[Bunzel v. Maas & Schwarz.] conclusion that plaintiff did not acquire the notes in the usual course of business when the facts should have been stated.-3 Brick. Dig., 510, § 31; 1 Daniel Neg. Instr., $ 770. 2. The written charge requested by plaintiff and numbered 1, stated a complete answer to the defense set up, and was in strict conformity with replication 3 to plea 10, replication 4 to pleas 13 and 14, and replication 2 to plea 15, on which defendants took issue, and on which the case was tried.-Hamner v. Pounds, 57 Ala. 348; Moore v. Robinson, 62 Ala. 537; Winter v. Pool, 100 Ala. 503; M. & E. R. Co. v. Chambers, 79 Ala. 342; 27 Amer. & Eng. Encyc. of Law, 915, note 3; 1 Daniel Neg. Instr., § 780, note 1. 3. The 5th charge requested by the plaintiff should have been given. The buying of the notes by plaintiff, after he knew that the maker was insolvent, was not such gross negligence as to be evidence of bad faith.— Wildsmith v. Tracy, 80 Ala. 258; Lane v. Krekle, 22 Iowa 399; Clark v. Thayet, 105 Mass. 216; Nightingale v. Wetherington, 15 Mass. 261. The written charge requested by plaintiff, numbered 6, stated a complete answer to the defense set up, and was in strict conformity with replication 3 to plea 10, replication 4 to pleas 13 and 14, and replication 2 to plea 15, on which defendants took issue, and on which the case was tried and said charge placed the burden of proving notice of infirmity on defendants, where it belonged.-First Nat. Bank v. Dawson, 78 Ala. 67; Johnson v. Hanover Bank, 88 Ala. 271. 4. The court erred in refusing to give the charge on the effect of the evidence, requested in writing by plaintiff, and numbered 7.-Scarbrough v. Malone, 67 Ala. 570; Hamilton v. Vought, 34 N. J. L. 187; 1 Daniel Neg. Instr., § 775. PETTUS & PETTUS and PITTS & PITTS, contra.-1. The court did not err in overruling demurrer to plea number 10. This plea sets out the facts showing that the endorsements were accommodation endorsements with restrictions, then avers the fraudulent diversion of said endorsements. The diversion was in using the endorsements for a purpose different from that for which they were made; the facts are set out showing that [Bunzel v. Maas & Schwarz.] the endorsements were used, and not used for the purpose for which they were made. This being a negative fact, the simple statement that they were not so used was the only fact that could be stated, unless the plea set out how and with whom and for what the endorsements were used. These facts may not have been known to the defendants, and these were facts. which could be obtained only through the plaintiff. The plea sets out facts showing that the diversion was fraudulent. All the facts presumed to be within the knowledge of defendants are set out. All the particular facts and circumstances which constitutes the fraud need not be minutely stated. General averments from which, unexplained, a conclusion of fraud arises, are sufficient. Burford v. Steele, 80 Ala. 147; State ex rel. v. Cobb, 64 Ala. 147; Perry Ins. & T. Co. v. Foster, 58 Ala. 520. The plea alleges notice to the plaintiff of the circumstances and conditions and restrictions of the endorsements before the purchase of said notes.-First Nat. Bank v. Dawson, 78 Ala. 67 ; Gilman v. R. R. Co., 72 Ala. 566; Marks v. First Nat. Bank, 79 Ala. 550; 1 Brick. Dig., 276, § 356. 2. The demurrers to plea No. 16 were properly overruled. The court did not err in overruling plaintiff's objection to the question: "Describe the notes referred to in said letters?" The notes referred to were not the foundation of the suit, and their production was not required.-3 Brick. Dig., 439, § 486; 1 Brick. Dig., 856, § 753; Wollner v. Lehman Durr & Co., 85 Ala. 274; Howell v. Carden, 99 Ala. 100. 8. A note or bill which, in the hands of the holder is a valid debt, may be bought or sold as any other chattel at its real or supposed value, and the transfer of such a bill or note at a discount beyond the legal rate of interest is not usurious.-Capital City Ins. Co. v. Quinn, 73 Ala. 558. But if a bill or note be made for the purpose of raising money on it, and it is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it can, as between themselves, maintain a suit on the bill when it becomes mature, provided it had not been discounted, then such discounting would be usurious and the bill would be void. The notes were made by I. L. Levy, payable to defendants, and only endorsed by defendants. Between [Bunzel v. Maas & Schwarz.] them the notes were not valid. J. Marx & Co. were not bona fide purchasers.-Capital City Ins. Co. v. Quinn, 73 Ala. 558; Saltmarsh v. Tuthill, 13 Ala. 390; Carlisle v. Hill, 16 Ala. 398. A note to be subject of sale must have had a pre-existing vitality. 4. Under all the evidence J. Marx & Co. were not bona fide holders of said notes.-Capital City Ins. Co. v. Quinn, 73 Ala. 558. And if the notes have never passed into the hands of a bona fide holder for value, then the plaintiff was not entitled to recover.-Saltmarsh v. Tuthill, 13 Ala. 390; Saltmarsh v. B. & M. Bank, 14 Ala. 668; Carlisle v. Hill, 16 Ala. 398. BRICKELL, C. J.-This suit was brought by appellant, as the holder and owner of six negotiable promissory notes, for $500 each, which were made on the 24th of February, 1892, by I. L. Levy, and endorsed by the appellees, who were sued as such endorsers. 