OpiNioN by
He. Justice Teunkey:The act of April 4, 1877, provides that in all cases of application to have any judgment opened which has been entered by virtue of a warrant of attorney, or upon a judgment note, the parties aggrieved by the decision of the court of common pleas may have the same reviewed by appeal in like manner and proceeding as equity cases are now' appealed.
Prior to the enactment of this useful statute the defendant who applied to have such judgment opened was compelled to submit to the decision of the court of common pleas as final when entered against him, unless he resorted to a formal bill and proceeding in equity, which was the only practical remedy for relief from an unjust judgment. In either form of procedure the relief demanded is in equity; and the applicant or complainant must make a case which would justify a chancellor in entering the decree.
The judgment in this case should not have been opened, nor the evidence submitted to the jury. Until overcome by testimony that, if believed, ought to move a chancellor to decree that the writing is void, or should be reformed, because of forgery, fraud, or mistake, it must be suffered to stand, although the parties thereto so testify that, under the circumstances, it is difficult to avoid belief that one or the other has committed perjury. That the maker of the note cannot read the language in which it is written is a fact to be considered; still, the burden is on him to establish that it was falsely read, or represented to be other than what is written.
Elgren and Sloppy both testify positively and each contradicts the other. According to the testimony of their neighbors, their reputation for truth and honesty is so bad that if the two go together, they are well matched. Hence, where either has the burden of proving a fact by two witnesses, or one witness and *182corroborating circumstances lie should be held strictly to the rule, when the only witness is himself.
There is some testimony tending to show that Sloppy was poor and did not have the money to lend. This is met by direct testimony that he did have money. Although positive testimony that Sloppy had money may be more satisfactory than testimony of circumstances tending to show that he had not, the question is whether these circumstances would justify a finding that he could not by reason of poverty have made the alleged loan. We think not.
Taken by themselves, they would not warrant a jury in rendering a verdict for the defendant because the note was without consideration. Here, the direct testimony against the defendant is strong, and cannot be lightly oast aside. Knarr and Rudolph testify to Elgren’s admission that he gave the note to Sloppy for $500 and that it was right; and Hepburn, Forcey, and Smith to his admissions utterly inconsistent with his belief that the note was fraudulent or forged. Before Knarr purchased, in answer to inquiry, Elgren told him the note was right and to buy it. To Rudolph he complained that Sloppy was crowding him for a debt of $500 and would break him. And to others when asked if it was true that Sloppy had forged a note on him for $500, he replied: “There is nothing in it”
Were this cause tried in a court of equity in a proceeding commenced by bill, it would be dismissed. That it was commenced in another form does not prevent application of the same principles.
Judgment reversed.