The plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which the Court made absolute. The defendant took this appeal, and assigned as error the making absolute of the

pany, that he was not to be called upon to pay 5. There is an utter failure to clearly and speany of said deferred instalments of purchase cifically set forth the alleged oral representations money until after the sale of the town lots in the and the circumstances under which they were town of Richlands, Virginia, as set forth in the made. deeds of trust referred to in the promissory notes, and it was owing to such representation that said February 22, 1897. WILLIAMS, J. The plaindefendant was induced to purchase said town tiff was the seller and the defendant was the buylots in the town of Richlands, and sign said deeds er of certain town lots in the village of Richof trust and promissory notes upon which suit lands, Tazewell county, Virginia. A portion of has been brought." the purchase money was not required to be paid at the date of the sale but was deferred and made payable one-half in one year and one-half in two years thereafter. Notes were given by the defendant for these deferred payments which were under seal, and made payable to the plaintiff company "or its assigns." They each contained a recital of the fact that the payment of the notes fendant and wife to Frank M. Dick, bearing even was secured by a trust deed executed by the dedate with the note. The last of these notes fell due in May, 1892. This action was brought in January, 1896, and copies of the notes with their recitals were incorporated into the plaintiff's statement. The defendant filed an affidavit of deficient, and judgment was fence which the Court below held to be insufdefendant for this reason. entered against the This appeal depends on the correctness of this ruling of the learned Judge.

rule.

J. Bayard Henry, for appellant.

Parol evidence is admissible to show a contemporaneous verbal agreement which induced the execution of a written agreement, although it may have the effect of varying or changing the

terms of the contract.

Greenawalt v. Kohne, 85 Pa. 369.
Bown v. Morange, 108 Id. 69.
Martin v. Fridenberg, 169 Id. 447.

In this case it is not the alteration of written instruments which is sought, but an explanation of the terms and conditions upon which they were given.

Although parol evidence should not be allowed to alter written instruments, it may be ad- execution of the notes and the ultimate liability It will be noticed that the affidavit admits the mitted to explain a portion of a contract which of the defendant for their payment, but sets up a seems incomplete; and where there is a positive averment in the affidavit of defence that a contemporaneous oral agreement induced the signing of the written one, the affidavit is sufficient.

Keough v. Leslie, 92 Pa. 424.

in which the notes were signed. This agreecontemporaneous parol agreement on the faith ment is alleged to be that the lots were to be at once reconveyed to a trustee who should hold them as a security for the sums due upon the

J. C. Jones, (L. W. Barringer with him), for notes, and who should exhaust the security thus appellee.

The oral representations set up by the defendant are not a sufficient defence, because,

I. It would appear that they are in the main, simply the defendant's construction of the clause of the deed of trust set out in the affidavit of defence.

furnished before the payment of the notes should be required of the maker. After the lots had been sold and their proceeds applied upon the notes, the balance, if any, remaining due upon the notes after such application was all that the defendant was to be called upon to pay. The affidavit further alleges that the trust deed con2. It does not appear by what officers of the veying the lots to Mr. Dick to hold as security plaintiff company the defendant was assured for the notes and authorizing their sale by him there would be no personal liability on account if the notes were not paid at maturity, was duly of the promissory notes, nor does it appear that executed and delivered, that the lots are still the officers giving the alleged assurance had any held by the trustee under the arrangement stated, authority to do it. and that before resort should be had to his per

3. It is not alleged that these representations sonal responsibility, the said lots should be sold were fraudulently made. in accordance with the agreement and the balance, if any, remaining due should be ascertained.

4. It does not appear that the alleged assurance as to personal liability was anything more than an expression of an opinion as to the probable happening of a future event.

This affidavit states a good defence and one which it is competent for the defendant to make.

It was a mistake therefore for the Court below Oct. '96, 183. Supreme Court.

to enter judgment against the defendant for want of a sufficient affidavit of defence.

October 21, 1896.

Smith v. Wachob et al.

-Judgment confessed- Practice.

