The judgment of the Supreme Court was entered
Pur Curiam.It is unnecessary to repeat what has been said in Earley’s Appeal, ante, p. 321, that on rules to open judgments entered on warrants of attorney, the courts still have the.right to exercise their discretion upon the depositions. The appeal was given by the Act of 1877, in order that the exercise of that discretion should be reviewed in this court. Before that act there wTas no appeal, and the decision of the lower court was final. The allegation of the appellant here was, that at the time the bond and warrant was executed, the obligee promised to enter it up, so as to be a lien on the real estate of John Hickernell. ■ There was some evidence of this. We think, however, upon a careful examination of the whole testimony, it did not appear to have been made the condition upon which the bond was executed. Without this is shown, the legal rights of the holder of the bond ought not to be affected by the parol evidence of loose conversations. Had the surety in this case desired that the bond should be entered up, a notice to do so would have been sufficient. The legislature, recognising the danger of parol evidence in such cases, has provided", by the Act of May 14th 1874, that such notice shall be in writing.
Order affirmed. Appeal dismissed at the costs of appellant, and record remitted.