1. The tenth plea alleges that the endorsements were made without consideration, but at once qualifies this statement by averring that they were made upon the promise of the maker to use said endorsements for the purpose of redeeming certain collaterals pledged for a debt of his to another party, promising to pay off the indebtedness for which the collaterals were pledged "by the use of said endorsements," and to deliver the collaterals to appellees for their indemnity. That the said Levy also promised to procure and deliver as further indemnity to the defendants for their endorsements, the written guarantee of Steiner Bros. of Birmingham, "which said guarantee the said I. L. Levy then and there falsely and fraudulently assured these defendants, the said Steiner Bros. had promised and agreed to make." The plea then alleges that relying upon these promises and representations for the purpose stated and no other, they endorsed said notes, and that Levy fraudulently diverted the endorsements and failed to keep said promises. The plea was demurred to on the ground that it alleges that Levy fraudulently diverted the endorsements, without stating the facts constituting the supposed fraud. And, on the further ground that it does not appear from the plea that the defendants were not accommodation endorsers of said notes without restriction upon their use. The demurrer was improperly [Bunzel v. Maas & Schwarz.] overruled. It does not appear from the plea how the endorsements were to be used in redeeming the collateral referred to therein; whether by using the proceeds of a discount of them in paying the debt for which the collaterals were pledged, thereby redeeming them; or by a transfer of the notes to the holder of the collaterals in substitution of the debt, thereby inducing a surrender of them. If the former case, it is obvious that a discount of the notes was contemplated, and the promise would relate only to the use of the proceeds of the discount, not affecting the purchaser of the notes, not having notice of an intention to misapply the proceeds. And the plea rather indicates that the notes were to be sold, since it alleges that the creditor holding the collateral was to be paid; the words being, "promised these defendants to pay off said indebtedness to said Lehman, Durr & Co. by the use of said endorsements." If it was the intention of the pleader to prove in defense, that the notes were not to be discounted, but were to be transferred only to the creditor holding the collaterals, he should have left no doubt about the fact, by averring distinctly what the agreement was upon which the endorsements were made. As the plea stands, it is open to both of the objections mentioned in the demurrer. Construing the plea, as we must in this case, most strongly against the pleader, it does not deny the right to sell the notes, but only sets up a breach of promise in the use of the proceeds, which would not bar a recovery by the holder of the notes, not having notice of the intention to misapply them. 2. The fifteenth plea alleges the endorsement for accommodation of Levy and upon his promise to use the notes with the creditor holding the collaterals referred to in the tenth plea, and upon his promise to deliver the collaterals so taken up to the endorsers for their indemnity, and avers that Levy did not use the notes with said creditors for the purpose for which they were endorsed and delivered, but fraudulently diverted them by discounting them with J. Marx & Co. at an usurious rate of interest. The plea then alleges that the plaintiff did not acquire the notes or either of them before maturity in the usual course of business. These are the substantial averments of this plea. It will be observed that there is no averment how these notes were to be [Bunzel v. Maas & Schwarz.] used with Lehman, Durr & Co., whether by discount or otherwise; nor is there any averment how the proceeds of the discount actually made were used. They may have been used to take up the debt with Lehman, Durr & Co., thereby redeeming the collaterals which the endorsers were to have for their indemnity. And all this may have been done and the collaterals actually delivered to defendants, so far as any averment in the fifteenth plea is concerned. It is obvious the facts stated in this plea form no defense to the action. It may be true in all its averments, since the substance of the agreement averred is that the notes should be discounted with Lehman, Durr & Co. and the proceeds used to take up the collaterals to which it refers. If the discount was with a third person and the proceeds used with Lehman, Durr & Co. for the purpose named, and effecting a redemption of the collaterals for delivery to the defendants, there would be no cause of complaint. And it does not appear from the plea but that all this was done, including the delivery of the collaterals to defendants. As this plea is clearly deficient in substance the demurrers thereto should have been sustained. 3. The plaintiff offered in evidence the examination in chief of a witness examined by deposition in his behalf. The court required the plaintiff to introduce and offer at the same time the cross-examination. We think this was error. A deposition is a simple substitution for an oral examination in which the cross-examination is called out by the act of the party cross-examining. A party cross-examining does not make the witness his by a cross-examination. He may impeach him by all the modes open to him notwithstanding the cross-examination. The examination by deposition and the offering of the testimony in such case must stand in all respects as an oral examination.-Van Horn v. Smith, 59 Iowa, 142; Converse v. Meyer, 14 Neb. 190; Cellatly v. Lowrey, 6 Bosw. 113; Citizens Bank v. Rhutasel, 67 Ia. 316; Herring v. Skaggs, 73 Ala. 446. 4. The fourth assignment of error was an objection. by plaintiff to a question put by defendants, asking a witness to describe the notes referred to in certain letters attached as exhibits to the deposition of M. L. Ernst. The question was objected to on two grounds: that the evidence was irrelevant, and, second, that the notes |