The burgess entered judgment for the plaintiff for the amount of the penalty, to wit, $20. Defendant took a writ of certiorari, filing the following exceptions : 1. Because the record does not set out the ordinance under which suit was brought and judg March 2, 1896. WILLIAMS, J. The order twenty-five dollars for the violation of an ordincomplained of in this case is really no more than ance regulating charges for connection with the allowance of an amendment in the descrip sewers, drains, etc. tion of the land taken by the defendant by virtue of the right of eminent domain. The amendment became necessary because of a decision made by this Court. The complaint now made is not that the amendment was allowed, but that no terms were imposed as a condition precedent to such allowance. This is a subject wholly ment rendered. within the discretion of the Court allowing the 2. Because the record does not show that amendment and the only ground on which a re- judgment was rendered by the chief burgess of view could be properly asked is that the Court the borough of Colwyn, or that the said George had been guilty of an abuse of its discretionary S. Drewes had jurisdiction to entertain the suit power in the order made. We do not find any or render the judgment. distinct averment of an abuse of discretion by the Court below, in the appellant's paper book, nor do the circumstances under which the amendment was allowed disclose any disregard of the rights of the appellant. In the absence of both the averment of improper conduct, and the evidence by which such charge could be supported, we see nothing that justifies this appeal. It becomes our duty therefore to dismiss it as improvidently taken. The costs to be paid by the appellant. Superior Court. Nov. '95, 31. H. B. December 3, 1895. Borough of Colwyn v. Tarbotton. Jurisdiction of Supreme and Superior Court- 3. Because the chief burgess of a borough has no jurisdiction in civil suits for the collection of penalties provided by borough ordinances. 4. Because the record returned does not show any jurisdiction to support the action or the judgment rendered. The Court, after argument on these exceptions, affirmed the judgment. Defendant appealed, assigning for error this. action of the Court. Lewis Lawrence Smith, for appellant. January 20, 1896. RICE, P. J. This is an appeal from the judgment of the Court of Common Pleas, affirming the judgment of the burgess of the plaintiff borough in a suit for a penalty for the violation of a borough ordinance. The first question that confronts us, although it was not raised by the counsel on the argument of the case, is whether an appeal to this Court lies in such a case. The expressed intention of the Act creating this Court (Act of June 24, 1895, P. L. 212), was to confer "exclusive and final appellate jurisdiction of all appeals which are now allowed to the Supreme Court in the following classes of cases." În class "C" are enumerated: "All other actions in the Common Pleas . . . whether originating therein or reaching that Court by appeal, or certiorari, from a justice of The Superior Court has the same appellate jurisdiction the peace, or alderman, or magistrate, if the A writ of error, certiorari or appeal does not lie to review the judgment of a Court of Common Pleas upon certiorari to the judgment of a burgess for a penalty for the violation of a borough ordinance. that the Supreme Court has in the cases enumerated in the Acts creating said Court, and no greater. The Act May 9, 1889, providing for appeals to the Supreme Court does not extend the right of review, or change its extent in cases already provided or modify in any manner its exercise. Mahanoy City Borough . Wadlinger, 142 Pa. 308, followed. . amount of money really in controversy is not greater than $1000," etc. It is plain that this Court has the same appellate jurisdiction that the Supreme Court had in the enumerated classes of cases, and no greater. It has been several times decided that the Act of May 9, 1889 (P. L. 158), providing that all appellate proceedings in the Supreme Court Appeal of Thomas Tarbotton, from the judg- theretofore taken by writ of error, appeal or ment of the Common Pleas of Delaware County. certiorari, should thereafter be taken in a proOn May 18, 1895, an action was brought by ceeding called an appeal, does not extend the the Borough of Colwyn before the chief burgess, right of review, or change its extent in cases against Thomas Tarbotton, to recover a fine of already provided for, or modify in any manner its exercise: Rand v. King, 134 Pa. 641; Com. Appeal of William Russel, from the judgment of the Common Pleas No. 4, of Philadelphia County, entered in making absolute a rule for judgment for want of a sufficient affidavit of defence in an action of assumpsit wherein Elwood S. Hand was plaintiff, and appellant defendant. The facts of the case are fully set out in the opinion of the Court. Edward S. Sayres, for appellant. Parol evidence is admissible to show a verbal Bown v. Morange, 108 Pa. 69. The present case differs in that the certiorari contemporaneous agreement which induced the was to the judgment of a burgess; it differs in execution of a written agreement, though it may no other respect. But in Spicer v. Rees, 5 R. have the effect of varying or changing the terms of the written contract. 