Wm. H. Sothoron vs. Wm. G. Hardy, 8 G. & J. 133

Archer, Judge, delivered the opinion of the court. If, as we suppose from the bill of exception, the parties went to trial upon the admission of the truth of the facts contained in the deposition of William B. Stone, it is remarkable that any question should have been raised as to the sufficiency of the evidence, to take the case out of the statute of limitations; because that contains an express and unequivocal promise to pay. But standing alone on the proof furnished by the evidence of Thomas Marshall, we think the court were right in the opinion they expressed.

The acknowledgment as proved by this witness is in substance, identical with the acknowledgment in 5 Gill and John. 499, except in that case the defendants promised payment, if the account was correct, and it was held to be a conditional promise to pay, and that the plaintiff was bound to prove the account before he could avail himself of the promise. Had the plaintiff in that case established the account by proof, and thereby complied with the condition, the court distinctly intimate, he might have availed himself of the declaration as an acknowledgment to take the case out of the statute.

We are of opinion, throwing the acknowledgment contained in the affidavit of William B. Stone, out of the case; that the opinion of the court may be well sustained on the proof of Thomas Marshall; the doctrine in the case adverted to governing this. JUDGMENT AFFIRMED.