
    Essick’s Appeal.
    On a rule to open a judgment, entered on a judgment note, the defendant testified that his signature to the note was a forgery. His evidence was corroborated by two witnesses who testified that, in their opinion, the signature was not that of the defendant. A witness to the note testified that, when he signed, the defendant’s name was not upon the note. A witness for the plaintiff, the party for whose accommodation the note was given, and who had been convicted of forging another note, testified that the defendant did sign the note and described the time and place. Other witnesses testified that the defendant acknowledged that he had signed the note. The court discharged the rule on the ground that Vue preponderance of the evidence was in favor of the validity of the note. . The testimony was not printed in the paper book of the appellant, on the appeal. Held, that the judgment should be affirmed.
    Feb. 15, 1889.
    Appeal, No. 65, Jan. T. 1889, of Jonathan K. Essick, from a judgment of C. P. Chester Co., discharging a rule to open a judgment of the National Bank of Spring City against Essick, at Oct. T. 188Y, No. 1.
    The facts appear by the following opinion of the court discharging the rule, by Waddell, J.:
    “ On Dec. Y, 1885, the National Bank of Spring City entered a judgment in this court for $2,000 against Josiah H. Essick and Jonathan IL Essick, upon a bill single with warrant of attorney attached, dated Nov. 9, 1885.
    “On Aug. 11, 188Y, Jonathan K. Essick, one of these defendants, applied to the court to have this judgment opened, alleging that his signature to the note in question was a forgery. A rule was thereupon granted to show cause why the judgment should not be opened, as regards the said Jonathan K. Essick, and, upon the hearing of this rule, the testimony, offered on the one side and the other, was heard.
    “It appears that the National Bank of Spring City had been discounting various notes presented by Manlove Essick, and by him endorsed. They amounted, altogether, to about $2,000.
    “ The bank, becoming dissatisfied, required these notes to be taken up, when Manlove Essick offered the bank the judgment of his brothers, Josiah H. Essick and Jonathan K. Essick, in payment of the same. This offer was satisfactory, and he furnished the bank the note in question, and took up with it the former notes then in the possession of the bank. The bank procured judgment to be entered upon this note, on Dec. Y, 1885, and issued an execution upon this judgment, on Aug. 11, 188Y. Thereupon, Jonathan K. Essick made application to the court to have the judgment opened, •and to be let into a defense. The note purports to have been .signed by Josiah H. Essick and Jonathan IL Essick, and the signatures witnessed by ~W. E. Rhoads and H. B. Miller. Mr. Rhoads has no recollection of the transaction whatever, although he admits ■the genuineness of his signature. Mr. Miller remembers seeing Josiah’s signature to the note, but says Jonathan was not then present, nor was his namevthen to the note. Neither of these witnesses ■saw Jonathan sign the note. The signatures were secured by Man-love Essick, if secured at all, and the note delivered by him to the bank, as we have before stated.
    “Josiah admits his signature to be genuine, but Jonathan positively denies his. In corroboration of his denial, he calls two witnesses, who express the opinion that the name of Jonathan K. Essick, to the note, is not the handwriting of Jonathan; and he •also shows, by one of the witnesses, who is represented to have witnessed his signature, that he, Jonathan, was not present when he signed his name as a witness, nor was his, Jonathan’s, name, then ■on the note.
    “ The other witness to the execution of the note was unable to remember anything about the transaction. On the other hand, Manlove Essick testifies most positively, that Jonathan did sign the note, and describes the time and place; another witness testifies that he heard Jonathan say he was sorry Manlove had made an assignment, for he had signed a large note for him; the wife of Manlove testifies that she heard Jonathan say he was on a two thousand dollar note for her husband, and he wanted him to help him pay the Spring Oity note, as it was too large for him to pay.
    “ Davis Knauer, a director of the bank, testifies that, at the request of the bank, he called upon the drawers of the note, in November, 1885, to ascertain whether it was genuine. He then saw Jonathan, and enquired whether or not he had signed a two thousand dollar note for his brother, and he said he had.
    “In rebuttal, Jonathan offered testimony to show that the note •could not have been signed by him at the time and place designated by Manlove; again, that, in a certain conversation, Manlove stated, in the presence of three witnesses, that Jonathan had not put his name to the note. And further, that Jonathan had not received any ■of the proceeds of the note in question, but that they had been •applied to the páyment of certain over-due paper of Manlove’s, held by the bank.
    “ Upon this testimony we are asked to open this judgment, and ■submit it to the consideration of a jury. The relief demanded is in equity, and the applicant must make out such a case as would justify a chancellor in entering a decree against the validity of the note in question. In Phillips v. Meily, 106 Pa. 5M, where the question was, whether the note in suit was intended as an obligation for the payment of money, or as a mere receipt, the court say: ‘ The judge •ought not to submit the case to the jury, unless the evidence is such that he would feel himself bound, as a chancellor, to' reform the instrument.’ The rule is, that a chancellor invariably refuses to decree, on the uncorroborated testimony of a single witness. Brawdy v. Brawdy, 7 Pa. 157. Neither will he do so upon the unsupported oath of one of the parties to the instrument, on the one side, and the opposing and contradictory oath of the party on the other side. Jackson v. Payne, 5 Cent. B. 150. Even where there is a conflict of testimony, the court is not required to send the case to a jury. It would seem to be the duty of the judge to weigh the evidence, and decide the question according to the preponderance thereof. He must exercise his discretion, after a careful consideration of the character and effect of the testimony in the case. Earley’s Ap., 90 Pa. 321; Wernet’s Ap., 91 Pa. 319. The judgment must be suffered to stand until overcome by testimony which, if believed, ought to move a chancellor to decree the note on which the judgment is entered, void, or should be reformed, because of forgery, fraud or mistake. Knarr v. Elgren, 8 Cent. R. 828; 44 Leg. Int. 332; 19 W. N. C. 531. And this testimony must be clear, precise and indisputable. Stine v. Shirk, 1 W. & S. 195; Martin v. Buens, 67 Pa. 460; Cummins v. Hurlbut, 92 Pa. 165; Thorne et al. v. Waifflein, 100 Pa. 526; Nicholls v. McDonald, 100 Pa. 519.
    “ In our opinion, the testimony, as submitted to the court in this case, would not justify a jury in finding that the note in question was a forgery. It is not so clear and indisputable as would warrant them in setting it aside. We do not feel it our duty, as a chancellor, to reform the instrument, or to declare the note void. It is true that Jonathan K. Essick denies the genuineness of his signature to the note, and two other witnesses believe it is not his, yet, on the other hand, Manlove Essick testifies that he did sign it, and other witnesses declare that he subsequently recognized the signature as his, on more than one occasion. In our opinion, the preponderance of the testimony is in favor of the genuineness of the obligation.
    “ In arriving at this conclusion we have not overlooked the fact that Manlove Essick was convicted sometime since of forgery, and is now undergoing a term of imprisonment for this offence. But his conviction was based upon another transaction entirely, and had no connection whatever with the bank or note in question. We had him before us as a witness and heard his testimony, and we have considered it in connection with his present position.
    “For these reasons we must discharge the rule.”
    The evidence was not printed in the appellant’s paper book.
    
