delivered the opinion of the Court.
The Court is of opinion, that the Circuit Court erred in permitting the order or draft, purporting to have been drawn by the plaintiff in error, to go in evidence to the jury, as stated in the second bill of exceptions, without evidence of the genuineness of the signature thereto; inasmuch as the declaration only alleges that the plaintiff in error made said order or draft, without also alleging that he subscribed his name thereto, which the statute of the 5th of February 1828, dispensing with the proof of handwriting in certain cases, Sup. Rev. Code, p. 265, requires. It is therefore considered by the Court, that the said judgment is erroneous, and that the same be reversed and annulled, and the verdict of the jurors set aside ; and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his writ of error aforesaid here. And the cause is remanded to the said Circuit Court for a new trial to be had of the issue between the parties, prior to which, the said Circuit Court is to give the defendant in error leave to amend his declaration, and the plaintiff in error leave to file such affidavit as the statute authorizes, if by them respectively applied for.