119, it was held that an action before the mayor to recover a penalty for the breach of a city ordinance was within the provisions of the 24th sect. of the Act of 1810, although that section related in terms to the judgment of the justice of the peace only. Said GIBSON, C. J., "It is Any verbal agreements or declarations which contended, however, that though the action be a are to affect the instrument sued upon must be civil one, the writ of certiorari may well lie from contemporaneous with it. this Court to the mayor who is not a justice of the peace, and whose proceedings therefore are But he is not within the prohibitory clause. clothed with no other jurisdiction than that of an alderman, who is virtually a justice, and Heydt v. Frey, 21 WEEKLY NOTES, 265. In the present case it is clearly shown by the affidavit that the oral agreement was part and parcel of the written agreement and contemporJoseph Savidge, for appellee. aneous with it. whose proceedings can be dealt with by the Courts of record only as such." Accordingly the writ was quashed, although the counsel on The unsupported allegation of an oral agreeboth sides argued that the Act of 1810 did not ment made at or before the signing of a written apply. It is true that in Com. v. Thompson, one, absolutely contradictory in its terms, and 110 Pa. 297, the Supreme Court entertained ap- without any request or suggestion on the part of pellate jurisdiction, but that case was a summary the party who sets up the oral agreement that it be proceeding in the name of the Commonwealth. inserted in the written one, is not sufficient, as a The distinction is fully shown in Com. v. Betts, defence to an action resulting from a failure to 76 Pa. 465. perform the terms of the written agree ment. We feel constrained to hold that, under the decision in Mahanoy v. Wadlinger, supra, the In the absence of any clear averment of a judgment of the Common Pleas is not review-binding agreement by which the original contract is abrogated or modified it is not error to enter The appeal is dismissed at the cost of the ap- judgment for want of a sufficient affidavit of depellant. able. W. M. S., Jr. fence. McBrier v. Marshall, 126 Pa. 390. When parties without fraud or mistake have put their engagement in writing, that is not only the best but the sole evidence of their agreement. Irvin v. Irvin, 142 Pa. 271. Oral evidence may be received to explain the subject matter of a written agreement, and to prove a consideration not mentioned in the deed, provided it is not inconsistent with the consid. eration expressed in it, and not to contradict or vary the terms of the instrument itself. Martin v. Berens, 67 Pa. 459. the full amount of his claim, with interest. From this judgment the defendant appeals to this Court and alleges as erroneous the entering of the judgment for want of a sufficient affidavit of defence, for the reasons: First. That there was a contemporaneous oral agreement made at the time of the signing of the contract notes which must be considered a part of the written agreement, as it was this oral agreement which induced defendant to sign the notes, which fact only a jury can determine. Second. That the affidavit of defence alleges that the books were not up to the standard and that they were never distributed, which fact only a jury can determine. the advertisement inured to defendant's benefit, which fact only a jury can determine. January 20, 1896. BEAVER, J. The plaintiff's action in this case was founded upon three several contracts for advertisements to be inserted in books, descriptive and illustrative of the Pennsylvania Company's building, and of the Penn Mutual Life Insurance Company's building in the city of Philadelphia. For these advertisements the defendant agreed to pay a sum aggregating seven hundred and sixty-five dollars. In addition to the advertisement the defendant was to receive twenty copies of the book describing and illustrating the Pennsylvania Company's building and Third. That the supplemental affidavit of deten copies of the book descriptive and illustrative fence avers that the plaintiff falsely and frauduof the Penn Mutual Life Insurance Company's lently verbally represented to the defendant that building. The amount of these several contracts, he would not collect said contract notes, unless as was stipulated therein, was to be paid in trade. Each of the contracts contains this clause: "It is agreed that the whole agreement between the The alleged oral agreement, even if defendant parties is contained in this contract." Upon the were able to bring his proof up to the measure back of each, in order to make the terms more required by the late authorities in Pennsylvania, specific and preservative of defendant's rights, he is so indefinite that it ought not to be allowed to made these endorsements: "The within named prevail against the express terms of the written amount is only available as a credit and is to be contracts which provide that the whole agreededucted from my price for work other than Iment between the parties is therein contained. have estimated on, or contracted for prior to the Within what time was it stipulated that said date hereof. In the event of the contract for advertisements should bring defendant sufficient the said work not being awarded me, I am to be work to net him in profit as much or more than absolutely acquitted of any charge for the adver- the respective amounts of the contracts? There tising herein provided." An opportunity to do is no time fixed in the affidavit and it would be work not contracted for before the date of these unreasonable to require the plaintiff to wait an agreements and for an amount greater than the indefinite time before that question could be deentire amount stipulated to be paid by them was termined. The affidavit in this respect lacks the offered to the defendant, which he accepted, but clearness and precision which is required to estabsubsequently refused to perform, for reasons not lish a contemporaneous