The existence of a contemporaneous parol Judgment—Affidavit of defence-Promissory note agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made differing in important particulars from those contained in the paper, and after the paper has been signed attempt to compel literal compliance with its terms regardless of the contemporaneous agreement without which it would never have been signed at all. Among the more recent cases in which this has been distinctly declared are Keough v. Leslie, 92 Pa. 424; Martin v. Kline, 157 Pa. 473; Martin v. Fridenberg, 169 Pa. 447. These cases are not in conflict with Clark v. Allen, 132 Pa. 40; Ziegler v. McFarland, 147 Pa. 607, for in these cases the agreement Appeal of J. M. Hine, from the judgment of set up was wholly inconsistent with the terms of the Common Pleas of Indiana County, in overthe note. The written contract, and the alleged ruling a motion to open judgment and let the parol contract set up as the inducement to its defendant in to make defence.

When a judgment confessed upon a note has been opened as to one of two defendants and an issue framed as to whether he had signed the note or not, and the verdict at the trial is against him and a rule for a new trial has been discharged, but no judgment entered on the verdict, another application to open the judgment is ineffective, the judgment being already opened. The proper practice would be a motion for a re-argument or to rescind the order discharging the rule for a new trial and to enlarge the issue to the extent desired.

execution were so inconsistent that both could

Want of consideration is not a defence in an action on an accommodation note in the hands of a third party who has taken it as collateral security for an antecedent debt.

After a third trial of an issue whether the defendant had

executed a judgment note or not, a petition to open the judgment on the ground of a new defence on after discovered evidence, when the defence was developed at the second trial and no effort was then made to take advantage of it, will be dismissed.

The petition in support of the motion alleged not stand. In the case before us this is not true. that judgment was entered on January 31, 1894, The note is left in full force by the averments of on a note dated February 27, 1893, made by C. the affidavit of defence which set up a pledge of O. Wachob and J. M. Hine, to W. R. Smith. the lots for the balance due upon them as shown On February 5, 1894, J. M. Hine, one of the by the notes. The notes recited this pledge defendants, presented a petition alleging that he made for the payment of the money due upon had never signed the note and asked for an issue them. The only question at issue between the to try whether he had signed the note in quesparties is as to when the pledge was to be tion or not. The Court granted this petition.

en

forced. The affidavit alleges it was to be done The answer filed by plaintiff to the petition set in the first instance and before recourse should forth, inter alia, that on a prior trial the defendbe had to an action against the maker of the ant did not question the consideration, but denotes. If this was so, as we must assume it to fended upon the ground that he had never signbe for the purposes of this motion, then it is ed the note; that defendant knew the consideraclear that this action is prematurely brought. tion; that respondent did not admit upon the trial Upon this question the defendant must be per- that there was a want of consideration for the mitted to go to the jury. If he can establish the note in question, but his testimony shows, so far agreement he alleges he has a good defence and as he was permitted to give it, that there was a will be entitled to a verdict in his favor. The judgment is reversed and the record remitted. A procedendo is awarded.

W. D. N.

valid consideration.

Upon the trial of this issue the plaintiff testified that he had endorsed for Wachob a $1500 note, he having borrowed that sum from the Indiana County Deposit Bank. The note was dated November 30, 1892, and was for 90 days. The day before this note matured the defendant Wachob, delivered to the plaintiff the note which is the subject of the present suit.

In the course of cross-examination of plaintiff in the second trial of this issue it was developed that the defendant Wachob had confessed judg

ment to the plaintiff in this case for $1500 about The maker of an accommodation note cannot a year previous to the date of this note. On the set up the want of consideration as a defence third trial of the issue the verdict was against against it in the hands of a third person, though defendant. Before judgment had been entered it be there as collateral security merely. He who on the verdict, the defendant petitioned the Court chooses to put hin self in the front of a negotiato open the judgment entered against him for ble instrument for the benefit of his friend, must the reason that the plaintiff had admitted in his abide the consequence (12 S. & R. 382), and has cross-examination that he had not given or sur- no more right to complain, if his friend accomrendered anything to the defendant Wachob modates himself by pledging it for an old debt, when he had delivered him the note in question. than if he had used it in any other way." The Court overruled the motion to open judgment and defendant appealed, assigning as error the action of the Court.

