
    John Hipps et al. v George P. Wardle for Use, etc.
    Upon trial oí an issue framed after judgment opened, the plaintiff may send out with the jury a statement of the damages claimed.
    Where a judgment is substituted for a promissory note, parol evidence is admissible to show the indorsements on the latter.
    Where fraud is alleged it must be affirmatively proved.
    (Decided October 26, 1885.)
    Error to the Court of Common Pleas of Cambria County.
    Affirmed.
    In March of 1872 and September of 1873, H. B. Kinports, B. F. Douglass, and James A. McGee purchased certain tracts of timber land from Bobert McfKaig and E. H. Wilson, amounting in all to 300 or 400 acres. Shortly after, the grantees commenced to improve the property by the erection of a sawmill, dwelling houses, and other buildings. In November of 1873 judgments for $40,000 or $50,000 were entered against the grantees, who were indebted for other large amounts. Five other persons afterwards purchased interests in the property^ and the business was carried on under different firm names by these persons until April 7, 1875. One then withdrawing, a limited partnership was formed, and all of the property valued at $180,000, the shares being of $1,000 each, “full paid up agreeably to the provisions of the articles of association.” Four of the members of this partnership, on August 31, 1875, sold a one-sixth interest to Hipps and Lloyd for $25,000, which was evidenced by 30 shares, they to pay $17,000 in notes of the vendors, and give two notes for $4,000 each at twelve and fourteen months. One of these was made payable to J. M. Kin-ports, and the other to H. B. Kinports. One was paid, and before the other became due, or its renewal, encumbrances upon the real estate remained unpaid, and interest accumulated. The unpaid note was assigned to War die as collateral security for a debt due him by H. B. Kinports, a payee in the note, the delivery being made by Porter Kinports for the latter. Subsequently, the note was returned to Porter Kinports, who met Hipps & Lloyd and agreed to> buy for them certain stock of the company then offered for sale, and they then took up the old note, and gave a new one drawn to the order of Wardlc, although he was not present, and judgment was entered on the same. Kinports made no effort to buy in the stock referred to at the sale. Finally, the entire property was sold by the sheriff on the judgments entered as above stated.
    
      Note. — Por the burden of proof where judgment is opened, see note to Roenigk’s Appeal, post, 284. For proof of fraud see note to Schack v. Louehheim, ante, 111. Rexmission may be given to send out with the jury an itemized statement of claim in an action of debt (Com. use of Bellas v. Lebo, 13 Serg. & R. 175; Frazier v. Funk, 15 Serg. & R. 26; Little Schuylkill Nav. R. & Goal Co. v. Richards, 57 Pa. 148, 98 Ain. Dec. 209) ; or in an action of replevin (Phillips v. Stroup, 1 Monaghan (Pa.) 517, 17 Atl. 220) ; or in proceedings to assess damages for opening a street (Allen v. Philadelphia, 1 Pa. Dist. R. 216) ; or in trespass (Ege v. Kille, 84 Pa. 333; Blight v. Ewing, 26 Pa. 135). But it has been said that this practice is not to be commended in such case. Rowand v. Clark, 34 Phila. Leg. Int. 232. In any case it seems to be within the discretion of the court. Whitehall Mfg. Co. v. Wise Bros. 119 Pa. 484, 13 Atl. 298.
    
      Hipps & Lloyd having derived their interest in the property from H. B. Kinports, one of the defendants in the encumbrances upon which the property was sold, as well as from B. T. Douglass, another of the defendants, and who, it was falsely alleged, had given collateral to the lien creditors, asked to have the judgment opened for failure of consideration.
    Evidence was offered to show that H. B. Kinports was not indebted to Porter Kinports at the time the note was given to him, and that the latter had falsely induced Hipps & Lloyd to purchase an interest in a failing and worthless concern. The plaintiff below contended that he was an innocent purchaser of negotiable paper for value.
    The court permitted evidence to be received showing the indorsement upon the promissory note, in place of which the judgment was given. It instructed tire jury that it must find that fraud was affirmatively shown to set aside the judgment as fraudulent. The jury was also permitted to take with them a calculation of damages prepared by the plaintiff.
    
      George, M. Beade, J. 0. Early, and T. B. Scanlan for plaintiffs in error.
    W. Horace Bose, Wm. H. Eechler, and M. D. Kittell for defendant in error.
   Per Curiam:

We see no- error in the admission, nor in the rejection, of evidence. The charge presents the case fairly and correctly. The points were well answered. The case was well tried, and the judgment should not be disturbed.

Judgment affirmed.  