delivered tbe opinion of the court.
The defendant being sued on his promissory note, secured by a mortgage on a slave for five hundred and fifty dollars, resists the plaintiff’s action, by a denial that' he made and . executed the .note and mortgage sued on, and on other-grounds.
At the trial of the cause, the defendant offered witnesses to prove a want of consideration in the note sued on, and fraud in its execution as alleged, and that the act of mortgage is not a notarial act. This evidence was objected to, on the part of the plaintiff, and the objection sustained by the court, on the ground, that the answer of the defendant contained a special denial of his signature, and the signature having been duly proved, the party was precluded from availing himself of any other plea or defence. Code of Practice, article 326. A bill of exception was taken to the decision of the court. There was a verdict and judgment for the plaintiff, from which the defendant appealed.
As the case comes up, no proof of the genuineness of the signature to the note was adduced, either before or after the rejection of the defendant’s witnesses : so that we must infer that the parish judge assumed, that the signature was duly proved, from the circumstance of the defendant having forborne to make an express admission or denial of his signature, as required by law. Code of Practice, article 324.
The counsel for the appellant has urged in argument, that the judgment should be reversed, because if the denegation of having made and executed the note, be a special denial of the■ signature, the judge erred in rejecting the witnesses, before proof was made of the signature. If such a denegation be not a special denial of the signature, the judge was still in error in rejecting the witnesses. In the first hypothesis, the jury erred in finding a verdict, without proof of the genuineness of the signature.
This court is of opinion, the parish judge erred. The penalty which the law denounces, when a party is deprived of the benefit of his pleas or defence, who expressly denies his own signature, is not in our opinion incurred by the denial *227of his having made and executed the note sued on, and to which his signature appears. This denial may be special, as in the plea of non est factum of the common law. After the signing, sealing and delivery are proved, the special plea of non est factum is established, by proof of the delivery as an escrow, or by a material alteration, as by the tearing of the seal. After the note is signed it is certainly made, yet it will not avail the payee before the maker parts with it: ... , , , „ r . ! then, it is perhaps not executed. After execution, it may cease to be the note of the maker, by any material alteration Without his consent. '
Although an express denial of every allegation. is an express de- “ ? ihe^íeTo! the general issue does not waive others, and an ctemenSiof die signature is re<juired, before the party is dcei-y other plea, ma<&™SfhuTsigí nature.. , . Although an express denial of every allegation be an express denial of each one, this court has held, that the plea of the ,- * general issue to the plamtifrs demand, founded on a promissory note, does not waive others when found for the plaintiff; that is, an express and special denial of the signature is . L rt ° required, before the party is debarred from every other plea or defence, on proof being made of it by the adverse party. 8 Martin, N. S., 329. 1 Louisiana Reports, 486.
, In the case cited from 8 Martin, N. S., 329, the effect of tbe denial of the execution of the note appears to have been argued and considered in its true light, but no decision was made on that point in the case.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed ; the verdict set aside, and the case remanded for ' trial, with directions, to allow the defendant to offer testimony in support of all his pleas; the appellee paying costs in this court.