      The assignments of error specified the action of the court, 1, in dismissing the application to open the judgment, so far as the same related to Jonathan K. Essick; 2, in deciding that this was the character of case which “the judge ought not to submit to the jury, unless the evidence is such that he would feel himself bound, as a chancellor, to reform the instrument ”; 3, in deciding that the same rule of law was applicable in cases of this character, where forgery is tbe basis of the application, as in cases where other matters of defense are alleged, involving oath against oath, etc.; 4, in not submitting the question involving the genuineness of Jonathan K. Essiek’s signature to the determination of a jury; 5, in deciding-that a question of forgery involves the reformation of the instrument alleged to be forged; 6, in deciding that, in applications to-open judgments, on the ground of forgery, “ it was the duty of the judge to weigh the evidence, and decide the question according to-the preponderance thereof.”
    
      C. Wesley Talbot for appellant.
    The single question is as to the genuineness of the signature. Admitting the testimony as to acknowledgments by the defendant, it does not throw any light upon the question whether or not the signature was a forgery.
    Suppose five witnesses would testify'that, from their knowledge-of the handwriting, the signature was a forgery, and seven testify that they thought it was genuine, the preponderance of the testimony would be in favor of its genuineness. It would surely not be the province of the court to determine whether or.not- the signature-was a forgery, in such case.
    The rule which the court below had in view, when deciding-this case, applies to cases where the signature is admitted but a-failure of consideration is alleged, or the defendant offers to vary the terms of the instrument by parol testimony. In such cases, the-court not only has regard to the testimony offered, in passing upon the application, but also the instrument itself, which is presumed to-reflect the contract between the parties, and will receive great weight with the court in passing upon the question.
    Brawdy v. Brawdy, Earley’s Ap., "Wernet’s Ap., and all other-cases cited by the court below, are instances where the terms of the-contract are sought to be changed, and do not embrace questions involving the genuineness of the signature to those contracts.
    
      Wm. M. Hayes and Franklin March, for appellee.
    We are-entitled to have the appeal in this case dismissed, as the appellant has not printed in his paper book the notes of testimony which were taken by the official stenographer.
    The exercise of jurisdiction to open judgments, entered on warrants of attorney, has always been held to be within the sound discretion of the court. In such cases, the courts may judge of the-weight of the evidence and the credibility of the witnesses, and they are not required, in every case where there is a conflict of testimony, to send it to the jury. Earley’s Ap., 90 Pa. 321.
    The appeal to the supreme court, given by the Act of April 4, 1877, was not intended to alter the discretion of the court, but; simply to provide that this discretion might be reviewed. Hickernell’s Ap., 90 Pa. 328.
    On an application to open a judgment, it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and the supreme court wifi not reverse for the exercise: of a sound discretion. Wernet’s Ap., 91 Pa. 319; Knarr’s Ap., 19 W. N. C. 531; Irwin’s Ap., 22 W. N. C. 140.
    Roenigk’s Ap., 2 Cent. E. 68, is on all fours with our case.
    Feb. 15, 1889.
   Per Curiam,

Judgment affirmed.  