
    Dean against Pitts.
    ALBANY,
    Jan. 1813.
    A. was sued en by him In» “pleaded i!ie. 3tatute of limitations.
    it was proved tiro yeáríbebrou»ht^ was shown the note, and admiited that he ™¡dL that and^that^íié had sent the to “pay0 the plaintiff, and supposed it thTt^he'rauia make it aphad been paid.
    this ‘was ,a sufijc!ci>t ackqowledgmenfc to take the case out of the statute, and ‘^payment defendant,
    THIS was ail action of assumpsit, brought on two promissory notes made by the defendant and Sylvester Richmond, dated 5th November, 1793. The defendant pleaded non assumpit and the statute of limitations.
    .... On the trial, at the Rensselaer circuit, in 1811, it was proved, that about two years before, the defendant was shown the notes ánd called upon for payment. The defendant admitted that he. made the notes, and that they were given for an honest debt, but said 1,0 that they had been paid; that the defendant had sent the money to Richmond, and he supposed Richmond had paid the plaintiff; hut if Richmond had not paid the notes, the defendant said he would pay them; that he would not plead the statute of limitations, unless the money had been paid; and he thought he could make that mneir mat appear.
    The judge was of opinion, that this acknowledgment took the case out of the statute, and directed the jury to find a verdict for the plaintiff.
    A motion was made to set aside the verdict, and for a new trial; which was submitted to the court on the above case, without ar7 gument.
   Per Curiam.

The defendant admits the debt, and does not pretend he had paid it, hut supposed his partner Richmond had paid it, and he takes upon himself the'burden of proving it, for he said he thought he could make that appear. This was sufficient to take the case out of the statute, and to cast upon the defendant the necessity of proving payment; and though the court might have been induced to have looked with a very indulgent eye upon the proof of the payment which might have been produced, yet here ?!one was attempted to be produced. í

Motion denied.  