Plaintiff appeals from the judgment rejecting as of nonsuit Iris demand against the defendant, Francois Bonsignore, the drawer of a check for twenty-eight hundred dollars which was duly protested and notice thereof given to him.

' The defendant, Bonsignore, admitted the signature, -but alleged the filling up of the check was a forgery.

*522"We think the court erred in not permitting- plaintiff to adduce in evidence the cheek, the signature of which was admitted, because he failed to prove the genuineness of the writing in the body of the check. The burden of proof in regard to the alleged forgery was on the party setting up that defense. The bill of exceptions to the exclusion of said check and protest was well taken. They are in the record, and are sufficient to fix the liability of defendant, Bonsignore. The defense of forgery is not established by the evidence.

It is therefore ordered that the judgment herein be annulled, and that there be judgment in favor of plaintiff and against the defendant, Fran-gote Bonsignore, for twenty-eight hundred dollars, with legal interest thereon from tho ninth day of September, 1875, and costs of both courts.

Rehearing refused.