The opinion
On Petition to Rehear.
It is said that Geisler and others cannot attack the validity of the $5,000 note, to pay which the certificates of deposit, here involved, were negotiated to the Union National Bank, but that same could only be questioned by Rogers & Co.
This question was not dealt with in the original opinion, except incidentally in dealing with the defense of res adjudicaba, and for the reason that the court interpreted the following excerpt in the brief of counsel for the Union National Bank to waive same, to-wit: “The only question for the consideration of the court is whether or not the Union National Bank' had notice of any infirmity or defect in the note at the time it took it.”
Upon that statement this court carefully considered all of the authorities bearing upon-the question, and announced its conclusion in the original opinion.
Section 59 of the Negotiable Instruments Act (chapter 94, Acts of 1899) provides as follows: “Every holder is d'eemed prima,-facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder ■to prove that he, or some person, under whom he claims acquired the titlé as a holder in due course.”
■ Upon it being made to appear that Rogers & Co. wrongfully transferred these certificates of deposit to the Tank, the burden shifted to the"bank to show that it acquired same in due course, one of the elements of which is “value.” It undertook to meet this burden by showing that these certificates were received in payment of *499 a valid $5,000 note, which it held against Rogers & Co. In this way the issue was presented as to whether this was a valid note, and, if not, whether the bank was a holder thereof in due course1? .
In our original opinion we held that the note was void, and that the bank was not a holder in due course.
Thus it appears that it was the complainant bank that raised the issue as to the validity of this note.
"We have carefully considered all the questions raised in the petition to rehear, the one referred to above being the only one which presents any matter that was not considered upon the original hearing, and find them all without merit, and therefore dismiss the petition to rehear.