The evidence, which is relied on by the plaintiff to take the case out of the statute of limitations, is as follows:
"W. E. Hill heard testator say, about 1860, that he owed *Page 407 the plaintiff a considerable debt, that plaintiff was one of his largest creditors. D.C. Cobb and R. B. Hatch heard testator about the same time say the same thing. One Barfield heard the testator in October, 1858, say to the plaintiff, "I can't pay you what I owe you, but I will pay you soon, or next winter, I need what money I have now for building, and it will do you more good to get it in a lump." No definite sum was mentioned, and no account or memoranda shown, mentioned or alluded to, in the conversation."
His Honor instructed the jury that if they believed that the testator referred to the account now sued on, they should find for the plaintiff on the issue made by the plea of the statute.
In this we think his Honor erred. The rule to be gathered from the numerous cases to which we were referred by the counsel, may be thus expressed. The new promise must be definite, and show the nature and amount of the debt; or must distinctly refer to some writing, or to some other means, by which the nature and amount of it can be ascertained. Or, there must be an acknowledgment of a present subsisting debt, equally definite and certain, from which a promise to pay such debt may be implied. McBride v. Gray, Busb. 420.
In the present case there was evidence in the relations shown to have existed between the parties, from which a jury might have inferred the nature of the debt, viz: that it was for medical services, but there is nothing in the conversations given in evidence, which would enable any one to ascertain its amount.
PER CURIAM. Venire de novo. *Page 408