delivered the opinion of the court. ,
This suit was instituted hy the appellant, plaintiff in the court below, in the circuit court of Newton county, upon a promissory note signed and executed hy the ap-pellee for the sum of four hundred and ten dollars, dated April 4, 1912, due May 4, 1912, payable to the Merchants ’ & Farmers ’ Bank or hearer. The appellee, J. W. Williamson, pleaded the general issue and also a special plea to the effect that he had been discharged of this indebtedness in a bankruptcy proceeding. The note also provided for reasonable attorneys’ fees. At the trial in the court below, plaintiff introduced the note, proved' what a reasonable attorneys’ fee was, and rested. The defendant introduced testimony which tended to prove that the plaintiff, W. B. Sivley, was the vice-president of, the payee hank, and was also a director and one of its principal stockholders; that he was in and-around the bank a great deal, especially for a time before the hank, went into the hands of a receiver, which was about June 11; that on June 1st, after the maturity of the note, the defendant went to the bank and told the cashier, H. F. Sivley, who was a son of the plaintiff, that he desired to-pay this note. The cashier looked upon his note register, and told him the amount.of principal and interest, and took the money in payment of same. He then looked' for the note, and, after some minutes, returned and told *282tile defendant that he was unable to find the note. The defendant says that, at the time of this alleged payment, he does not know'whether Mr. W. B. Sivley, the plaintiff, was in the bank, or not. The testimony of one witness, however, which is not very positive on this point, would indicate that the plaintiff was present at the time of this attempted payment. A receipt was given the defendant by the cashier of the bank. There is also some testimony in the record to the effect that W. B. Sivley at one time was the general manager of the bank. This testimony is contradicted by other witnesses, who say that plaintiff was nothing more than a vice-president. After the introduction of all the testimony, the court declined a peremptory instruction requested by the plaintiff, and gave one requested by the defendant. In this the lower court committed error. A note payable to bearer is a negotiable instrument to which the title passes by a delivery of the note. The holder is prima facie presumed to be the bona-fide owner of it. Craig v. City of Vicksburg, 31 Miss. 216; Gillespie v. Planters’ Oil Mill, 76 Miss. 406, 24 So. 900.
Payment of an instrument of this character to a person who is not in possession of it is at the risk of the payer. 7 Cyc.- 1029. There was no proof introduced by the defendant to show that the plaintiff was not the bona-fide- owner of this note. It is true that there was some testimony to the effect that the plaintiff took possession of the notes belonging to the bank shortly before its failure, and that there was subsequently a compromise between him and the bank by his returning to the bank certain notes. The testimony also is to the effect that the bank was indebted to the plaintiff and his wife in the sum of about thirty thousand dollars at this time. However, the record in this case does not show whether the note here sued on was one of the notes taken possession of, as above set out, nor the .facts as to why or how they came into possession of these notes.
*283^If the plaintiff was present at the time of the attempted payment of this note by the defendant and knew and understood what was going on, then it was his duty, certainly as an officer of the hank, to have explained the true situation to the defendant^ Failing to do so, he would be estopped now from maintaining this suit.
Under our statutes payment is an affirmative defense, and should have been specially pleaded or notice of it given under the general issue. Neither was done in this case.
It is the contention of the appellee that, since the appellant was the vice president and, as he contends, the general manager of this bank, then the alleged payment to the bank would be binding upon him, There is no merit in this contention. An officer of a bank has a perfect right in good faith to buy its negotiable paper for a valuable consideration.
Reversed and remanded.