Mellor

This action was instituted to foreclose a mortgage given to secure the payment of a promissory note for $5,000, dated June 6, 1922, payable on or before one year after date, and bearing interest at the rate of six per cent per annum. Both instruments were executed by Lyeurgus Orr, who died prior to the commencement of this action. The answer denies the execution of the instruments and, “as a further and separate defense herein and by way of counterclaim,” alleges that plaintiff’s assignor, John R. MacLean, for a valuable consideration, on June 6, 1922, executed and delivered to Orr a promissory note for $5,000, payable thirty days after date, and bearing interest at six per cent per annum; and that the amount thereof became due and payable prior to the assignment by MacLean of Orr’s alleged note. The complaint alleges and the court found that MacLean assigned the Orr note and mortgage to A. P. Knox July 8, 1922, and that on the same day Knox assigned them to the plaintiff.

At the trial the plaintiff introduced proof to establish the execution of the instruments, their assignment to him, and that the note had not been paid. The proof of the defendant was equally formal as to the…