items of which the account is composed: Tassey vs. Church, 4 W. & S. 141; Johns vs. Lantz, 63 Pa. 324; Ruch vs. Fricke, 28 Pa. 241; McClelland's Executor vs. West's Administrator, 70 Pa. 183. When parties have had mutual dealings an admission by the defendant of a definite balance due against him is prima facie evidence of plaintiff's demand; Buckley vs. Maryland Paving Company, 132 Pa. 572; Anderson vs. Best, 176 Pa. 498; McGinn vs. Benner, 180 Pa. 396. The letter of the decedent in evidence contained an unequivocal acknowledgment of a specific balance due against him upon general account and an express promise to pay it. The learned court below did not fall into error in allowing the claim."

At the trial the plaintiff testified that the defendant came to his place of business on May 25, 1908, and paid $10 on account of his indebtedness to the plaintiff, and said, "I am going to pay it all up," and on page 5 of the notes of testimony it appears he said, "I gave him an itemized statement at the time he paid me the $10." In view of this testimony there can be no doubt as to what indebtedness the defendant referred when he made the promise. It was not uncertain or equivocal. It is true the defendant denied that he had made such promise, or that he paid anything on account of his claim, but that was a question for the jury, and we submitted it to them. Having found that he did make the promise, and that the indebtedness was identified as testified to by the plaintiff, there is no reason advanced why we should disturb their verdict, and we, therefore, discharge the rule to show cause why judgment should not be entered for the defendant n. o. v.

EROH vs. EROH.

Divorce-Service of Subpoena-Interval Between Service and Return Day.

To constitute a legal service, a subpoena in divorce must be served fifteen days before the return day.

In the Court of Common Pleas of Lehigh County. Eroh vs. Eroh. Divorce.

Robert L. Stuart and Frederick A. Stillwagen, for Libellant.

Groman, P. J. Now, January 13, 1914, the record shows that the subpoena was returnable the first Monday of February, 1914. Service was made by the sheriff on January 19, 1914, fourteen days before the return day, only, The law requires fifteen days. Excluding the day of service and including the return day verified the above view. Decree refused on account of defective service of the subpoena in divorce.

WILCOX vs. STECKEL & COMPANY.

Practice-Affidavit of Defence -Promissory Note.

Where sufficient facts are set forth in the affidavit of defense, it defeats the right of the plaintiff to a summary judgment, and the case has to be submitted to a jury.

If it is alleged that a promissory note was given without consideration, and that the president of the corporation defendant was not authorized to execute the note binding the corporation to pay a pre-existing debt of another, it is sufficient to prevent judgment.

In the Court of Common Pleas of Lehigh County. No. 53 October Term, 1914. Mrs. D. T. Wilcox vs. A. P. Steckel & Co. Rule for Judgment for Want of a Sufficient Affidavit of Defence.

M. P. Schantz and Smith, Paff & Laub, for Plaintiff.
Frank Jacobs, for Defendant.

Groman, P. J., March 15, 1915. The plaintiff, on October 23, 1914, brought an action in assumpsit against the defendant, a Pennsylvania corporation, in which it is sought to recover the sum of four hundred dollars with interest from March 15th, 1912, at five per cent., claimed as due on a promissory note executed and delivered to the plaintiff by the defendant. After demand for payment and refusal to pay, this suit was brought. F. P. Steckel, president of the defendant corporation, filed an affidavit of defence alleging want of consideration, a supplemental affidavit was later filed alleging that Amelia E. Steckel was indebted to the plaintiff for a certain amount and that the defendant corporation executed and delivered the note without consideration and in payment of a pre-existing indebtedness of Amelia E. Steckel to the plaintiff; and that the note was executed

and delivered without authority of the Board of Directors of the defendant corporation. A rule was entered to show cause why judgment should not be entered for want of a sufficient affidavit of defense.

The question now to be determined is not a question of liability, but whether the defendant avers enough in the affidavit of defense to put the plaintiff to proof as to whether there was a consideration or not, and whether the president of the corporation was authorized to execute the note binding the corporation to pay the preexisting debt of another. If the affidavits meet this requirement they defeat the right of the plaintiff to a summary judgment and require the Court to send the case to a jury. Schultheis vs. Sellers, 223 Pa. St., Page 513, Eliel vs. Chamberlain, 48 Pa. Sup. Ct., Page 610.

