1. Under the pleadings the defendant took the burden of proof;, and was entitled to the opening and conclusion. In actions ex contractu the test is: if under the pleadings the plaintiff would be entitled to a judgment in. his favor for the full amount authorized by his petition, without the introduction of any proof, unless the defendant.by his evidence can affirmatively avoid the prima,, facie case admittedUn plaintiff’s favor, the defendant is entitled to open and conclude. In this case the defendant having admitted the execution of the note and the transfer to the plaintiff, he admitted a prima.facie .case in the latter’s favor. The rule does not-contemplate that the defendant shall admit an absolute case for-his. adversary; only a prima facie case.
2. The instruction set out above and numbered 1 is so manifestly erroneous that we attribute it to a lapsus lingua. Of course a negotiable note already indorsed in blank by the payee .may pass, by delivery; and in.the case at bar, Shedden could have used the-note .without putting his indorsement thereon. Heard v. DeLoach, 105 Ga. 500, 30 S. E. 940. Indeed, under the evidence we can uot reasonably account for the subsequent indorsement of the English-American Loan & Trust Co. upon any other theory than that Shedden passed the note to it by delivery. We can readily appreciate how harmful this instruction could have been to the defendant, coming as it did at the beginning of the charge; for one of the defendant’s contentions was that Shedden. took this note as. accommodation paper in order that he.might obtain, money on-it, — a contention strenuously denied by the plaintiff; and this in*321struction practically settles the matter by informing the jury that Shedden could not have used t'he note without, putting his indorser ment on it; whence would arise the conclusion that he had not used it, and from that, naturally, the inference that he had not obtained it for that purpose.
3. The instructions numbered 2 and 3, while in the abstract correct statements of law, were inapplicable to the pleadings and the evidence,- and therefore tended to confuse the jury. It is-error to give such instructions. Culberson v. Alabama Construction Co., 127 Ga. 599, 56 S. E. 765, and the long line of case cited in 7 Michie’s Dig. Ga. Rep. 570, et seq.
4. The instruction numbered 4 is erroneous for two reasons: first, because it singles out one of the issues and gives judicial weight to it by characterizing it as the “main question,” especially so, when under the pleadings and the evidence this is not necessarily so; for although the plaintiff might have paid a valuable consideration for the note, if he took it, with notice of its true consideration, or rather lack of consideration, he would not be entitled to the protection of an innocent holder; then, the instruction eliminates from the consideration of the jury all of the documentary evidence introduced. Lamar v. Glawson, 38 Ga. 252; Bowden v. Achor, 95 Ga. 244 (8), also 245 (11), 22 S. E. 254; McLean v. Clark, 47 Ga. 24; Myers v. State, 97 Ga. 76, 102, 25 S. E. 252.
5. As to the instruction numbered 5, the error is that it overlooks the fact that notice of an original lack of consideration, and not notice of dishonor, was the contention of the defendant.
6. The evidence of Hodgson, set out above, was improperly excluded. He had stated the purpose for which the note had been delivered to Shedden; it was not opinionat-ive for him to state that this purpose had ended. It is strenuously urged 'upon us that the judgment should he reversed upon the facts. While we must concede that the verdict is apparently strongly contrary to the weight of the evidence, yet this is a matter which addresses itself to the jury and to the trial judge, not to this court. We look only to see if there is any evidence- to support the verdict.
