administrator of Christopher Magee. This was an action of assumpsit, in which the defendant pleaded "non assumpsit infra sex annos," and the only question which arose in the cause, was whether the acknowledgments made by the defendant's intestate in his life-time, were such as to relieve the plaintiff's demand from the operation of the statute of limitations. The testimony on this point and also the opinion of the court below are transcribed into the opinion of this court.

[Magee v. Magce.]

Black and Biddle, for plaintiff in error, cited 1 Wheat. Selw. 142; 6 Watts 220; 1 Wheat. 360; 3 Wash. C. C. Rep. 407; 1 Peters 360.

Wilkins, for defendant in error, cited 3 Penn. Rep. 179; 6 Watts 45, 219.

The opinion of the court was delivered by

HOUSTON, J.-I premise, that after judicial decisions in England, the statute of limitations on simple contracts, had become useless or worse. These decisions, having been too implicitly followed in this country, the courts in this state, began more than thirty years ago, to retrace their steps. Perhaps it might have been better at once to have gone back to the original decisions, and the plain meaning of the act and said, it embraced all simple contracts more than six years old, but that the debtor might nevertheless create a new debt by an express promise to pay a specific sum. A regard for opinions and usage in common affairs, founded on former decisions, however, induced those who preceded us to proceed gradually.

I shall not trace the progress of the decisions by citing every case, but refer only to a few of the last.

It is not sufficient to take a case out of the statute, that it should be proved and acknowledged that a debt was originally due. The acknowledgment must go to the fact that it is still due. Gallagher v. Milligan, 3 Penn. Rep. 177. In Hogan v. Bear, 5 Watts 111, in a verbal discussion before a justice, the defendant acknowledged the plaintiff's demand to be still due, but also asserted that another person ought to pay it, and ended in pleading the statute; it was held not to be such an admission as deprived the defendant of the protection of the act. The whole opinion of the chief justice in that case is referred to; it is not easy to epitomize it, without lessening its force. "To avoid the uncertainty and insensible encroachments on the statute that would ensue, did we attempt to shape our course as to this statute by former decisions, we may require the acknowledgment of the demand and debt to be so precise and distinct in its extent and form as to preclude hesitation." Birghaus v. Calhoun, 6 Watts 220.

To these I shall add a case from the supreme court of the United States. Though it is on the statute of Kentucky, yet that statute, as ours is, is founded on the British, and differs only in making five years the period of limitation instead of six years. The case also shows that the supreme court of that state are governed in their decisions by the saine views which have been adopted here.

The case of Bell et al. v. Morrison et al., 1 Peters 387, is the one referred to. The amount in dispute was large. The counsel was most able-and it was carried to the highest court; the reasoning of the court is not easily answered. Bell & Co. had furnished

[Magce v. Magee.]

iron of various descriptions to a large amount to the defendants, a company for manufacturing salt; at the end of five years a large debt remained due. There was proof, by witnesses and from their own letters, of admissions that the debt was unpaid to some amount, and there was proof that within a year of the time of commencing the suit, Morrison said, "he would settle the account if he had the books;" again, "I know we are owing you and I am anxious it should be settled." That at length Morrison said, "I am growing old and wish to be done with it, and proposed to give the plaintiff seven thousand dollars and close the business." That no account or papers were produced or shown; both the witnesses understood the conversation related to the balance of an account for iron and castings furnished. The circuit court decided, that the proof did not take the case out of the statute of limitations; this was affirmed in the supreme court. The court say, (page 360) "parol evidence may be offered of confessions (a species of evidence, as has been often observed, is hard to disprove and easy to fabricate) applicable to such remote times as may have no means to trace the nature, extent or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further and admit that loose and general expressions, from which a probable or possible inference may be deduced of the acknowledgment of a debt, by a court or jury, that as the language of some cases has been, that any admission of an unsettled account, without any specification of the amount or balance, and however undeterminate and casual, are yet sufficient to take the case out of the statute of limitations, and let in evidence tending to establish any debt however large, or at whatever distance of time, it is easy to perceive, that the wholesome objects of the statute may be in a great measure defeated and the statute virtually repealed;" and again in page 362, "If the expression be vague, equivocal, and indeterminate leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways, we think they ought not to go to the jury as evidence of a new promise to revive the cause of action. Any other course would open out the mischiefs against which the statute was intended to guard innocent persons, and expose them to the danger of being entrapped in ceaseless conversations, and betrayed by perjuries."

The court then admit that some just claims may be lost, but say that many unfounded recoveries will be prevented. The statute must have the effect intended, and no plaintiff can lose except one who neglects its provisions.

