
    Newton against Galbraith.
    Where a pro missory note was given payatoTe‘ (kiivcrcd at the1 maker's the note" yjeañed^pay16 an,<l ea that lie had. hay in his barn, ready to be delivcral on the day to the plaintiff but did notshovf Ihc (quantity or value; it was held, that there was no proof of a tender er payment.
    ON certiorari from a justice’s court. Galbraith sued . Nezuton before the justice, on two promissory notes, signed by Newton; the one for 10 dollars, payable on the 11 tli of December, 1807, in produce, to be delivered at Newton's house ; and the other for 10 dollars, payable on the 11th December, 1808, in produce, to be delivered at Nevoton's house, in Jericho. The defendant ’ v pleaded payment: and on the trial he proved, that on A \ the 11th December, 1807, he had hay in his barn, and was ' there ready to pay in hay, though he did not prove the quantity, and that the plaintiff did not come; and proved also, that he had hay ready, &c. on the 12th December, 1808. The plaintiff proved that he had one load of hay, after the first note fell due, and another load after-wards, but the defendant refused him any more; and that the common price of hay was 6 dollars per ton. The justice gave his judgment for the plaintiff, for the amount of the notes, after deducting the hay received»
   Per Curiam.

There was no tender proved by defendant, sufficient to exonerate him from the payment of the balance due on the notes. A declaration that there was hay in his barn, or in stack for the plaintiff, without ascertaining the amount and value, was nothing. The judgment must be affirmed.

Judgment affirmed»  