
    2588.
    Roth v. Donnelly Grocery Co.
    Decided January 24,
    — Rehearing denied February 22, 1911.
    Complaint; from city court of Atlanta — Judge Reid. March 18, 1910.
    
      Morris Machs, F._M. Hughes, for plaintiff in error.
    
      Maddox & Pool, contra.
   Rowell, J.

1. A promissory note payable to order, but with a blank for the name of the payee, is valid, and any bona fide holder may,fill the blank with his own name as payee. Moody v. Threlkeld, 13 Ga. 55 (3). Hence, a plea to a suit on a promissory note, alleging that it was issued in blank and that the payee had filled the blank with his own name, does not allege a material alteration of the note, and does not constitute an issuable defense

2. A plea or answer to a suit on a promissory note, which alleges fraudulent conduct of a person other than the payee or some-other person in privity with him, does not constitute an issuable defense, and is properly stricken on demurrer.

3. Where all issuable defenses are stricken, judgment may be rendered by the judge without the intervention of a jury, in the city court of Atlanta.

4. Where, in order to hold the maker of a promissory note liable for attorney’s fees, the statutory notice is given within the time prescribed by law, and no payment is made on or prior to the return day, the defendant is liable for the attorney’s fees, although the petition in the case be filed before the return day. Judgment affirmed.  