
    Smith v. First National Bank of Marietta.
    Submitted May 1,
    Decided June 6, 1902.
    Complaint. Before judge Fite. Cobb superior court. November 26,1901.
    
      Sessions & Moss, for plaintiff in error.
    
      J. Z. Foster, contra.
   Simmons, C. J.

1. Where, in a suit by a national bank upon apromissory note

against the maker and indorser, the latter pleaded that the bank had allowed the maker to sell and transfer certain stock in the bank, upon which the bank had alien “under the laws governing national banks,” without first requiring the payment of the note, and that the consequent increase in the risk of the surety had operated to release him, it was not error to strike such plea for the reason that the bank, organized under the national-bank act, had and could have no such lien upon the stock of its shareholder. Bank v. Lanier, 11 Wall. 369; Bullard v. Bank, 18 Wall. 589.

2. The original plea having set up no defense whatever, an amendment, the purpose of which was to set up a defense not indicated by or referred to in such plea, was properly rejected on the ground that there was nothing to amend by.

3. The suit being on an unconditional written contract, and there being no issuable defense, the judge did not err in entering up judgment without hearing evidence.

Judgment affirmed.

All the Justices concurring, except Lewis, J., absent.  