The plaintiffs sue for the recovery of the amount of an account for goods and merchandize sold by the firm of J. Materre & Co. to the defendant, who, in his answer, denies being in any manner indebted to the firm, alleging that he never had any transaction with it. He further pleads that he kept an open account with Materre, and purchased goods from him, because Materre, being his debtor, could not settle with him in any other way. He adds that he never knew of the existence of the firm of J. Materre & Co., until his transactions with Materre alone had ceased. There was judgment below in favor of the defendant, and the plaintiffs have appealed.

The case appears to have been tried below on the question, whether the defendant knew or not that he was dealing with Ma-terre & Co., and not with Materre alone; and the defendant has attempted to show that the latter was indebted to him in a sum of money larger than the amount claimed in the petition. We have looked in vain in the record for any evidence that the defendant ever purchased the articles, the price of which is claimed by the plaintiffs. Before trying any collateral question presented by the pleadings, it is clear that the plaintiffs should have first established their demand. We have not been able to discover in the answer any admission which would dispense with the production of the proof required, and we think they were properly nonsuited.

It is, therefore, ordered that the judgment of the Commercial Court be affirmed with costs, but to have no further effect than one of nonsuit.