If the above defense were made out, the plaintiff could not recover, Paxson vs. Nields, 137 Pa. St., Page 385. Upon the trial, the plaintiff would offer the note and thus make out a prima facie case, the defendant answer want of consideration, the burden then falling upon the plaintiff to show consideration, Conmey vs. McFarlane, 97 Pa. St., Page 361. If an affidavit of defense raises questions of fact, which if believed would be a good defense before a jury, that is all the law requires of the defendant, Eliel vs. Chamberlain supra. The facts alleged if proven at the trial and believed by the jury would make out a complete defense.

Now March 15th, 1915, rule discharged.

NATIONAL ALUMNI vs. SCHULTZ & SON.

Promissory Note-Action by Endorsee Against Maker-Fraud -Burden of Proof.

In an action on a promissory note the holder is required to show the consideration he paid for it and how it came into his hands, where the defendant proves that it was put into circulation fraudulently.

The burden of proof to establish failure of consideration is entirely upon the defendant.

In the Court of Common Pleas of Lehigh County. No. 76 June Term, 1913. National Alumni vs. N. M. Schultz and Son. Rule for New Trial and for Judgment Non Obstante Veredicto.

tiff.

ants.

James L. Schaadt and S. R. Zimmerman, for Plain

Fred B. Gernerd and Claude T. Reno, for Defend

Groman, P. J., March 15th, 1915. The plaintiff brought suit in assumpsit to recover from the defendants the sum of $2,164.23 with interest, upon the following statement of facts: the defendants executed and delivered two certain promissory notes dated December 2nd, 1911, payable at the Perkiomen National Bank, East Greenville, Pa., to the order of C. H. A. Dissinger Bro. & Co., due four months after date: one note was given for $720.00 and the other for $1020.00; also two other notes dated December 5th, 1911, due ninety days after date, payable at the same place and to the same persons, one note was given for $194.23 and the other for $230.00. These notes were endorsed by C. H. A. Dissinger Bro. & Co. to the National Alumni for a valuable consideration and before maturity. These notes when due were presented for payment at the Perkiomen National Bank, East Greenville, Pa., and payment thereof, upon demand, refused.

The contention of the defendants is that the notes for $720.00 and $1020.00 were received by the plaintiff from one whose title thereto was defective and also that the plaintiff was not a holder of the notes in due course; as to the notes for $230.00 and $194.23 the contention is that the plaintiff was not a holder in due course. The jury rendered a verdict for the defendants. Rules were entered by the plaintiff to show cause why judgment should not be entered non obstante veredicto, after request for binding instructions were refused, and also for a new trial. The reasons assigned in support of plaintiff's rule for a new trial were:

First: The verdict was against the law.

Second: The verdict was against the evidence.

Third: The verdict was contrary to the weight of the evidence.

Fourth: The Court erred in refusing binding instructions for the plaintiff.

The principal reason assigned then raises the question whether or not the Court committed error in refusing

binding instructions for the plaintiff. Upon the trial the plaintiff offered the notes in evidence and then rested. The defedants offered testimony relative to the two notes of $720.00 and $1020.00 respectively for the purpose of showing that the notes were given to Dissinger Bro. & Co. for the purpose of renewing original notes which had been discounted at the First National Bank of Wrightsville, Pa., and had been protested. That Dissinger Bro. & Co. instead of using the notes for renewal, as requested by the defendants, at the First National Bank of Wrightsville, Pa., negotiated the notes to the plaintiff. The burden then shifted to the plaintiff to show that it acquired the notes "fairly and paid value." This then raised questions of fact to be determined by a jury. In Schultheis vs. Sellers, 223 Pa. St., Page 513 (1909), which was an action of assumpsit brought by the endorser against the maker of a promissory note, Mr. Justice Mestrezat in passing upon a rule absolute for want of a sufficient affidavit of defense, used the following language: “Almost a century ago, in Holme vs. Karsper, 5 Binney, 469, it was held in an action on a promissory note that the holder was required to show the consideration he paid for it and how it came into his hands where the defendant proved that it was put into circulation fraudulently. This rule has been recognized and enforced in subsequent decisions. In Lerch Hardware Company vs. First National Bank of Columbia, 109 Pa. 240, it is said in the opinion of the Court (p. 244): "To support an action by the endorsee of negotiable paper, against the maker, in the first instance it is only necessary for the plaintiff to put the paper in evidence. Then if the defendant proves that the paper was put in circulation by fraud or undue means his defense will prevail, unless the plaintiff establishes that he acted fairly and paid value." This is now the statutory declaration of the law, Section 59 of the Act of May 16, 1901, P. L. 194, providing: "Every holder is deemed, 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 title as holder in due course.'

In Second National Bank of Pittsburg vs. Hoffman,