The plaintiff sues upon a memorandum dated June 28, 1839, which he alleges was so dated instead of January, 1839, either by mistake or design, by which the defendant promises to pay him $2000, two years after date. • The petition was filed on the 28th January, 1841.

The defendant, after setting up an exception which was overruled, pleaded to the merits. He alleges, that the plaintiff is not in possession of the obligation sued on, nor is he authorized by any person in possession of it to bring suit; but that the plaintiff had previously transferred said memorandum to the Exchange and Banking Company. He next sets forth a species of partnership between himself and the plaintiff in relation to the purchase *434ánd sale of lands, in consideration of which the memorandum was given, which, however, it is not necessary now to detail, inasmuch as the cause was decided in the court below upon other grounds.

Brenan, the cashier of the Exchange Bank, being served with a subpoena duces tecum, produced the memorandum, and at the same time intervened on the part of the Bank, and claimed the note as its property by endorsement, denying the plaintiff's right to sue for the same.

There was judgment of nonsuit, and' the plaintiff has appealed.

There is no evidence in the record that the memorandum was by mistake dated in June instead of January, and consequently the same was not due when this suit was brought. The court, therefore, did not err in giving a judgment of nonsuit.

Judgment affirmed.