*358The opinion of the court was delivered January 7th 1884 by
Chief Justice Mercur.This suit was brought on a note, more than six years after it became due. The right to recover therefore rested on the ability of the plaintiff below to establish an express promise within the six years or such an acknowledgment as is clearly consistent with a promise to pay.
The acknowledgment necessary to remove the bar of the statute was fully considered in the recent cases of Palmer v. Gillespie, 14 Norris 340; and Wesner v. Stein & Greenawalt, 1 Out. 322. It must be clear, distinct and unequivocal not only as to the existence of a debt; but of the particular debt to which it is sought to be applied.
There is no merit in the first or second specifications of error. They were not urged on the argument. The third specification is to the court having instructed the jury to find in favor of the plaintiff below for the amount of his claim. The only contention therefore now is whether the case should have been taken from the jury.
The parties were the only witnesses. Each testified in his own behalf, and to two conversations. The first was on the 26th of June 1876, the other sometime in July following. McCartney testified that the first was just before he went, to Kansas, that Lawson promised to pay the note when witness returned; that he was absent about four weeks, and then saw Lawson, who said he would pay but could not do it then. On cross-examination, he testified that in the talk about going to Kansas, Lawson said he would have the money ready for him on his return. On the return of witness, he found Lawson had closed his doors, but the latter said “ he would pay me, but could not pay me now.”
Lawson testified that at “ this first conversation in June, he did'not promise to pay the debtbut told him “I wished I could pay him all I owed him.” Witness further said, “in the first conversation, he wanted me to promise to pay him. He may have thought I would, I said I was sorry I could not pay him all I owed him, I admitted I owed it.” Lawson filed a petition in bankruptcy during the absence of McCartney. After his return, Lawson further testified, “ he wanted me to secure him in some way. I told him I could not, I had filed my petition in bankruptcy. I told him if he would let this go on, I would do the best I could to pay him.” He further said, “ he did not show me the note. I knew it, I never disputed the debt.”
Thus, it appears, the evidence as to whether there was- any express promise to pay, is in direct conflict. It is very clear that question could not be taken from the jury.
*359The other question relates to the sufficiency of the admission of the debtor to justify the court in holding as matter of law, that it tolled the statute. Are the admissions of the debtor that he owed the debt, with a wish he could pay him, and the expression of regret that he could not, and no promise to pay, all considered together, sufficient to justify the positive instructions of the court ? We think they are not.
When a claim to recover a debt, barred by the statute, rests on the admission of the indebtedness, the acknowledgment thereof must be unqualified. It must be consistent with a promise to pay on demand. It must not be accompanied by such other expressions as indicate a willingness to pay at some future time: Kensington Bank v. Patton, 2 Harris 479. No implication less than this will toll the statute. The language should be so clear, as to preclude hesitation as to the debtor’s meaning.
In the present case, the whole evidence did not authorize the court to declare as matter of law, a right to recover on the admission. The case should have been submitted to the jury, under proper instructions, to find what language was used, and whether it came up to the requirements of the law.
Judgment reversed and a venire facias de novo awarded.