
    Fryer & Al. v. Darcy.
    Proof of the defendant’s signature as acceptor, and also of the payee of the bill, when the general issue is pleaded, and the signatures of the acceptors are specially denied, is required before a recovery can be had.
    Appeal from the commercial court of New Orleans.
    This is an action on a bill of exchange for $1065 90, drawn by J". Stewart in Hew-York, the 14th December, 1839, payable one month after date to the order of the drawer; drawn on and accepted by Gossip & Go., New Orleans ; payable at 157 Water-street, New-York.
    There was the record of a suit and judgment in New-York, rendered against the defendants, George H. Gossip and James Darcy, for the amount of the bill sued on; but it appears that the defendant, Darcy, was not cited; the writ being returned as to Mm, not found.
    
    The present suit is instituted on the bill of exchange, and also on the record of the suit in New-York.
    The defendants for answer pleaded a general denial; and aver, that [528] inasmuch as oyer of the bill is prayed for and refused by the court, they specially deny having ever affixed their signatures to the said instrument.
    
    On these pleadings and issues the cause was tried by the court. There was judgment for the entire amount of the plaintiffs’ demand, without any proof being made of the signatures of drawer .and pmjee of the bill, and also of the acceptors. After an attempt to obtain a new trial on the ground (among others) that there was no proof of the signatures of any of the parties to the bill, was overruled, the defendant, Darcy, alone appealed.
    
      L. O. Duncan for the plaintiff.
    
      Micou contra.
   Martin, J.

delivered the opinion of the court.

The defendant is appellant from a judgment against Mm, as the acceptor of a bill of exchange in favor of the plaintiffs as indorsees and holders. Several pleas and exceptions were pleaded, and among them the plea of the general issue and a special denial of the signatures of the acceptors. The conclusion to which we have come on the two last pleas renders it unnecessary to examine any of the others, or the exceptions.

No proof was made of the defendant’s signature as acceptor, nor of that of the payee ; although the absence of this proof was made the grounds of an application for a new trial, which was resisted by the plaintiff and overruled.

There were two defendants, against whom judgment was obtained in the court below; but we have taken notice of the appellant only, as Ms co-defendant did not appeal.

It is therefore ordered, adjudged and decreed, that the judgment of the commercial court be annulled, avoided and reversed, as to the defend- [529] ant, James Darcy; and that as to him there be judgment in his favor as in case of nonsuit, with costs in both courts.  