Kent's Adm'rs v. Wilkinson ( 1833 )

Martin, J.

delivered the opinion of the court.

The evidence contained in the bill of exceptions, in this case, is not sufficient to take it out of the statute of limitations. It is not an acknowledgment of a subsisting debt, nor an unqualified promise to pay it. At most, it is only a promise to pay if the plaintiff prove the debt to be correct; or in substance, prove the debt, and I will pay it; accompanied with a declaration that he believed the debt was paid.

It was incumbent on the plaintiff to prove the debt, before he could avail himself of the promise, in the manner he has attempted to do in this cause. Oliver vs. Gray, 1 Harr. and Gill, 216.

The court do not mean to express an opinion, that where there are two or more administrators, the promise of one, if absolute, is sufficient to take the case out of the statute of limitations. It is not necessary to decide that point in this case, as now presented ; and not having been relied on in in the argument, has not been considered by the court.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.