author: — Per Curiam:

text:
    January Term, 1883,
    No. 249.
    March 28, 1883.
    Seidel v. Bauer.
    A conveyancer employed to have a conveyance made clear of incumbrance and instructed to take out new searches had a mortgage search against Jonathan Weber, the name of the grantor as it appeared in the deed to him, brought down to cover the date of the conveyance. In executing the conveyance, the grantor signed his full and correct name “ Jonathan D. Weeber.” The conveyancer then took an affidavit from the grantor that there was no other incumbrance than was on the searches. It subsequently appeared that a mortgage had been given by Jonathan D. Weeber, which the searches did not disclose, and the grantee was compelled to pay it to prevent the property from being sold by the sheriff. Held, in an action by the grantee against the administrator of the conveyancer, that the latter had not properly discharged the obligation he had. assumed and that his estate was 'liable for the amount of the mortgage.
    Before Mbrcur, C. J.; Gordon, Paxson, Trunkey, Green, and Clark, JJ.

      Error to the Court of Common Pleas, No. 1, of Philadelphia County.

      Assumpsit by John Bauer against Aloisa Seidel, executrix of the last will and testament of Gustavus Seidel, deceased.
    The narr alleged an employment of defendant’s testator, a conveyancer, to cause certain premises to be conveyed by Jonathan D. Weeber to the plaintiff, clear of incumbrances; that, when conveyed to plaintiff, the premises were subject to a certain mortgage debt given by said Weeber and the plaintiff was afterwards compelled to pay $1,109 17 to prevent them from being sold by the sheriff.
    On the trial, before Biddle, J., the following facts appeared : Jonathan D. Weeber was the owner of certain real estate. In the deed conveying it to him, his name was written “Jonathan Weber.” As Jonathan Weber, he was awarded a loan by The Harmony Building and Loan Association, to be secured by mortgage of said property. Gustavus Seidel, defendant’s testator, who was the association’s conveyancer, was engaged, in their behalf, in drawing the necessary papers, obtaining searches, &c. He was visited by Weeber, -who brought with him John Bauer, the plaintiff. Bauer stated that he had agreed to purchase the property from Weeber and would assume the mortgage to the association.

      Paul P. Zaiss, one of plaintiff’s witnesses, testified; “Mr. Bauer told Seidel to take out all new searches, and make a good deed.” Seidel said, “All right, Bauer, I will attend to it.” Mr. Bauer said, when he went in, “ to take out new searches.” He told Seidel that he had bought a house from Mr. Weber, and to take out all new searches. Seidel' had a mortgage search ordered by Krumbhaar against Jonathan Weber December 15, 1874, brought down to January 4, 1875, in the same name. The deed was drawn from Jonathan Weber to John Bauer. When the deed was presented for execution, it was signed and acknowledged as “ Jonathan D. Weeber.” The same witness whose testimony is quoted above testified that Bauer asked Seidel “if he had taken out all new searches and if everything was all right.” Seidel said: “It is everything right, and if it’s not right, I’m good for it.” The notary who took Weeber’s acknowledgment testified to having noticed the difference between the signature and the grantor’s name, as written in the deed, and to referring the matter to Seidel. He continued : “Seidel and Bauer had a talk in German — what the conversation was, I don’t know. After some time, Mr. Seidel ordered me to take Weber’s affidavit, that there was no other incumbrance than was on the searches. Bauer was present. Weber took the affidavit. I don’t know what became of it. I prepared it, and swore Weber.
    When Weber signed his name, I advised taking out new searches against Jonathan D. Weeber, as the judgments or mortgages would not otherwise appear.
    There were no separate searches. There had been searches made against Jonathan Weber, and they were ‘brought up.’ Don’t know who made them. Was present at settlement.”

