This action was brought originally by The Market Exchange Bank Co. in Franklin Common Pleas against Samuel H. Delong and A. C. Thompson for judgment on two cognovit notes.

It appears that “The Byers Co.” was payee and notes were negotiated by one Robert C. Byers and no endorsements of the real payee appears on the notes.

The Bank took judgment on the notes by confession and in the same term of court the court overruled a motion to vacate the judgment which ruling was affirmed by the Appeals.

Delong and Thompson, in the Supreme Court, contend:

. 1- . That to vacate a judgment by confession it is not necessary to prove an actual sufficient defense but only a seriously litigitable issue.

2. That the Bank did not have legal title to the notes and therefore could not take advantage of the warrant of Attorney in taking judgment.