W. Comer Petheram, C.J.
1. I think that this appeal must be allowed, and my conclusion is based upon the simple ground that the defendant has not proved the plea of limitation which he set up. It is a well known rule that if a defendant sets up the defence of limitation, he must plead it, and show that the claim is barred. No doubt, if when the plaintiff proves his case, it appears from the facts that the debt accrued at a date earlier than the period of limitation, and the defendant has set up the plea of limitation, in that case the defendant will be entitled to judgment; that is to say, he will be entitled to take advantage of the plaintiff's evidence that the claim is barred, when he has given notice that such a defence will be made. That, however, is not the state of things existing in this case. The facts are, that in 1864, the defendant entered into a bond with the plaintiff, and covenanted to pay a large sum of money by yearly instalments, and one term of the agreement was that receipts or memoranda of payments should be indorsed upon the bond, which, of course, remained in the possession of the creditor. The plaintiff now sues for the money which he says is due to him. He puts in the bond, and says that he does not claim for the whole amount but gives credit for certain payments. The bond shows what would be due if these instalments had been paid, and shows upon its face the indorsements of these payments. The defendant met this case with no evidence whatever. His case now is that the later instalments were never paid, and that therefore the debt became due at an earlier date than that alleged by the plaintiff. But in support of this he adduces no evidence. The only question therefore is, whether the plaintiff's evidence shows that the debt accrued at a date earlier than the limitation period. I am of opinion that it does not show this, and therefore, the defendant not having proved it, and it not having been proved for him by the plaintiff's evidence, and the plaintiff's claim having been admitted on every other point except that of limitation, the appeal must be allowed with costs.
2. I concur in the order passed by the learned Chief Justice and upon the same grounds.