
    20371.
    Dunham v. First National Bank et al.
    
    Decided October 15, 1930.
    Rehearing denied February 28, 1931.
    
      W. V. Ouster & Son, for plaintiff in error.
    
      E. G. Bell, contra.
   Stephens, J.

1. Tlie holder of a negotiable instrument is presumably a holder in due course. In a suit by the holder of a negotiable instrument against the maker, a plea that the payee of the note has been paid alleges no legal defense, in the absence of an allegation to the effect that the plaintiff is not a holder in due course.

2. In a suit brought by the holder of the note against the maker, and also against the payee as indorser, a plea which alleges that the maker has paid the note to the payee by a surrender of the property for the purchase-money of which the note was given, and that the payee has settled with the plaintiff, and that therefore the payee who is codefendant with the maker is indebted to the maker, and which prays that, in the event of the rendition of a judgment for the plaintiff against the defendant maker, the defendant maker at the same time be given a judgment against the defendant payee for the amount which may be collected by the plaintiff from the defendant maker on the judgment rendered, alleges no right purely defensive in the defendant maker which can be enforced in his behalf in the pending suit, which is in a city court.

3. The court did not err in sustaining the demurrer to the plea as amended and in entering judgment for the plaintiff.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.  