Youmans v. Puder , 13 Ga. App. 785 ( 1913 )

Pottle, J.

Where a negotiable promissory note indorsed in blank and discounted at a bank is paid to the bank at maturity by a surety thereon, title to the note passes to the surety by mere delivery, and no written assignment by the bank is necessary. The surety, having title, may sue the maker upon the note and recover the full amount due thereon, including attorney’s fees, if the note stipulates for such fees, and the statutory notice of suit is given. While the' petition in the present ease alleges that the notes sued upon were paid off and discharged by the surety, taking the allegations all together it is apparent that the surety intended to allege that he paid' to the bank the amount due on the notes, and they were delivered over to him by the bank. If the surety was not rightfully the holder of the notes or of either of them, or if for any reason he was not entitled to collect one or more of the notes, the defense should have been affirmatively pleaded. Other than the demurrer, which is dealt with above, no defense is specified in the bill of exceptions or incorporated in the record, and no diminution of the record is suggested by counsel for either party. The points made in the record are settled adversely to the plaintiff in error by the following decisions: Sheffield v. Bank, 2 Ga. App. 221 (58 S. E. 386); Bothell v. Whitley, 3 Ga. App. 755 (60 S. E. 371); South v. Peoples Bank, 4 Ga. App. 92 (60 S. E. 1087); Gray v. Oglesby, 9 Ga. App. 356 (71 S. E. 605); Wade v. Elliott, 11 Ga. App. 646 (75 S. E. 989); Butler v. First Nat. Bank, 13 Ga. App. 35 (78 S. E. 772).

Judgment affirmed.