oral agreement which very definitely explained by him in his affidavit induced the execution of a written contract to of defence. Upon his failure, a suit was brought vary, change or reform the instrument: See for the amount of the aggregate of the several Thomas et al. v. Loose et al., 114 Pa. 35. contracts. The statement was full and specific. This disposes of the first and third specifications The defendant filed two several affidavits of de- of error. fence in which he alleged great importunity on As to the second, it is sufficient to say that the part of the plaintiff in securing the contracts nothing whatever is said in the agreement as to and a contemporaneous oral agreement, made at the quality of the books, nor is it alleged in the their signing, which he alleged was the induce- affidavit that any representations were made to ment to his signing them, that he was not to pay the defendant as to quality, nor that any agreethe amount therein stipulated, "unless said ad- ment was made as to distribution. The defendvertisements should bring deponent sufficient ant is alleged to have received twenty of the work to net him in profits as much or more than books descriptive of the Pennsylvania Company's their respective amounts." He also alleged an building, and ten books descriptive of the Penn agreement as to quality, and as to the distribu- Mutual Life Insurance Company's building, and tion of the books, and averred that the books this he does not deny. were not up to the standard, nor was the distri- We are of opinion that the affidavits of defence bution made as agreed upon. Upon the hearing taken together were insufficient, and that the upon a rule to show cause why judgment should judgment was properly entered for the plaintiff not be entered for want of a sufficient affidavit by the Court below. The judgment is therefore of defence, the Court below made the rule abso- affirmed. lute and entered judgment for the plaintiff for W. D. N. WEEKLY NOTES OF CASES. That at the time the defendant endorsed said note it did not bear interest, and the words "by renewal with interest at six per cent." were not upon the said note, and this defendant avers that the said words were fraudulently inserted in said VOL. XXXVIII.] FRIDAY, MAR. 27, 1896. [No. 3. note without his knowledge or consent after the Supreme Court. July, '95, 125.. Negotiable paper-Alteration. Where a promissory note is fraudulently altered after endorsement by the addition of words, making it payable | with interest, there can be no recovery against the endorser, and this is not changed by the fact that when the note came to the hands of the plaintiff the added words had been stricken out. Kountz v. Kennedy, 63 Pa. 187, explained and restricted. Appeal of G. G. Williams, defendant, from the judgment of the Common Pleas No. 4, of Philadelphia County, in an action of assumpsit, wherein the Citizens' National Bank of Baltimore, was plaintiff. The statement in this case set up that the plaintiff was the bona fide owner and holder of a note, of which the following is a copy : "$1500. BALTIMORE, MD., Nov. 12, 1894Four months after date I promise to pay to the order of G. G. Williams fifteen hundred dollars at the Citizens' National Bank, Baltimore, Md. wanawal with interest at 6 0. Value received defendant had endorsed the same and delivered the same to Philip Williams Averitt. A rule was taken for judgment for want of sufficient affidavit of defence, which the Court, after argument, made absolute. The defendant took this appeal, assigning for error this action of the Court. A. S. L. Shields, for appellant. The note could not be admitted in evidence except in connection with evidence explaining the alteration or erasure. in Heffner v. Wenrich, 32 Pa. 423. The alteration by the holder of an instrument Marshall v. Gougler, 10 S. & R. 164. The mere erasure of the fraudulently added words does not relieve the plaintiff from the necessity of explaining how the alteration and erasure occurred. The presumption is that the words were fraudulently added and the note vitiated, it cannot then be made valid by erasing the fraudulent writing. Van Dusen v. Thomas, 10 WEEKLY NOTES, 190. Kountz v. Kennedy, 63 Pa. 187, But if not, the statement sets out specifically that the note not only had the erasure upon it when discounted, but that the note was made for a specific purpose, namely, for the renewal of another note, and that before it was ever used for That the plaintiff had given full value for the the purpose for which it was made, and before said note before maturity and that the words it was ever issued, the erasure of the objectionerased in the note were erased before the said able words had been made. These allegations of note was received and discounted by the said the statements are not denied; therefore, if the plaintiff, and that the note in suit was endorsed alteration was in this case material, the facts by the defendant for the purpose of having the bring it under the law as defined by Byles on same discounted by the plaintiff for the renewal Bills, p. 321, viz.: of a certain other note for a similar amount which was due and payable on the said 12th day of November, 1894, to the said plaintiff, said note so to be renewed being executed and endorsed by the same parties as the note upon which this suit is brought. The defendant filed an affidavit of defence, the essential part being as follows: "There are, however, two cases in which an alteration, though in a material point, will not vacate the instrument; first, where such an alteration is made before the bill is issued, or become an available instrument; and, secondly, where the bill is