Suit on a promissory note for $5000, drawn by defendant to the order of James Emott, and by him indorsed. Defense, exception of lis penclens, general denial, and a special denial of the legal ownership and possession of the note by plaintiff.

First — The exception of lis pendens is abandoned.

Second — The averment of the defendant that the note belongs to *449James Emott, and not to plaintiff, if it could constitute any defense, is not established, but on the contrary is disproved.

Third — -The point made that the iilaintiff has not proYed the indorsement of Emott, and therefore has not proved the transfer of the note to himself, is untenable. In her answer the defendant admits her signature to the note, and proceeds to declare, “that since its maturity, James Emott, the indorser of said note, as owner thereof obtained possession of the same,” etc. The attorney of plaintiff, called as a witness by defendant, proved also that the note was sent to him for suit by James Emott, on behalf of the plaintiff.

The appeal is clearly for delay. Let the judgment be affirmed with five per cent, damages for frivolous appeal and costs.