The notes set out in the declaration are not per se binding upon the defendants, but they import prima facie, a liability of the “ New Orleans and Mobile mail line.”— Prima facie we say, because in an action against the mail line, it would be allowable for its members to deny by plea, the authority of those who professed to be its agents, to make notes in its name; and unless the plea was disproved, defeat a recovery. *170[Lazarus, use, &c. v. Shearer, 2 Al. R. N. S. 718.] Had the 1st and 2d counts in the declaration been demurred to, they must have been adjudged insufficient to charge the defendants. But no objection was made to them in point of law; and the plea of non assump-sit is only a denial of the facts alleged in the declaration, and throws upon the plaintiffs the burthen of proving the truth of so many of the counts as he recovers on. [Arch. Civ. Plead. 177.]
The plea of non assumpsit puts the plaintiff to the proof of his whole case, and in answer the defendants may in general adduce any evidence which disproves the case set up by the plaintiffs, and shows that at the time when the action was brought, the plaintiffs had no cause of action, or at least no right to maintain the action of assumpsit. In the present case, it is not a matter of doubt whether the notes were intended to bind the defendants to the payment of the money; for if the agency of the defendants is conceded, the notes are an engagement of the mail line to pay, and so import on their face; and consequently parol evidence is inadmissible to vary their legal effect. If it were doubtful, from an inspection of the notes, whether they were intended to charge the defendants or the association they represented, it would have been allowable for the former to have denied by plea, under oath, that they were their notes. [Lazarus, use, &c. v. Shearer, 2 Al. Rep. N. S. 718.] But such not being their character,they should have demurred, and cannot be allowed to raise by evidence the legal questions which are waived by a plea merely contesting the truth of the facts alleged.
The evidence adduced by the defendants, merely shows, that the notes were not intended to impose a personal liability upon them, and the charges prayed and refused, have reference to such a state of fact; while the legal sufficiency of the declaration is admitted, and asserts the .reverse. Under the state of the pleadings, the objections attempted to be raised on error, cannot be revised; and the judgment of the county court is consequently affirmed.