
    
      Oliver Towles vs. Catharine B. Williams, administratrix of Geo. Williams.
    
    Action by the ordinary, administrator of the derelict estate of the payee, on a promissory note bearing date the 3d December, 1841. It was proved that the payee died in February, and the maker in July, 1841. Held that, without further proof, the plaintiff was entitled to recover, and that, if there was a mistake as to the date, and it was essential to the defence, the onus of shewing it lay on the defendant.
    
      Before Frost, J. at Edgefield, Spring Term, 1845.
    
      Sum pro. on a note of Geo. Williams, defendant’s intestate, payable to John Coker, and dated the 3rd December, 1841 ; defence, the statute of limitations. The process was entered the 7th February, 1845. Two witnesses, one of whom had been administrator of Geo. Williams, proved the signature to the note. It was proved that the intestate died in July, 1841, and Coker, the payee, in February of the same year. The plaintiff was ordinary of the district when Coker died, and took charge of his estate, and it was supposed by one of the witnesses that the note by that means passed into his possession.
    It being impossible that the note eould have been made at the time it bore date, it was held to be incumbent on the plaintiff to shew when it was made, and that it was made and delivered in the life time of the parties, and to prove how and when he became possessed of it. For want of any proof beyond the production of the note, the plaintiff was non-suited.
    The plaintiff appealed, and now moved that the non-suit be set aside.
    
      Bauskett, for the motion.
    
      Bonham, contra.
   Curia, per Wardlaw, J.

The evidence seems to shew that the plaintiff acquired possession of the note in the course of his duty as ordinary, having charge of the derelict estate of the payee.

The genuineness of the note being undisputed, and yet both maker and payee having died before the day of the date, it is manifest that the note was posZ-dated. If this were done by design of the parties, for no purpose of fraud, it did not affect the validity of the instrument, but simply made it equivalent to a note correctly dated and made payable on the day fixed by the posZ-dating for the payment, to wit, — one day after 3d. Dec. 1841. In the case of Pasmore vs. North, 13 East, 516, this was acknowledged to be the result as to the parties to a bill of exchange so designedly posZ-dated, even by those who contended that the bill was unnegotiable before the day of the date; and the court held that there was no seeming fraud on the face of the bill, which rendered it unfit for negotiation.

If the posZ-dating were done by mistake, then, upon the mistake being shewn, the note would have become a note payable one day after the date intended. Chitty on Bills, 354.

In either view, it seems that the non-suit was improperly ordered, and that, according to the evidence adduced, the plaintiff was entitled to recover.

The note was upon its face good, and no mistake must necessarily be presumed. If the fact of a mistake was essential to the defendant’s defence, it was incumbent on him to have shewn it. If there was a mistake, and it consisted in writing 1841 for 1840, still the four years and nine months necessary for the protection of the adminis-tratrix, under the statute of limitations, had not run out before the commencement of the suit. If there was other mistake, what it was is left altogether to conjecture, and there is no ground upon which it must be presumed in such form as may serve the defendant.

The non-suit is set aside, and a new trial ordered.

RichaRDson, O’Neall, and Evans, JJ. concurred.  