The court then come to the particulars-"and the. words of Morrison, 'we know we are owing you,'-but he had not the books and could not settle-and they say (page 366), " if this evidence stood alone, it would be too loose to prove anything. The language would be equally true, whether the debt was one dollar or 10,000 dollars. It is indispensable that the plaintiff should go fur

[Magee v. Magee.]

ther and establish, by independent evidence, the amount of the balance due him, before there can arise any promise to pay it as a subsisting debt. The acknowledgment of the party then does not constitute the sole ground of the new promise; it requires new intrinsic aid before it can possess legal certainty. Now if this be so, does it not let in the whole mischief intended to be guarded against by the statute?-does it not enable the party to bring forward stale documents after a lapse of time when the proper evidence of the real state of the transaction cannot be produced?-does it not tend to encourage perjury by removing the bar upon slight acknowledgments of an indeterminate nature?-can an admission that something is due or some balance owing, be justly construed into a promise to pay any debt or balance which the party may prove before a jury?"

It then admits that an express promise to pay an express sum, or to pay, perhaps, whatever may be due on a settlement, may dispense with the statute: and after referring to some Kentucky decisions, proceeds to consider the offer to pay 7000 dollars to close the business; and this is disposed of, as an offer of compromise made to end the business, and they apply the principle, that such an offer does not bind unless accepted. I should have doubted this part of the case, and the application of this principle to it, and so it seems did that court, for they give another reason. The partnership of Morrison & Co. had been dissolved some years before this offer, and though each of the partners had made acknowledgments, Morrison alone had made this offer, and whatever effect it might have had if he had been sole defendant, yet clearly it would not bind those who had been, but were not then his partners; and the suit was against all.

I have cited this case more at large because of the great weight of the court, then composed of very distinguished men-both on account of their learning and experience, and because it comes to the same conclusion as this court, as expressed by the chief justice before cited; it requires "the acknowledgment of the demand to be so precise and distinct in its extent and form as to preclude hesitation."

It has been the practice in this state, and sanctioned by this court, to receive testimony of indebtedness, at a period long before six years prior to commencing a suit, and if nothing is proved to take the case out of the statute, to direct the jury to disregard the evidence given. In cases where the defendant has pleaded non assumpsit infra sex annos, proof of indebtedness prior to that time, may be merely misspending the time of the court, or it may be involving the court with the jury. As it seems to be settled that whether testimony will, if believed, exempt a case from the operation of the statute, it would be in many respects better and more consistent with principle, to require this proof, which is to defeat the operation of the statute in the first instance, and if decided by the court

[Magee v. Magee.]

to be insufficient, to stop all further testimony. This case was however tried on the old practice.

The first witness knew nothing prior to 1827; he says, " Samuel was a good dyer-can not say whether Samuel worked regularly or was a steady hand-he was intemperate-can not say how often I saw him at work-from six to nine dollars were wages for a man who worked steady all the week; dyeing is an important part of the business, and he and all the witnesses stated, that when begun it must be constantly attended to, from 26 to 33 hours.

The next witness commenced his knowledge in 1829-" It was a rule with Samuel to keep sober during the time of colouring-a hand always with him-sometimes took a frolic after colouringnever considered him a habitual drunkard-has been perfectly steady three months at a time-his frolic would last a day or a week at a time-do not remember of more than a week." The last witness stated, that he acted as foreman in weighing out work; was employed in pulling and cutting fur-sometimes when drinking would work at these things.

The next witness commenced in 1826-same as the formernever neglected in colouring-attentive and skilful at that-coloured once in 10 days or once in two weeks-witness as a journeyman made sometimes eight and 10 dollars a week, sometimes more and sometimes less.

All these and the next witness stated, that Christopher paid five dollars a week to Samuel's family-this regularly-that Mrs Magee was prudent and industrious, and the money always sent to herhad heard Samuel complain that the money was not given to himthat Christopher also laid in the coal for Samuel's family.

All the witnesses also proved that trimming the hats was done by Samuel's wife and daughters-trimming price one dollar per dozen. No witness knew of any business done by or any support of the family except through Christopher Magee.

The next witness was C. L. Magee, son of Samuel, and who had assigned his interest to the administrator, for his mother and sisters; he became an apprentice in 1822, and so continued till 1829-and he says his father worked for his uncle as far back as he can remember-he says the wages formerly were seven, eight or nine dollars per week-he did not earn that all the time he was irregular.

I shall copy the rest of his testimony.-" In the spring of 1831, Christopher Magee and my father were at me to go into partnership-he took an inventory of the stock, it amounted to something over 2200 dollars. My uncle observed that nearly cancelled his debt with my father. At that time he had concluded to go out of business in a year; he said the 2200 dollars would about cancel his debt to my father, but on the partnership books the amount of stock was placed to my uncle's credit-and the amount due me as journeyman for wages went to my credit-275 dollars-what induced me