Thompson v. Peter/Opinion of the Court

by John Marshall

This was a suit brought in September, 1822, on a promise alleged to have been made by the intestate of the defendant, who died in the year 1808. The defendant pleaded non assumpsit, and the statute of limitations, on which pleas issue was joined. By consent of parties a verdict was found for the plaintiff, subject to the opinion of the Court, whether the evidence which is stated in a case made by the parties, be sufficient to be left to the jury as evidence of a subsequent acknowledgment, competent to take the case out of the statute of limitations. The Court gave judgment for the defendants, which judgment is now before this Court on a writ of error.

The Court is of opinion that the Circuit Court decided rightly. The original administrator, David Peter, did not acknowledge the debt, but said there were no funds in hand to pay the debts of the testator. This language might be used by a person not intending to give any validity to the claim, and ignorant of its real merits. The conversation with one of the present defendants, George Peter, was still further from being an acknowledgment. Had this even been a suit against the original debtor, these declarations would not have been sufficient to take the case out of the statute. The cases cited from 8 Cranch's hep. 72. and 11 Wheat. Rep. 209. are expressly in point. But this is not a suit against the original debtor. It is brought against his representative, who may have no personal knowledge of the transaction. Declarations against him have never been held to take the promise of a testator or intestate out of the act. Indeed, the contrary has been held.

Judgment affirmed, with costs.

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