The several contentions for error argued in support of the application for rehearing have been duly considered in the light of that argument. The plaintiff, a state official, sued in that capacity only, averring that the note declared on was the property of the bank then in process of liquidation. The fourth plea alleged that the note had been paid before the action was commenced. The action was commenced on March 22, 1918, practically four months after the date of maturity of the note sued on. The verified fifth and sixth pleas, respectively, denied the ownership of the note by the plaintiff or the bank. The note was a negotiable instrument, and there was evidence tending to show its negotiation before maturity to this bank. The judgment recites that "issue was joined," thus putting in issue, in addition to the result of the general traverses, the matters set up in pleas 4 to 6, inclusive; the burden of proof in respect of ownership being cast (by pleas 5 and 6) on the plaintiff, a burden that may have been met in respect of both the bank and the official (plaintiff) by showing ownership of the note by the bank prior to the assumption of its possession for the purpose of its liquidation. Plea 8 (stricken on plaintiff's motion) averred that defendants had paid the note sued on before they had any notice that this note had been deposited with the bank as collateral security by the payee, Crew. The note here declared on being a negotiable instrument, the doctrine of Hart v. Adler, 109 Ala. 467, 19 So. 894, followed and applied in Stewart v. Bibb Co. Bank, 177 Ala. 507,58 So. 273, is without application. Payment of a negotiable instrument, to be effectual, must be made to the holder thereof, except in certain circumstances not presently pertinent to be restated. 8 C. J. pp. 598, 599; Crawford on Neg. Instr. pp. 112, 113; Snead v. Barclift, 2 Ala. App. 297,56 So. 592; Sherrill v. Merchants' Bank, 195 Ala. 175, 178,70 So. 723. Hence, we may repeat what was said in the original opinion, that the unrestricted averment of payment in plea 4 was sufficient to admit any material matter sought to be asserted in plea 8, stricken, on motion, without error of prejudice to appellants.
The court has reconsidered its ruling in the original opinion on the oral replication, and remains convinced that no error was committed. No demurrer to the replication was suggested or filed. Its sufficiency was not brought to test. There was no suggestion, even, that it should have been reduced to writing. The record shows only an objection, no grounds being stated. The trial of the cause proceeded on a theory consistent with matter of avoidance asserted in the oral replication, culminating in the giving, at appellant's request, of the special charge quoted in the original opinion. There was evidence tending to show that the payee received from the bank, value for the negotiable note before its maturity. Whether it was sufficient to invite the conclusion hypothesized in the special given charge quoted in the original opinion was a question due to be submitted to and decided by the jury; and the proper discharge by the jury of this duty depended upon the credence to be accorded the testimony of Eppes and the books of the bank.
In the state of the evidence, the trial court cannot be held to have erred in overruling the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The application for rehearing is denied.