The opinion of the court was delivered by Bennett, J. The plaintiff in this case relied upon a new promise to avoid a plea of bankruptcy; and the evidence showed a promise to pay when the defendant was of sufficient ability. The referee finds that the defendant was poor at the time he made the promise, and was not of sufficient ability, from that time up to the commencement of the suit. The promise being conditional, it most clearly can be of no avail until thé condition is complied with. His being of sufficient ability to pay is a condition precedent.
We see no objection to any of the decisions of the referee in regard to the admission of evidence, or as to its effect. The judgment of the county court is affirmed.