Lord v. The Ocean Bank, 20 Pa. 386.

January 4, 1897. FELL, J. This appeal is from

D. B. Taylor, (with him S. M. Jack and W. the order of the Court of Common Pleas dis

T. Cline), for appellant.

charging a rule to open a judgment. The proceeding was irregular, and the application was The defendant should not be held on this judg- without merits on the facts. The judgment was ment inasmuch as there was no consideration by confession, and was entered in January, 1894. passed for the note. It was really a matter of A rule to show cause why it should not be opened securing the appellee for a debt he might be as to the defendant Hine, who is the appelcompelled to pay by reason of a joint note for lant here, was made absolute in June, 1894, and the same sum given by appellee and the defend- the issue was limited to the inquiry whether he ant Wachob to the Indiana County Bank.

Accommodation paper is such as is made without consideration. It represents a loan of credit. Between the original parties it is open to the defence of want of consideration.

Carpenter v. Bank, 106 Pa. 171.

If it appears that there is no sufficient consideration for it, it will be void and considered as a gratuitous promise.

Bixler v. Ream, 3 P. & W. 284.

had signed the note. There had been three trials of this issue, and at the last trial the verdict was against him. A rule for a new trial had been discharged, but judgment had not been entered on the verdict, when the second application to open the judgment was made. This application was to open a judgment which was open, and as to which an issue had been framed and a verdict rendered. A motion for a reargument or to rescind the order discharging the rule for a new

the way for an application for the relief sought.

One who takes an accommodation note as col-trial and to enlarge the issue would have opened lateral security for an antecedent debt is not a holder for value.

Royer v. Keystone Bank, 83 Pa. 248.

But had the proceeding been regular the relief could not have been granted. The new ground of defence set up was known to the defendant at Hine could not be held beyond the amount, the time of the second trial. It is alleged in the if any, which Smith advanced to Wachob, or as- petition that it was developed at that trial by sumed liability for cn account of Wachob, upon cross-examination of the plaintiff. No effort was the strength of Hine's name being upon the note. made to take advantage of it then, or at the next Altoona Bank v. Dunn, 151 Pa. 231. trial, which took place six months later. It was While the fund is within its grasp the Court not a new ground of defence based on after dishas power to control, reverse, modify or over-covered evidence, and it was not a ground of turn its judgments.

defence at all.

Want of consideration is not a defence in an action on an accommodation note in the hands of a third party who has taken it as collateral

J. N. Banks and Frank Keener, (M. C. Watson security for an antecedent debt. The maker or with them), for appellee. endorser of accon'modation paper may defend

The maker of accommodation paper, pledged on the ground of fraud in the procurement or for an antecedent debt, cannot set up as a de- use of the note, and in this respect it is governed fence that it was given without consideration; by the same rules that apply to commercial paper this would defeat the very purpose for which it generally, but he cannot set up as a defence that was made. it was given without consideration and pledged

Carpenter v. National Bank of the Republic, 106 for a pre-existing debt. The decision in Royer v. Keystone National Bank, 83 Pa. 248, is in har

Pa. 172.

mony with the rules stated in Lord v. Ocean taken by the said Harris Flomenhaft upon the Bank, 20 Pa. 384, and numerous other cases, that Commonwealth, to show cause why the forfeitaccommodation paper is a loan of the maker's ure of recognizance should not be remitted, credit without restriction as to the manner of its judgment stricken off, and vend. ex. stayed, in use. The syllabus in that case may be mislead- an action of assumpsit sur recognizance, brought ing, as it states the rule broadly and without ref- by the Commonwealth against Solomon Fogelerence to the facts of the case. It does not ap- man and Harris Fiomenhaft, to recover penalty pear from the report of the case that the note of $1200. was an accommodation note, but it does appear that it was given for a specific purpose and fraudulently used by the payee, and the decision is distinctly based upon that ground. See Carpenter v. Bank, 106 Pa. 170.

