The opinion
WaltoN, J.
When a new promise is relied on to take a debt out of the operation of the statute of limitations, and the new promise is a conditional one, the plaintiff cannot recover unless he proves performance of the condition. Proof of the promise *315 only is not sufficient. Thus, a promise to pay "as soon as I can,” (Tanner v. Smart, 6 B. & C. 273; 9 D. & R. 549); or, "when able,” (Davies v. Smith, 4 Esp. 36) ; or, "I shall be most happy to pay you both interest and principal as soon as convenient,” (Edmunds v. Downes, 2 C. & M. 459; 4 Tyr. 173) ; or, "when oí ability,” (Scales v. Wood, 3 Bing. 648; 11 Moore, 553); or, "I will pay as soon as it is in my power to do so,” (Haydon v. Williams, 4 M. & P. 811); or, "I should be happy to pay it if I could,” (Ayton v. Bowers, 12 Moore, 305; 4 Bing. 105); or, "I am going to H. in the course of the week, and will help you to 5 l. if I can,” (Gould v. Shirley, 2 M. & P. 581); or, "If E. will say I had the timber I will pay for it,” or, "prove it by E. and I will pay for it,” (Robbins v. Otis, 1 Pick. 368 ; 3 Pick. 63 ) ; or, “I have not the means now, but will pay as soon as I can,” (Tompkins v. Brown, 1 Denio, 247 ); will not take a case out of the statute, except upon proof of performance of the condition. Proof of the promise only is not sufficient. Read v. Wilkinson, 2 Wash. C. C. 514; Lonsdale v. Brown, 3 Wash. C. C. 404 ; Kampshall v. Goodman, 6 McL. 189.
In the case now before us, the defendant’s promise was conditional. He said, " I would say now as I said before, and also told Mr. Ward, that when I was able I should most certainly settle the demand; but I am not now, nor have I been, in a condition to settle it.” Such a promise is not sufficient to take a case out of the operation of the statute of limitations, without proof of the defendant’s ability to pay. There was no such proof, and the determination of the justice of the superior.court that the evidence was sufficient to entitle the plaintiff to recover, was erroneous.
Exceptions sustained.
New trial granted.
AppletoN, C. J., YirgiN, Peters, Libbet and StmoNDS, JJ., concurred.