Lawrence v. Mangum , 30 Miss. 171 ( 1855 )

FisheR, J.,

delivered the opinion of the court.

The defendant in error brought a suit against the plaintiff in error, as administrator of the estate of Richard Coleman, deceased, in the Circuit Court of Tallahatchie county.

The Statute of Limitations was relied on as a defence, and a subsequent promise or acknowledgment of the justice of the debt by the intestate in his lifetime, was relied on by the-plaintiff below to take the case out of the operation of the statute.

It will be sufficient, without noticing specially the instructions of the court below, to notice the testimony of the plaintiff below. It in few words amounts to this: Coleman, in 1839, or 1840, was indebted to the plaintiff in the sum of $1500. Certain claims were transferred in payment, or for the purpose of securing this debt. Perhaps the proof would justify the belief that they were taken only as collateral security. The plaintiff failed to collect, according to the proof, part of these claims. Coleman, in 1853, went to the house of the plaintiff, who was at the time sick, for the purpose of making a settlement, and admitted that he owed the plaintiff a balance on account of the above transaction. No sum constituting this balance, was named, nor was any note or account at the time exhibited to Coleman.

It is almost impossible to mistake the meaning of the statute on this subject. The promise must either be in writing, and signed by the party to be charged, or the very claim sued on, must, upon a presentation of it to the debtor, be by him acknowledged to be due and unpaid. Hutch. Code, 832, § 16.

The question is, was this “very claim” presented to Coleman, and did he acknowledge it to be due and unpaid ? There is no such proof in the record. He might very well have admitted that he owed the plaintiff a balance, which balance he, the debtor, was ready to ascertain according to his own views of the transaction, and at the same time have refused to admit the correctness of a balance, as ascertained by the plaintiff. Has the plaintiff recovered a verdict for the very debt which Coleman admitted to be due and unpaid ? No such conclusion can be deduced from the testimony. He admitted no specified amount to be due; and a recovery can be had for no greater sum than was covered by his admission.

Judgment reversed, and new trial granted.