Under the several Acts of Assembly in regard to the matter, there is no appeal from the refusal of the Court of Quarter Sessions to remit a forfeiture of a recognizance.

The right of appeal given by the statute is confined to the jurisdiction of the Courts of Common Pleas.

Commonwealth v. Oblender, 135 Pa. 536; and Com monwealth v. Bird, 29 WEEKLY NOTES, 14, followed.

In a suit upon a recognizance, the entry of a forfeiture stands for proof of all the steps necessary to complete the forfeiture, including the fact that the defendant and his bail were duly called and did not appear and answer; and the liability of the recognizers is absolutely fixed thereby, so that relief can only be obtained by petition to the Court to remit the forfeiture for cause shown.

The petitioner cannot allege as cause for remittance of the recognizance matter which might have been made a defence to the action, when he has failed to make such defence, and judgment has been entered against him and execution issued.

The Court of Quarter Sessions may, in its discretion, remit or modify the forfeiture of a recognizance after judgment; but if it refuses to do so when the cause alleged might have been pleaded in defence to the action, it is

The facts of this case are set forth in the opinion of the Court.

The Court below, HARE, P. J., having discharged the rule, the petitioner took this appeal, assigning for error this action of the Court.

Louis Paul Brenan, (H. Homer Dalbey with him), for appellant.

By the record, the surety was only bound for the appearance of the defendant, during the term at which the recognizance was taken; and the respite of forfeiture from term to term without the application and consent of the said surety was a waiver of the forfeiture by the Commonwealth.

Com v. Oblender, 135 Pa. 530.

Mishler v. Com., 62 Id. 61.

Act of April 22, 1846, sec. 4, P. L. 477.

C. B. Fife, (George S. Graham, district attorney, with him), for appellee.

No appeal lies from an order of the Quarter Sessions refusing to remit a forfeited recogniThe entry of forfeiture is conclusive as

zance.

to the proceedings.

Bross v. Com., 71 Pa. 262.
Fox v. Com. 81* Id. 511.

Com. v. Bird, 29 WEKLY NOTES, 14.
Foulke v. Com., 90 Pa. 257.

The argument of the appellant is based wholly upon proceedings subsequent to the forfeiture, which involve nothing more than questions relating to the merits of the case; and these have already been passed upon by the Court below, and decided adversely to the appellant. This decision is final."

Even were it not final, the proceedings subsequent to the forfeiture could not affect in any way the legality of the forfeiture, and are therefore irrelevant to the question before the Court.

February 16, 1897. RICE, P. J. In November, 1895, an action of assumpsit was brought against a forteited recognizance Harris Flomenfelt on for the appearance of one Fogelman to answer a criminal charge. The statement set forth a copy of the recognizance, and averred that it was duly adjudged and decreed to be forfeited on DecemAppeal of Harris Flomenhaft, bail of Solomon ber 30, 1890. Flomenhaft filed an affidavit of deFogelman, from the order of the Quarter Ses- fence, in which he admitted that he entered into sions of Philadelphia County, discharging a rule the recognizance, and did not deny that it was

not reversible error.

