
    Cocks vs. Weeks.
    An acknowledgment which will take a case out of the statute of limitations must he explicit and unconditional; any suggestion which qualifies it, or repels the idea of a promise to pay, destroys the effect of what is said. Per Beardsley, J.
    
    Where the proof was that the defendant said the demand ought to have been paid before, and that he would pay it as soon as he conveniently could; held, not sufficient to warrant the jury in finding of an unqualified promise.
    Assumpsit, tried at the New-York circuit in March, 1844, before Kent, C. Judge. The action was brought to recover the amount of a promissory note made by the defendant, bearing date the 19th of June, 1832, and payable to the plaintiff or bearer on the 1st of May, 1833. The declaration contained the common money counts. Plea, actio non accredit infra sex an-nos, to which the plaintiff replied a promise within six years See. On the trial, after the note was duly proved, the plaintiff called one Daniel Cock as a witness, who swore that in July, 1840, before the commencement of this suit, he called on the defendant and asked him when he would pay the note; that the defendant replied he would pay it as soon as he conveniently could, adding, that it ought to have been paid before, and that he had mentioned to his wife to lessen his expenses with a view of meeting it. The defendant contended that this testimony was not sufficient to maintain the replication, but the circuit judge held otherwise, and charged the jury that the plaintiff had proved enough to entitle him to a verdict. A verdict was found in favor of the plaintiff for the amount of the note, and the defendant now moved for a new trial on a bill of exceptions.
    
      H. M. Western, for the defendant.
    
      H. G. Onderdonk, for the plaintiff.
   By the Court,

Beardsley, J.

The promise. proved by the plaintiff was conditional. The defendant said he would pay the note “as soon as he conveniently could.” This is equivalent to an engagement to pay when able; such being what the words fairly import. It is well settled that, in order to make a promise of this kind effective, the defendant’s ability to pay must be shown. (Davies v. Smith, 4 Esp. Rep. 36; Dean v. Hewit, 5 Wend. 257; Allen v. Webster, 15 id. 284; Turner v. Smart, 6 Barn. & Cress. 603; Ayter v. Bolt. 4 Bing. 105; Bell v. Morrison, 1 Peters' Rep. 371, 2.) No attempt was made to show the defendant’s ability to pay, or that'.he had property of the value of a cent; and proof of the promise alone was not enough to make out the plaintiff’s case.

But an acknowledgment will sometimes authorize a jury to find a promise to pay. The acknowledgment, however, must be" explicit and unconditional; and any suggestion which qualifies it, or repels the idea of a promise to pay, destroys the effect of what is said. (Purdy v. Austin, 3 Wend. 190; Sands v. Gelston, 15 Johns. Rep. 511; Wetzell v. Bussard, 11 Wheat. 309; Allen v. Webster, 15 Wend, 284; Haydon v. Williams, 7 Bing. 163; Moore v. The Bank of Columbia, 6 Peters' Rep. 86; Chitty On Cont. 821, 5th Am. ed.) The acknowledgment in the present case' was accompanied by a conditional promise to pay, which repels the idea that the party intended to make an absolute engagement. I think the evidence was insufficient to support the replication.

New trial granted.  