delivered the opinion of the court. This is an action against the drawer, and acceptor of a bill of exchange. Since its commencement the drawer has died. Judgment was given against the acceptor, and he has appealed.
It appears the citations were originally served in the English language only. The defendants, in their answer, excepted to the sufficiency of the service, and pleaded in addition to the merits. The court sustained the exception, and ordered the cause not to be put on the trial docket, until service was also made in the French language.
*287This service was made on at least one of the defendants, and at a subsequent term the cause was tried, without any notice being taken of the plea in abatement, and decided on its merits.
The defendant has relied in this court on the exception originally taken, and insists no service was ever made in the French language.
The return of the sheriff is not very clear or satisfactory on this point. It is difficult to say from the manner it is written on the record, whether the service was made on one, or both defendants, or if only on one, on which of them.
The presumption is, it was on both, because the defendant went into the trial without taking the objection, and whether it was, or not, we are of opinion that by doing so, he waved the exception.
But before doing so, he moved for a continuance on an affidavit, which stated that there were material witnesses absent, by whom he could prove, that the draft was given by his brother in error, and without consideration. The court refused to continue the cause, and lie filed a bill of exceptions.
in support of this opinion the plaintiffs have *288correctly urged First, That if the witnesses had been present, they could not have been heard, because no such defence was set up in the answer. Second, That the acceptor of a bill of exchange has no right to enter into the consideration between the drawer and payee.
Carleton for the plaintiffs, Watts S* LobdeJl for the defendant.It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.