Smith v. Edgeworth , 85 Mass. 233 ( 1861 )

Dewey, J.

It was erroneous to rule that in the case stated the burden of proof was upon the defendant to show that the note was indorsed and transferred after maturity, and that if he did not so prove he could not give evidence that it was given for spirituous and intoxicating liquors. Under the decisions of this court, the general burden, in case it is shown that a note was given on an illegal consideration, or was procured by fraud, is upon an indorsee to show that the note was indorsed to him before maturity, and upon a valuable consideration. Tucker v. Morrill, 1 Allen, 528. The fact that an indorsement is without date, in the absence of any controlling evidence, is sufficient to sustain this burden, until it is overcome by evidence tending to show the contrary; and to this extent the weight of evidence in the present case was changed, but not the burden of proof.

As to the other questions discussed at the argument, we give no opinion. The facts are not sufficiently before us to authorize it. Whether this action is brought for the benefit of the estate of C. S. Smith, the note being the property of said estate, or in fact the note was the property of the late administratrix of C. S. Smith, in her own right, and for a consideration paid by her therefor, does not distinctly appear. If the former is the fact, it would seem that any matter should be deemed a legal defence which would have been, had the note never been indorsed, and a suit had been brought thereon by the original payees. On the other hand, if this note did not belong to the estate of C. S. Smith., but had become the property of the individual who was administratrix on his estate, in her own right, for a consideration paid by her, the defence might not be open. A further question may arise in this latter case, namely, whether in an action by the administrator de bonis non of the estate of C. S. Smith, it can be treated other than as the property belonging to that estate. Upon these points we give no opinion, but suggest them as questions to be settled upon a more full report of the facts. Exceptions sustained