45. A new provision to pay the principal only, does not except the interest from the operation of the statute. 29 Penn. St. 189. Nor does an agreement to refer take the claim out of the statute, 1 Sneed, Tenn. 464 ; nor the insertion, by an insolvent debtor, of an outlawed elaim in a schedule of his creditors required by law, 2 Miles, Penn. 424 ; 10 Penn. St. 129 ; 7 Gray, Mass. 274 ; 12 Mete. Mass. 470 ; nor an agreemeut not to take advantage of the statute. 29 Me. 47; 17 Penn. St. 232 ; 8 Md. 374 ; 9 Leigh, Va. 381. If such an agreement were valid, it might be made part of the contract, and thus the object of the law would be defeated. 32 Me. 169. Nor will a devise of property to pay debts exempt debts upon which the statute has run prior to the testator's death 4 Edw. N. Y. 527 ; 13 Ala. x. s. 611 ; 4 Whart. Penn. 445 ; 4 Penn. St. 56 ; 13 Gratt. Va. 329.
46. Nor, in general, will any statement of a debt, made officially, in pursuance of special legal requirement, or with another purpose than to recognize it as an existing debt. 5 Me. 140 ; 12 Eng. L. & Eq. 191 ; 9 Cush. Mass. 390 ; 30 Me. 425. Nor will a deed of assignment made by the debtor for the payment of certain debts, and of his debts generally, and a partial payment by the assignor to a creditor, 1 R. I. 81 • 6 Eng. L. & Eq. 520 ; nor the entry of a debt in an unsigned schedule of the debtor's lia bilities, made for his own use, 30 Me. 425 ; nor an undelivered mortgage to secure an outlawed debt, though duly executed, acknow ledged, and recorded. 6 Cush. Mass. 151. But if the mortgage be delivered, it will be a sufficient acknowledgment to exempt the debt secured thereby from the operation of the statute. 4 Cush. Mass. 559 ; 18 Conn. 257 ; 14 Tex. 672. And so will the answer to a bill in chancery which expressly sets forth the existence of the debt. 28 Vt. 569 ; 3 Gill, Md. 166.
47. If there is any thing said to repel the inference of a promise, or inconsistent there with, the statute will not be avoided. 3 Bingh. 329 ; 6 Watts, Penn. 44; 2 Wash. C. C. 514. " The account is due, and I supposed it had been yaid, but did not know of its being ever paid, ' is no new promise. 8 Cranch, 72. lf the debtor admits that the debt is due, but intimates his purpose to avail himself of the bar of the statute, the acknowledgment is insufficient. 9 Serg. & R. Penn. 128 ; 2 Dev. & B. No. C. 82 ; 2 Browne, Penn. 35. So if he says he will pay if he owes, but denies that he owes, 3 Me. 97 ; 2 Pick. Mass. 368, or if he is liable, hut denies his liability. 2 Bail. So. C. 278. So if he states his inability to pay. 22 Pick. Mass. 291. So if he admits the claim to have been once due, but claims that it is paid by an account against the claimant, 3 Fairf. Me. 72 ; 5 Conn. 480 ; 4 M'Cord, So. C. 215 ; or otherwise. 11 Ill. 146.
"I am too unwell to settle now ; when I am better, I will settle your account:" held in sufficient. 9 Leigh, Va. 45 ; 1 Yerg. Tenn. 270. So of an offer to pay a part in order to get the claim out of the hands of the creditor, 2 Bail. So. C. 283 ; and of an admission that the account is right. 4 Dan. Ky. 505.
48. If the new promise is subject to con ditions or qualifications, is indefinite as to time or amount, or as to the debt referred to, or in any other way limited or contingent, the plaintiff will be held to bring himself strictly within the terms of the promise, tind to show that the condition has been performed, or the contingeney happened, and that he is not ex cluded by any limitation, qualification, or uncertainty. 11 Wheat. 309 ; 15 Johns. N. Y. 511 ; 1 Pet. 351 ; 3 Bingh. 638 ; 3 IIare, Ch. 299. If the promise be to pay when able, the ability must be proved by the plaintiff.
Barnew. & C. 603 ; 4 Esp. 36 ; 13 N. H.
486 ; 10 N. Y. 88 ; 7 Hill, N. Y. 45 ; 15 Ga. 395. So if it be to pay as soon as convenient, the convenience must be proved, 2 Crompt. & M. Exch. 459 ; or, " if E will say that I have had the timber," the condition must be complied with. 1 Pick. Mass. 370.
49. And if there be a promise to pay in specific articles, the plaintiff must show that he offered to accept them. 8 Johns. N. Y. 318 ; 8 Mete. Mass. 432. The vote of a town to appoint a committee to " settle the dispute" was held to he a conditional promise, re quiring, to give it force as against the statute, proof that the committee reported something due. 11 Mass. 451. If the original promise be conditional, and the new promise abso lute, the latter will not alter the former. 3 Wash. C. C. 404. But where the promise was to pay if the debtor could not prove that B had paid it, it was held that the onus was upon A to prove that B had paid it. 11 li ed. No. C. 445. The offer must be accepted alto gether or rejected altogether. 4 Leigh, Va. 603.
50. It must appear clearly that the pro mise is made with reference to the particular demand in suit, 6 Pet. 86 ; 15 Johns. N. Y. 511 ; though a general admission would seem to be sufficient, unless the defendant show that there were other demands between the parties. 421 Pick. Mass. 323. If there be uncertainty as to the amount admitted to be due, the plaintiff, on proving that something is due, may recover nominal damages, 4 Nev. & M. 337 ; 4 Younge & C. 238 ; 12 Carr. & P. 104 ; 6 N. H. 367 ; and whether evi dence aliunde may be admitted to prove the actual amount is a point upon which the most respectable authorities differ. That it may, is held in Massachusetts, 22 Pick. Mass. 291, and perhaps in Maine. 27 Me. 433. Contra, 1 Pet. 351 ; 9 Leigh, Va. 381 ; 2 Dev. & B. No. C. 390 ; 10 Watts, Penn. 172 ; 23 Penn. St. 416 ; 24 Me. 145 ; 6 Mo. 27.