of forming a new channel road-bed and course | ciled in Hancock County, West Virginia. On of said creek without compensation to plaintiff August 25, 1879, the County Court of said county or security therefor." and State appointed the relator (she being the The bill prayed that defendants, their agents father's sister) guardian of the person of said and servants be enjoined and restrained from minor. The mother married a second time; going upon plaintiff's land for building said removed to Pennsylvania in September, 1879, bridge, or diverting the course of said creek where she resided until her death in December, until compensation be given or security therefor. 1883. For over two years prior to the guarWm. Hopple, Jr., for the motion. dian's appointment and until June, 1880, the We have not an adequate remedy at law; for child resided with respondent and his wife (a should we seek in a suit against the city to recover maternal aunt) in Allegheny County, Pa. She damages for the taking of our land, we should was then given into the custody of her guardian be met with the fact that the ordinance of Coun- in West Virginia, where she remained until cils does not authorize a widening of the street. September, 1883. She then returned to reChas. B. McMichael, Assistant City Solicitor, spondent on a visit and remained for some contra, read and filed the following affidavit:months, with the guardian's consent, to attend "John H. Dye, being duly sworn, etc., says: | school; after which respondent refused to perI am Registrar of the Department of Surveys, mit the relator to take the custody of the child, and as such have custody of the city plans. That who was nearly twelve years of age, and who the confirmed plan of the city showing German- preferred to remain with respondent and his town Avenue at the crossing of Cresheim Creek fixes the width of the avenue at 60 feet. That any delay at present in the construction of the bridge would render the road almost impassable during the coming winter." Common Pleas—Law. C. P. No. 2 of Allegheny Co. September 27, 1884. Commonwealth ex rel. Mary M. Abrams v. Archibald Drynan. wife. The relator prayed that custody of the person of her ward be awarded to her. Much testimony was taken as to previous treatment of the child by the guardian and by the respondent; as to their personal qualifications and ability to provide for her; and as to the advantages and disadvantages to the child. W. C. Erskine, for the respondent. The Court has no power to deliver a minor who is a resident of this State to a foreign guardian. The statute prohibits it. Act of March 29, 1832, Purd. Dig. 412. Rice's Estate, 9 WEEKLY NOTES, 255. The domicile of the child is the domicile of the father at his death. The mother did not change it before her second marriage and could not afterward. A guardian cannot change his ward's domicile. School Directors v. James, 2 W. & S. 568. But A foreign guardian has no absolute right to the custody of the ward's person. Courts of chancery may examine into the matter, and may decree whatever is best for the child. the Court, in the exercise of that comity which recognizes the laws of other States, should consider the petitioner's status of foreign guardian Foreign guardian- When entitled to custody of as an important element in determining the cusward's person-Comity of States-Act of tody of the child; and if it came here for educaMarch 29, 1832, sec. 7-Chancery powers-tion, or by stealth, force, or fraud, it should be Domicile. restored to the guardian. Habeas corpus, at the relation of Mary M. Abrams, guardian of Maggie R. Abrams, commanding Archibald Drynan to produce the said minor. The facts were as follows: The father of the child was, at his death in August, 1876, domi Woodworth v. Spring, 4 Allen, 321. Stuart v. Moore, 4 Law Times, N. s. (Eng.) 382. The State v. Cheeseman, 2 South (N. J.), 445. The Act of 1832 was only an enactment of the recognized law of the land prior thereto. Story, Conf. Laws, sec. 499 et seq. 504. 2 Kent (12th ed.), p. 227, note (d). Leonard v. Putnam, 51 N. H. 252. A non-resident guardian of the person and estate of a non-resident minor appointed by the probate court of another State may sue in the courts of this State under Act of April 21, 1856, and may have the domestic guardian of the minor's person and estate discharged, though the minor's legal domicile is here. Taney's Appeal, 1 Out. 74. Rice's Estate, supra, only decided that the petitioner had no standing in Court because her petition did not set forth the requisite facts under Acts of 1856 and May 25, 1871. See last paragraph of the opinion, and also Goldsmith's Estate (37 Leg. Int. 465), decided at same time. THE COURT. I have no doubt that the domicile of the child is in West Virginia. So far as has been shown by the evidence neither party has such material advantages over the other to offer as will weigh with the Court. So far as their circumstances are concerned they are substantially on an equality. Nor have I any doubt that either party would do all in his or her power for the child. I have never understood the Act of 1832 to prohibit the Court from recognizing the doctrine of the comity of States. Prima facie the guardian appointed by the courts of West Virginia is entitled to the custody of the child. I have no doubt she will be well treated by the relator; otherwise I would not order that the child be delivered to the foreign guardian. The