Page:Federal Reporter, 1st Series, Volume 10.djvu/464

 453 FEPKRAL KEPOBTEII. �The eviclonoe as to the transfer of the note by the Macou Bank & Trust Company to the plaintiff was, in brief, as follows : �J. W. Cabaniss, cashier of the Maeon Bank & Trust Company, was swoni by the defendant, and testifled that he, as cashier, " made the tratisfer of the note for the Macon Bank & Trust Company to the plaintiff. The Macon Bank & Trust Company is in liquidation. It has ceased to do business, and all its afifairs are in charge of the president, Mr. G. B. Roberts, and myself, as cashier. I made the transfer of this note to the plaintiff after consultation with Mr. Roberts. The directors of the Macon Bank & Trust Company were not consulted about it. It is not customaiy for the president and myself to consult them. They have left to us the winding up of the assets of the bank. For the note, Mr. Roberts paid me his check on the Exchange Bank for $3,000 at the time of the transfer in 1879. I am also cashier of the Exchange Bank, and Mr. Roberts is a director of that bank. The check for 03,000 I have never collected. It is among the assets of the Macon Bank & Trust Company. Roberts has always had enough money in the Exchange Bank to pay the check, except, perhaps, occasionally his deposit may have run below that amount ; but the Exchange Bank would have paid the check at any time. Roberts has no control whatever of the check. There is no agreement that the clieck shall not be collected. There is no entry of this transfer on the books of the Macon Bank & Trust Company. There are a great many trans- actions of the Company not yet entered up on the books ; but I have data from which I can post them all up." �Benjamin G. Rockett, the defendant, was also sworn, and testifled that at the time of the maturity of the note he was abundantly solvent, and worth largely more than the amount of the note. �G. B. Roberts, sworn for plaintiff, said: " I was indebted to the plaintiff in 1879 to the amount of $8,000. I gave her a mortgage on realty to secure $5,000, and gave to her as collateral security for the remaining $3,000 the note now in suit, for which I gave the Macon Bank & Trust Company my check for $3,000; at the same time (March, 1879) I had the cashier of the coinpany indorse the note to the plaintiff. I do not remember whether the plaintiff ever had the note in possession. It was turned over to Bacon & Ruth- erford, attorneys at law, with a letter from her. She is my niece. If the plain- tiff should get judgment in this case and collect the whole amount of the note from the defendant, I am under no obligation to pay back to the Macon Bank & Trust Company the excess of that amount over $3,000, for which I gave my check. At the time I gave the check, which was for about 50 per cent, of the amount of the note, there were doubts about the sol vency of the defendant ; at least, it was known that he was heavily in debt. While under no obligation, I would not be willing as president to malce a profit ont of the bank, and I should pay to the bank the excess of the recovery over the $3,000." �The court held that the plea in this case, although filed as a plea to the jurisdiction, was in reality a plea in bar, being, in substance, a deniai of the plaintiff's title and right to sue, and overruled the demurrer to the defendant's plea on the grounds that the contract of ��� �