¶1The opinion of the court was delivered by
¶2On the trial of this case in the County Court, several questions were raised, but we do not find it necessary to decide but a small portion of them.
¶3The plaintiff, on the trial, claimed the right to give in evidence the statements or declarations of Samuel Buck. As these declarations are not ■prima facie admissible, it was incumbent upon the plaintiff to show enough to take them out of the ordinary rule, otherwise there would be error in admitting them. The case only shows that at a proceeding in chancery, to foreclose the mortgage of Heartt against Samuel Buck, one of the defendants was present before the master, as a witness, and that in his presence, Samuel Buck, a party to the proceeding, made certain statements, tending to show, that the money in question in this suit, came to the defendants’ hands, and that the statements were not denied by the defendant, then present, but he remained silent. It does not appear that the statements were directed by Samuel Buck .to the defendant, who was then present, as a witness, but the fair intendment from the case is, that what he said was in a judicial proceeding, and in relation to the matter then in controversy. The offer was, to prove' that, at the hearing before the master, Samuel Buck, a party to the proceeding, made certain statements, &c.; and one of the specific objections was, that the statements were made in a judicial proceeding. We think it is quite clear, that enough was not shown, to make the declarations of Samuel Buck, evidence *580against these defendants, even if both, had been present, which perhaps upon common principles, might not be necessary.
¶4The statements being in a judicial proceeding, and not directed to the defendant, who was then present, could not call for a denial, and indeed it would have been quite irregular for him, who stood as a stranger to those proceedings, to have interfered and denied any statements which may have been made to the Master, by either party. Certainly, no inference should be made against him for not doing it. See Melen v. Andrews 22 E. C. L. 329. In this State, the cases have gone great length, in -excluding the declarations of ,a third person, unless made under such circumstances as to call for a reply. There was, we think, error, as the case is made up, in submitting to the jury the declarations of Samuel Buck, as a part of the evidence.
¶5The court charged the jury, “that if the evidence was. sufficient to satisfy them, that there was an original indebtedness on the part of the defendants, it would also be sufficient to take the case out .of the .statute of limitations.” We think it must at once be conceded,, that this is an unsound proposition. The defendants might in the most explicit terms have admitted the debt, as once existing against them personally, and at the same time declared they would never pay it, for the very reason that the statute had run upon it. It is quite possible that there is some omission in the case; and if we could see from the hill of exceptions, that the defendants were not on the whole, prejudiced in their rights by this portion of the charge, we should not grant a new trial Though the evidence of the original indebtedness consisted of declarations made within six years before the action was brought; and though the jury have found an original liability against the defendants, yet it is a non sequitur, that the statute bar has been thereby removed, or that the evidence was sufficient for that purpose.
¶6To remove the statute bai”, there must not only be an acknowledgment of a subsisting debt; but it must, under our decisions, not be accompanied with an unwillingness to pay it If so, there can he no implied promise to pay it, which at least, is now held necessary. The great question on the trial, seemed to be, whether Samuel Buck was the original debtor, or these defendants; and certainly, the declarations of the defendants, which were resorted to by the plaintiff, as a medium of proof, might have had some tendency to *581prove that the estate of Samuel Buck was the debtor. The declarations may be more or less equivocal; and though the jury may have found that the defendants were the original debtors, yet they might upon a correct charge have negated any intention, on the part of the defendants, to have remained liable for the debt. The testimony, at least, must be considered equivocal on this point; and we cannot, as matter of law, say that what is sufficient to prove one, will prove the other.
¶7Without considering any other point in the case, the judgment of the County Court is reversed, and the cause remanded for a new trial.