relator should pay the docket costs as respondent has maintained the child without charge. Prayer of relator's petition granted. Vesturme v. Way. Practice-Commission to examine witness — Time of issuing-Court will not pass upon validity prior to the trial. Rule to show cause why plaintiff's commissions should not be filed and used at trial with like effect as if issued and returned after filing of plea. This was an action of ejectment wherein one of the links in plaintiff's chain of title must be A established by witnesses residing abroad. commission to examine such witnesses had been regularly issued after the filing of the declaration and returned, but prior to the filing of defendant's plea. The present rule was then obtained. It appeared that the Statute of Limitations had nearly set its bar to the claim, and if plaintiff went to trial and the commission should be rejected on account of the above informality he would necessarily lose the suit and all remedy would be gone. If, however, the validity of the commission was passed upon by the present rule, even if it was rejected, plaintiff would still have time to issue another before the statute had set its bar. WEEKLY NOTES OF CASES. Company, and that by reason of certain business relations with the company he was unwilling to push the collection of the note, but that he, Meily, could collect it, and that it was agreed that the note should be transferred to him for VOL. XV.] THURSDAY, NOV. 20, 1884. [No. 15. collection; that at his own suggestion the note Phillips v. Meily. Promissory notes-Evidence-Parol testimony to contradict a written instrument-Fraud. Parol evidence is not admissible to contradict or vary written instruments unless (1) there has been fraud, accident or mistake in the creation of the instrument itself, or (2) unless there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed. In a suit upon a promissory note the defence set up was that the note in suit was given as a memorandum or receipt for another note which the maker had taken from the plaintiff to collect for him. This was denied by the plaintiff, and the Court allowed the jury to determine this question: Held, that as there was no evidence to show that the pro. note was signed by the defendant upon the faith of any promise or assurance by plaintiff that he would not ceed to collect it, or use or treat it as a promissory note, and as, on the contrary, defendant's evidence only showed that the note had been made and delivered without any thing being said by either party as to the use to which it was to be applied, but merely that the note was not to be paid according to its terms but only upon the contingency of plaintiff's failure to collect another note, the evidence was not admissible as a defence. The evidence in the above case on behalf of the defendant consisted of his unsupported oath, which was contradicted by the plaintiff's oath, and the persuasive evidence furnished by the note itself. There was no evidence which would have warranted a Chancellor in reforming the note. The case should therefore not have been submitted by the Court to the jury but the Court should have directed a verdict for plaintiff. Error to the Common Pleas of Lebanon County. Assumpsit, by John Phillips against George F. Meily, upon a promissory note for $3000, drawn by defendant to the order of plaintiff. On the trial, before MCPHERSON, J., the following facts appeared: Plaintiff testified that on December, 1874, he took to the defendant, Meily, a note which he held against the Union Forge Company, which note had been originally made to his son for a book account and transterred to the father in part payment of some real estate purchased from him; that Meily purchased this note, giving in payment the note in suit. On the other hand, Meily testified that about April, 1874, Phillips came to him and told him that he held a note against the Union Forge in suit was drawn up, to be held by the plaintiff as a memorandum of the transaction; that the Union Forge Company failed in 1875, and nothing was paid on their note. The plaintiff requested the Court to instruct the jury, inter alia, that the evidence in the cause was not sufficient, as a matter of law, to submit the case to the jury for determination, but that under all the evidence the plaintiff must recover the amount of the note with interest, The Court declined so to charge, and instructed the jury, inter alia, as follows: : "On the other hand, if defendant did not buy the note, but if, as he says, it was simply transferred to him for collection, and the note was given to Mr. Phillips as a memorandum, in the way and for the purpose detailed to you, then to allow a recovery on the note, as if it was an absolute transaction, would be such a fraud as the law would not tolerate and as juries would not enforce.' Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error the refusal of the Court to affirm his point as above and the portion of the charge quoted. Josiah Funck and Grant Weidman, for the plaintiffs. A writing cannot be varied, altered, or contradicted by parol evidence, except in clear cases of fraud, accident, or mistake, and such fraud, accident, or mistake must exist in securing the execution of the written contract. Thorne et al. v. Warfflein, 4 Out. 519. Caley v. Phila. & Chester R. R. Co., Id. 363. If evidence to contradict a writing is admitted and it is insufficient to establish fraud, accident, or mistake, it is the duty of the Court to withdraw it from the jury. Miller v. Smith, 9 Casey, 394. Juniata Building & Loan Association v. Hetzel, 14 Jno. Benson (C. P. Miller and Geo. B. Shock with him), for the defendant. Where an instrument in writing is attempted to be used in a manner not contemplated by the parties at the time of making, it is a fraud, and parol testimony will be admitted. Hoopes v. Beale, 9 Norris, 82. Parke v. Chadwick, 8 W. & S. 98. The evidence of one witness is sufficient. Prowattain v. Tindall, 30 Smith, 295. June 9, 1884. THE COURT. This was an | (14 WEEKLY NOTES, 431): "Now that parties action of assumpsit upon a promissory note. are competent witnesses, each may oppose his The note was not only signed, but drawn by the oath to the other's, and certainly when written defendant and delivered to the plaintiff. It was contracts or obligations are sought to be imin the usual form of a promissory note, whereby peached by defences purely equitable, the reason the defendant promised to pay to the order of is stronger than formerly for enforcing the rules the plaintiff, one year after the date thereof, of evidence applicable to cases in equity." three thousand dollars, with interest from January 1, 1875. The note was dated April 1, 1874. The defence was that the note was given for a note of like amount, placed by the plaintiff in the hands of the defendant for collection, and was not to be paid unless the note so handed to the defendant was collected by him; in other words, that the note, instead of being an obligation for the payment of money, was intended as a mere receipt or memorandum, and was not to be enforced according to its terms unless the defendant succeeded in collecting the note which had been placed in his hands as above stated. The jury found for the defendant, and the question for this Court is whether the evidence was sufficient to submit to them. If it was, we find nothing to criticize in the manner of its submission. The case rested upon the testimony of the parties, plaintiff and defendant. The latter testified distinctly and clearly to the fact that the note was given for the purpose claimed by him, and for no other. The plaintiff testified quite as distinctly that he sold the Forge Company's note to the defendant and took the note in suit in payment therefor. The corroborating circumstances are of little weight, and incline about as much to the one side as the other. It will thus be seen that the note in suit, supported by the oath of the plaintiff, was allowed to be overcome by the mere oath of the defendant, in a case in which there was neither allegation nor proof of fraud, accident or mistake in the execution and delivery of the note. If this was according to law it must stand, however suggestive it may be of peril to the holders of such securities. The cases in this State in which parol evidence has been allowed to contradict or vary written instruments may be classed under two heads: 1st. Where there was fraud, accident, or mistake in the creation of the instrument itself; and 2d, where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed. To the latter class belong Renshaw v. Gans (7 Barr, 117); Rearich v. Swinehart (1 Jones, 233); and Lippincott v. Whitman (2 Norris, 244). The case last cited was a scire facias upon a mortgage which by its terms was payable in one year. The defendant filed an affidavit of defense in which she set forth that she had agreed to give a mortgage payable in three years; that when she came to sign the papers she discovered that it had been made payable in one year; that she objected to signing it for this reason, and was only induced to do so upon the plaintiff's assurance that he would not foreclose until the expiration of three years. Having sued it out at the expiration of one year this Court held that it was a fraud to attempt to enforce it at that time. Here there was an oral stipulation without which the paper would not have been signed. The same is true of Hoopes v. Beale (9 Norris, 82), and nearly, if not quite all of the cases cited for defendant. There is not a word to show that the note in controversy was signed by the defendant upon the faith of any assurance or promise on the part of the plaintiff that he would not proceed to collect it, or use or treat it as a promissory note. On the contrary, the defendant, when he received the note of the Forge Company, of his own The English rule that parol evidence is inad-motion drew up, signed, and delivered to the missible to vary the terms of a written instrument does not exist in this State. The cases are numerous upon this point; it is sufficient to refer to Kostenbader v. Peters (30 P. F. S. 438). It would perhaps be more accurate to say that the rule has been relaxed, for the guards which this Court has thrown around the modification of the rule have to some extent preserved the rule itself. In the present condition of the law of evidence public policy requires that we should do nothing to increase the facilities for destroying written instruments. As was well observed by our brother TRUNKEY in the recent case of Juniata Building and Loan Association v. Hetzel plaintiff the note in suit without anything being said by either party as to the use to which it was to be applied. The defendant's testimony amounts to no more than that the note was not to be paid according to its terms, but only upon the contingency that he should be