
    HERVY & AL. vs. RUSSELL.
    When the plaintiff fails to make out his case, there will be judgment of nonsuit.
    Appeal from the court of the sixth district.
   Porter, J.

delivered the opinion of the court. This action was commenced on a promissory note; and a draft drawn by the defendant, which it is alleged was protested. On the trial the plaintiff abandonmed his claim on the latter ground and proceeded for a recovery on the former.

West'n District,

Sept. 1824.

Thomas for the plaintiffs, Oakley for the defendant.

The general issue was pleaded, and no evidence appears on the record to prove the execution of the instrument sued on. The note of the testimony taken by the judge contains a marriage contract: an authorisation of the parish judge for one of the plaintiffs, who was a married woman, to sue: and the testimony of a witness who swears that he knew one of the partners of Hervey & co. and that she kept a boarding house—all of which do not afford a shadow of presumption the defendant executed the note on which this suit was brought.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed, that there be judgment for defendant as in case of nonsuit, and that the appellees pay the costs of the appeal.  