
    2418.
    Haley v. Vandiver et al., for use, etc.
    Decided July 19, 1910.
    Certiorari; from Franklin superior court — Judge Brand. December 16, 1910.
    
      Adams & Brown, for plaintiff in error. G. L. Goode, contra.
   Hill, C. O'.

This was a suit in a justice’s court, on a promissory note, against the maker by the holder, who was not the payee. ' The defendant pleaded failure of consideration, and, by an amendment to the plea, set up that the note had been “materially changed'and altered, in that the words ‘or bearer’ had been inserted in said note since the making thereof, and without the consent or authority of defendant.” On motion of the.plaintiff this plea as amended was stricken, and' judgment entered for the plaintiff. On certiorari this action of the justice’s court was sustained by the judge of the superior court, and the defendant excepted. Held: The plea as amended set.up a good defense. The note when made was not negotiable. The alteration alleged made it apparently negotiable or transferable by delivery. If this note as executed was not negotiable, the rule as to bona fide purchasers before maturity and without notice did not apply to the defense. If the note when maje was payable to the named paj^ee or bearer, title passed by delivery, and the maker could not set up the defense of failure of consideration as against the bona fide holder. The alteration, therefore, was material, and if made as alleged in the amended plea, the negotiability of the note was a forgery, and in effect the plea amounted to a plea of non est factum. The plea as amended was sworn to, and, as it set out a good defense, the judge of the supei'ior court erred in not sustaining the certiorari and remanding the ease for another trial.

Judgment reversed.  