able to collect another note from the Union Forge Company. That such evidence is no defence was decided in Hill v. Gau (4 Barr, 493); Anspach v. Bast (2 P. F. S. 356); Hacker v. The National Oil Refining Company (23 P. F. S. 93); Heist v. Hart (Id. 286). There is, however, another and more serious difficulty in the way of the defendant, The de Appeal of Michael B. Holman from a decree of the Orphans' Court of Snyder County, distributing the proceeds of the sale of real estate of Wm. G. Herrold, deceased. Before the Auditor appointed to make distribution (John A. Cronmiller) the following facts appeared : fence set up, if it amounts to anything, must be sufficient to reform the note, and the evidence must be strong enough to justify a Chancellor in doing so. It is only when a Chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true under our practice in Pennsylvania it is accomplished through common law forms. But the fact About the year 1850 Abraham Blasser died, remains that the defence set up is purely equit- seised of a large tract of land situate in Union able, and the Judge ought not to submit the case County. In 1851 partition of the said land was to the jury unless the evidence is such that he made through the Orphans' Court of Union would feel himself bound as a Chancellor to County, and it was decreed to Wm. G. Herrold reform the instrument. With our modification in right of his wife Mary, one of the heirs of of the English rule, now too firmly embedded the said Abraham Blasser, he entering into a in our system to be disturbed, and our Act of recognizance with two sureties in the sum of Assembly which makes every defendant a com- $17,100 to secure, inter alia, the share of Jacob petent witness, the principle above stated is Blasser, a minor therein, and at the same time about all there is left to preserve the sanctity executing a bond to the guardian of the said and force of an instrument of writing, whether Jacob Blasser, for the sum of $2963.67, the that instrument be a deed which is the evidence amount so secured. In 1855 Union County was of a man's title to his home, or an obligation for divided, and Snyder County erected out of the the payment of money. part taken therefrom, all the real estate aforesaid Here, in addition to the plaintiff's oath, we being included within the territory erected into have the persuasive evidence furnished by the Snyder County. On August 10, 1877, Wm. G. note itself. Both are brushed away by the oath Herrold and Mary his wife, united in a mortof the defendant. No Chancellor would reform gage of all their lands, including the above proa writing upon such testimony as is here pre-perty, to Michael B. Holman, the appellant, on sented. The rule is that a Chancellor invariably which a sci. fa. was subsequently issued and refuses to decree on the uncorroborated testimony judgment obtained for $8355.66, on September of a single witness. (Brawdy v. Brawdy, 7 29, 1881. Barr, 157.) The learned Judge should have withdrawn the case from the jury by a binding instruction to find for the plaintiff. Judgment reversed, and a venire facias de novo awarded. Opinion by Paxson, J. W. M. S., Jr. On October 31, 1879, the said Wm. G. Herrold confessed judgment upon the recognizance aforesaid in the Court of Common Pleas of Snyder County in favor of the Commonwealth, suggesting Jacob Blasser for the use of Mary Herrold, for the sum of $7462.44, and on November 13, 1879, the same judgment was entered by confession in Union County. Wm. G. Herrold died intestate February 10, 1880. Letters of administration were taken out on his estate, and an order was May 5, 1884. granted to his administrator by the Orphans' Court to sell all his lands for the payment of his debts. Under this order all his lands, including Liens-Partition. Decedents' estates. six tracts, numbered from one to six, which nizances-Orphans' Court-Judgment index were the lands covered by the above partition, Act of April 22, 1856. Jan. '84, 51. Holman's Appeal. -Recog and bound by the recognizance, were sold. The sales thus made were confirmed by the Court, Recognizances given in the Orphans' Courts of this save as to tract No. 1, concerning which the adCommonwealth, in proceedings in partition, for the pay-ministrator returned that it had been sold to Mrs. ment of the valuation money of real estate accepted in such proceedings, constitute liens upon the land accepted, as against subsequent purchasers, mortgagees, and judgment-creditors, notwithstanding the fact that they are not indexed upon the judgment index or in some index kept in the Orphans' Court office for that purpose. The Act of April 22, 1856 (P. L. 532), requiring judgments, recognizances, etc., to be entered in "a book to be called the judgment index," in order to constitute a lien, does not apply to recognizances in partition in the Orphans' Courts as above; nor does it require any index Mary Herrold, widow of the deceased, for $6000, who claimed to be the first lien creditor to the amount of the judgment on the recognizance above stated. Exceptions were filed to this return, and upon the petition of Michael B. Holman, the appellant, an issue was awarded to ascertain whether this lien had been paid. The proceeds of the sales being before the in the nature of a judgment index to be kept in the offices Auditor for distribution, he found upon the above of the Orphans' Courts. facts that the recognizance was a prior lien on |