*579On Petition for a Rehearing.
Pettit, J.At the last term this cause was reversed for the error of the court below in sustaining a demurrer to an answer of non-assignment, which was sworn to. The concluding part of that answer was in these words : “ And that said Joseph M. Baylies wrote his name across the back of .said note, but never delivered the same to the said Edgar; and the said Edgar has no right, title, or interest therein, and is not the real party in interest; and that the real party in •interest is the said Joseph, who owns and holds said note.” This was a good and perfect answer of non-assignment, and denial of the right of the plaintiff to maintain the action, and the demurrer to it ought to have been overruled, and we so ’held in our opinion.
The note was payable in a bank, and therefore governed ’by the law merchant, and no defence of set-off or counterclaim could be set up to it in the hands of an indorsee before •due, and without notice.
The answer also attempted to set up a set-off or counterclaim to the note, if in the hands of the payee. This part of the answer we held bad, as against the payee of the note, because it was not well pleaded; and surely it was bad as against the indorsee before due and without notice; but we ■held the answer good as a denial of the assignment and of the right of the plaintiff to maintain the suit.
A long and earnest petition and brief for a rehearing has been filed, on the grounds that the answer did not show that the defendants (appellants) had a good set-off to the note if it had been sued on by the payee, and that the payee and indorser was sued in the same suit, and that he was defaulted .and made no objection to the suit’s being prosecuted by and in the name of the plaintiff the alleged indorsee of the .note.
It is enough to say that the answer showed that the plaintiff had no right to maintain the suit bn the note, and that it will be in time and soon enough for the defendants to show *580that they have a defence to the note, when they are sued by the proper party, the payee, holder and owner of the note.
And as to the action, or non-action, of Joseph M. Baylies,. the payee and alleged indorser of the note, in the suit, we hold that it cannot affect the right of the makers of the note to require that the suit should be brought by the legal holder and owner of it.
The petition for a rehearing is overruled.