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STOWELL v. FOWLER.

In assumpsit on a claim barred by the statute of limitations, evidence that the defendant said he had no money; that he would settle when he should get the money; that he would not promise any time when he would pay; that he expected his mother would die, and if she should he would settle up the matter, — is not sufficient to take the case out of the statute, without proof of the defendant's ability to pay.

SMITH, J.

To entitle the plaintiff to recover, he must prove a direct and unqualified admission of a previous subsisting debt which the defendant was liable and willing to pay. Ventris v. Shaw, 14 N.H. 422. If the evidence shows an undertaking to pay, it was to pay as soon as the defendant should be in funds. His promise was not contingent upon the death of his mother, but that event was one occasion when he expected to be in funds. There was no evidence that the defendant subsequently had money from which he might have settled this claim. The promise was, to "settle when he should get the money." The motion for a nonsuit should have been granted. Exter Bank v. Sullivan, 6 N.H. 124, 132, 135, 136; Butterfield v. Jacobs, 15 N.H. 140; Weare v. Chase, 58 N.H. 225; Dodge v. Leavitt, ante 245; 3 Par. Cont. 70.

Exceptions sustained.

FOSTER, J., did not sit: the others concurred.

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STOWELL v. FOWLER
(Jun 1, 1880)