altered to correct a mistake or supply an omission, and in the furtherance of the original intention of the parties." March 2, 1896. GREEN, J. This is an ac- not exist here, and even then the case of a fraudtion by the endorsee of a negotiable promissory ulent alteration was expressly excluded from its note against the endorser. The note in suit had operation. Explanatory testimony was there. upon its face a visible alteration. The words "by given, and it appeared in evidence that the note renewal with interest at 6 per cent." had an ink bore upon its face no sign of alteration, the erasure drawn over them. The plaintiff's state- added words having been removed by the use of ments contained an averment in the following chemicals, that the note was intended to be words, "The words erased in the above note given with interest but it had been omitted by were erased before the said note was received by inadvertence, and that the plaintiff had seen the the said plaintiff." This is not only an admis- maker within an hour or so after it was signed sion, but a direct assertion that the erasure was and endorsed, and the maker agreed that the made before the plaintiff received the note. Of words, "with interest," should be added. The course under all the decisions the plaintiff took alteration was thereupon made by the clerk of the note with notice that it had been tampered the maker, but the added words were subsequently with, and with its blemishes on its face, and they taken out, and the endorser's liability was put were chargeable with all the consequences of upon the express ground that the alteration was such knowledge. It is equally true under all the made with perfect innocence and in order to the authorities, and especially in actions upon make the contract as it was intended to be, and negotiable instruments, that there can be no re- was probably expunged quickly afterwards, and covery upon such an instrument unless the alter- that there was not the slightest evidence of fraud ation is affirmatively shown by the holder of the or a fraudulent purpose in the transaction. The instrument to have been innocently made with- case of a fraudulent alteration was excepted out prejudice to the rights of the party sought from the decision. THOMPSON, C. J., deliverto be charged with liability. The authorities ing the opinion, said, "Certainly as between the are reviewed in the opinion of this Court in the maker and payee the note would not be affected case of Hartley v. Carboy, 150 Pa. 23; Gettys- by what had been done if it had remained on the burg National Bank v. Chisholm, 169 Pa. 564. paper. Nor is there a shade of suspicion from The affidavit of defence alleged, "That at the the evidence that the alteration was done for any time the defendant endorsed said note it did not fraudulent purpose. ... The endorser was bear interest and the words, 'by renewal, with hardly, at this early moment, expected to stand interest at six per cent.,' were not upon the said as the paying party by any of the parties to the note, and this defendant avers that the said note. An intention to defraud him by making the words were fraudulently inserted in said note alteration is without anything in the testimony without his knowledge or consent after the de- to support it, and was not pretended in argufendant had endorsed the same to Philip Wil- ment. . . . . But the note in evidence was preliams Averitt." The affidavit further averred cisely in the form it was when endorsed. It that defendant was an accommodation endorser had been returned to its original shape. The and had received no consideration for his en- restoration was not a fraud on the endorser, for dorsement. The case as it stands upon the it left the note as it was when the endorsement record therefore is, that a fraudulent alteration was made. Now it seems to me, that as the of the note was made to the defendant's preju- identity of the note remained, and there was dice after his contract of endorsement was made nothing in it to enlarge the obligation of the enand without his knowledge or consent. It is un- dorser, and as what had been done was innonecessary to cite the authorities to show that cently but mistakenly done, and expunged for upon such a state of the record there can be no aught we know within the hour after it had been recovery until the plaintiff has affirmatively done, there is no rule of law unreasonable enough shown by explanatory testimony that the altera- to hold it avoided by this. I admit that if there tion was made in such circumstances that the had been evidence of a fraudulent tampering defendant would be liable notwithstanding the with the note a different rule would apply." alteration. It is manifest, therefore, that in the present It is contended, however, for the plaintiff, that case it is impossible to apply to it the decision in because the added words were stricken out by Kountz . Kennedy, because in the first place the erasure the note was in its original shape as we know nothing about the circumstances of the it was when the defendant endorsed it, ard alteration and erasure, and secondly, the affitherefore no harm was done, and that the case of davit of defence expressly alleges that the alterKountz v. Kennedy, 63 Pa. 187, where the en- ation was made fraudulently. dorser was held liable in somewhat similar circumstances, rules this case. But the opinion in that case, which was not unanimous, was placed upon very exceptional circumstances which do But the tendency of all our recent decisions is to hold parties more strictly responsible for alterations of any kind, particularly in the case of negotiable instruments, and we do not think that |