83 W. Va. 477 | W. Va. | 1919
The question certified is, whether it was error to strike out defendant’s special plea, which the court had previously permitted him to file, in this action of assumpsit on a pi’omisr sory note made by him payable to plaintiff, a national bank. Defendant pleaded the general issue and also filed a special plea, which on motion of plaintiff the court later struck out. The special plea avers, in substance, that defendant was a stockholder and director of the plaintiff bank when the note was executed; that on making an examination into the financial condition of the bank, the Comptroller of Currency discovered that it had been carrying numerous notes and evidences of debt against certain persons, named in the plea, aggregating $23,068.74, which he refused to permit it longer
This plea sets up a good defense. The rights of the bank’s creditors do not appear to be involved. The note is still in the hands of the payee who brings the suit, and it is a well settled principle that as long as a negotiable note remains in
No reason is assigned for striking out defendant’s plea. The court may haA^e rejected it because it thought it set up no defense to the action, or because it thought the defense set up by the special plea Avas provable under the general issue. If the case AATere before us on Avrit of error to a final judgment, the rejection of the plea would not alone be cause for reversal, because the matters averred are clearly provable under the general issue. But notwithstanding they are so provable, defendant had a right, if he so desired, to plead them specially, they being in the nature of a confession and
Onr conclusion is to reverse the order striking out the special plea and remand the cause.
Order striking out special plea reversed.