
    Bush against Barnard.
    where A. pro. ^t^barmV by th.e statute :»f nnutations h¡ :er« tam specific anjcles, if was held, that the promise was conditional, and that the plaintiff was bound to show that he offered, and was ready to ac-"Sept, the specific articles.
    THIS was an action of assumpsit, on two promissory notes, made by the defendant, dated at Boylston, in the state of Massachusetts, the 1st March, 1794, each for 20 7 7 7 pounds, the one payable on demand, the other in six * ’ r J 
      years. The defendant pleaded the general issue, and , r ,. . . the statute or limitations.
    The cause was tried before Mr. justice Van Ness, at the Oneida circuit, in June last.
    The notes being proved, the plaintiff, in order to show an acknowledgment of the debt, offered to prove that a short time before the commencement of the suit, the defendant, .in conversation with the plaintiff, in relation to an adjustment or compromise of the plaintiff’s demand, offered to pay him the amount of the note in specific articles. But it appearing that the witness offered had heard nothing between the parties, except what passed in a treaty for a compromise, the judge, on the objection of the defendant’s counsel, rejected the testimony, and the plaintiff submitted to a nonsuit.
    A motion was made to set aside the nonsuit, and for a new trial.
    Lynch, for the plaintiff.
    
      .Gold, contra.
   Per Curiam.

The promise which was offered to be proved was a conditional promise ; and the plaintiff was ' bound to show that he had offered, and was ready to accept, the specific articles. In the case of Davis v. Smith, (4 Esp. N. P. Cases, 36.) it was ruled that a promise to pay a debt, barred by the statute of limitations, when able, was a conditional promise, and the plaintiff ivas bound to show that the defendant was of sufficient ability to pay the debt. This case comes within the principle of that decision, and the court deny the motion on that ground, without' touching the point raised at the trial.

Motion denied.  