The argument for rehearing has been carefully considered. The court remains satisfied with the conclusion attained. When due account is taken of the fact that the decision in Scott v. Taul, 115 Ala. 529, 22 So. 447, was correctly stated in Evans v. Faircloth, 165 Ala. 176, 179, 51 So. 785, 21 Ann. Cas. 1164; "based upon the principles of the commercial law with regard to negotiable instruments," there is no inharmony between that decision and any other delivered by this court requiring the consideration or application of the provisions of Code, § 4497. The construction put upon that statute in Scott v. Taul, supra, was decided upwards of 20 years ago; and the statute has been re-enacted with that construction upon it. Certainly this court would not now be justified in reading the re-enacted statute to an immediately different effect. 11 Nichie, Dig. Ala. Rep. p. 1114, citing numerous decisions.
Reference to the original opinion will disclose that the court, in construing the bill, original and as amended, did not indulge a presumption that the notes possessed all the qualities or characteristics essential to constitute a negotiable instrument; but, far differently, deduced the conclusion that they were negotiable instruments, possessing all their qualities or characteristics, from what appeared on the face of the pleading, under the influence and exaction of the applicable, familiar rule which requires, on hearing or demurrer, the pleading to be construed most strongly against the pleader.
The appellant is not related to the transaction as a surety to Simpson in his relation of debtor to the bank. The reasons for this conclusion are stated in the original opinion. The bill seeks the complete cancellation of the instruments. It does not invoke the powers of the court to ascertain and determine the extent to which the bank, as a bona fide purchaser for value and without notice, may be protected, and beyond that (the indebtedness of Simpson to the bank) the annullment of the notes and mortgage as securities for the husband's indebtedness to Simpson. That question is not presented, and hence is not decided.
The application for rehearing is denied.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.