duly adjudged to be forfeited, as alleged in the be an appeal to the Supreme Court. But in Bross plaintiff's statement. It is unnecessary to refer v. Comth., 71 Pa. 262, it was held, that the Act to the other matters alleged in his affidavit, fur- gave an appeal only when the order was made in ther than to say that they were wholly insuffi- the Common Pleas. Said WILLIAMS, J.: "The cient to constitute a defence to the action. A rule suggestion in the case of Comth. v. Rhoades that for judgment for want of a sufficient affidavit of from the order of either Court there is an appeal defence was granted, which aiter argument was is a mere dictum not warranted by the language made absolute on June 12, 1896. No appeal was of the proviso or by any other provisions of the taken from this judgment, but on October 27, statute which are too plain to admit of any doubt 1896, after two fi. fa.s and a vend. ex. had issued as to their meaning." To the same effect are and the defendant's real estate was about to be Com. v. Oblender, 135 Pa. 336, and Com. v. sold, he applied for and obtained a rule to show Bird, 144 Pa. 194. Treating the present appeal cause why the forfeiture of the recognizance as a substitute for a certiorari, and not as an apshould not be remitted, and the judgment be peal under the Act of 1783, we discover no error stricken off. It is to be observed, further, that in the record requiring a reversal of the judgalthough the defendant had knowledge, for a long ment. Where there is a regular and formal fortime, of the forfeiture, he made no effort to have feiture of a recognizance the liability of the reit remitted, nor to produce Fogelman for trial. cognizors is absolutely fixed thereby, and relief On the contrary it appears by the original affi- therefrom should be sought by petition to the davit of defence that he has departed the coun- Court to respite the recognizance for cause to be try. shown under the Act of 1783: Foulke v. Com., The present appeal was taken from the order 90 Pa. 257. In a suit upon a recognizance the discharging the above mentioned rule. entry of a forfeiture stands for proof of all the

As the order refusing to remit the forfeiture steps necessary to complete the forfeiture, upon was entered in the Court of Quarter Sessions, it the principle omnia praesumuntur rite esse acta; is questionable whether an appeal-using that hence it must be taken for verity that the determ in its original sense-lies. The Act of fendant and his bail were duly called and did not December 9, 1783, 2 Sm. L. 84, provided that all appear or answer: Fox v. Com. 81* Pa. 511; Com. recognizance forfeited in any Court of Quarter v. Basendorf, 153 Pa. 459. Sessions should be sued for and be recoverable Prior to our procedure Act no evidence was in the Court of Common Pleas of the same coun- admissible under the pleas of nil debet and payty, "which Courts may, and they are hereby em- ment but what tended to show, either that the repowered to order the said recognizance to be cognizance was not forfeit, or that it had been levied, moderated or remitted on hearing the cir- remitted by lawful authority: Com. v. Nowland, cumstances of the case according to equity and 10 S. & R. 355. But it was always competent to their legal discretion." The next section provid- defend the action upon the ground that there was ed that the Supreme Court "may hear appeals no forfeiture in fact if the record did not show from such orders or judgments of the Courts of a forfeiture. Such defence involves no impeachCommon Pleas on the said forfeited recogni- ment of the record. It is simply a denial of a zances at the next ensuing term after such judg- breach, and of a forfeiture of the recognizance ment given, but not afterwards, and finally decide and an offer to sustain the denial by an appeal on the same." By the Act of April 22, 1846, P. to the record. Upon this feature of his present L. 477, exclusive jurisdiction of suits upon re- application the defendant had an opportunity to cognizances forfeited in the Court of Quarter be heard when he filed his affidavit of defence. Sessions of Philadelphia was conferred upon that If, as he now alleges, the record shows that the Court; and by the prior Act of April 4, 1837, P. recognizance was not duly and properly forfeitL. 378, it was provided that the Court should ed on December 30, 1890, but that the case was have power to moderate and remit the same as not called up until 1894, or thereabouts, he might, effectually as the Courts of Common Pleas might and should, have made that defence to the action. do. The Commonwealth alleged, that the recognizUnder the Act of 1783 it would seem that the ance was duly forfeited, and that the record sued Court of Common Pleas, as well as the Court of upon showed it. The defendant did not see fit Quarter Sessions, had jurisdiction of an appli- to deny these allegations then, nor to appeal from cation to remit or moderate the forfeiture of a re- the judgment within the statutory period. For cognizance entered in the latter Court; and it the purposes of the rule for judgment they were was suggested in Comth v. Rhoads, 9 Pa. 488, therefore to be taken as admitted facts, and the that from the order of either Court there would judgment was entirely regular under the plead