      Gustavus Seidel, the testator’s son, being called by defendant, gave the following account of the same interview :
    “ Father told Bauer that we would have to take out other searches. Mr. Weber said his right name was ‘ Jonathan David Weeber,’ but that in this country he never made use of it. ITe did all his business transactions in plain Jonathan Weber. Mr. Bauer asked what the expense for new searches would be, and was told eight or ten dollars — maybe more. So he considered awhile, and said, ‘Never mind, I know Mr. Weber a good many years, and know his business very near as well as I do my own.’ The settlement was then made. He also said, ‘ I am satisfied that there is nothing against it. I have lived in the house a good many years.’ He said he would take the property without any expense for new searches.”
    The conveyancer’s bill, amounting to $45, and including $7 50 for searches, was paid by Bauer and the deed delivered to him. It was afterwards discovered that, at the time of the conveyance to Bauer, the premises so conveyed were incumbered by a mortgage, executed some time before by “ Jonathan D. Weeber,” and so indexed in the recorder’s office. This mortgage did not appear upon the search taken out by Seidel against “Jonathan Weber.” Proceedings were begun by the holder of the mortgage to compel its payment, and Bauer, in order to prevent the property being sold by the sheriff, was eventually forced to pay him $1,109 17, the sum to recover which this suit was brought.
    Plaintiff’s counsel presented, inter alia, the following point:
    If the jury believe, from the evidence, that G-ustavus Seidel, defendant’s testator, as a conveyancer, was employed by the plaintiff to ascertain the title of Jonathan D. Weeber to the premises in question ; to prepare a proper deed of conveyance, and procure the necessary searches that would convey a sufficient title to the plaintiff clear of all incumbrances, then it became his duty to have procured from the office of the recorder of deeds, a certificate of search for all mortgages upon said premises executed by said Jonathan I). Weeber, and if, by failure to procure such certificate of search, the plaintiff has sustained any damage, the defendant will be liable in this action for the damage which the plaintiff has sustained.
    Affirmed.
    (Seventh assignment of error.)
    The defendant presented, inter alia, the following points:

      Sixth. That it was the duty of the recorder of deeds, on an order for a certified mortgage search against Jonathan Weber, to certify all mortgages of the premises mentioned in the narr by every Jonathan Weber, as well with a middle letter or name as without.
    The learned judge answered : “ It was not the duty of the recorder, when searches were ordered against Jonathan Weber, to certify as to Jonathan 13. Weeber.”
    (Twelfth assignment of error.)

      Ninth. If the jury find that defendant’s testator ordered or obtained a properly certified mortgage search against the premises in question, for the proper period, against Jonathan Weber, and that was the name by which the said premises were conveyed to him, and that the said Jonathan Weber signed his name Jonathan 13. Weeber to the deed from him to the plaintiff, and that thereupon the defendant’s testator gave to the plaintiff his opinion, honestly and in good faith, that the search was sufficient, and that the premises were free and clear of mortgage incumbrances, other than those mentioned in the search, defendant’s testator is not liable, though mistaken, and your verdict must be for the defendant.
    Refused.
    (Fifteenth assignment of error.)
    The Court charged the judge as follows :
    “ Whether the defendant should pay to the plaintiff the loss he sustained, depends mainly upon what occurred at the settlement.
    There were three witnesses, two for the plaintiff and one for the defendant: Zais, Norton, and Seidel. (The learned judge then read the testimony of these witnesses, as given above, as to what occurred at the settlement).

      These are pretty much all the material facts testified to by these witnesses.
    [There is no doubt, in point of law, that if Mr. Seidel became aware of the fact that the real name of Jonathan Weber was Jonathan D. Weeber, and did not take out searches against the real name, or mention the fact to Mr. Bauer, he would be liable.] (Sixth assignment of error). . But if Mr. Bauer was made acquainted with the fact, and assumed the risk of it, Mr. Seidel would not be liable.”
    Verdict for plaintiff for $1,468 64 and j udgment thereon; whereupon the defendant took this writ, assigning for error {inter alia) the affirmance of plaintiff’s point, {supra,) the refusal of defendant’s points, and the portion of the judge’s charge inclosed within brackets.

      J. P. Klinges and Joseph W. HunsicJcer for plaintiff in error.
    If Seidel made a mistake in not ordering searches against “Jonathan D. Weeber,” he at least did so honorably and in good faith. That being the case, he is not liable.
    Watson®. Muirhead, 7P. F. Smith, 161; Pitt®.Talden, 4 Burr, 2060; Montriow ®. Jefferys, 2 C. and P., 118 ; Godeiroy ®. Dalton, 6 Bing., 460 ; Kemp ®. Burt, 4 B. and Ad., 424; Gilbert ®. Williams, 8 Mass., 51.

      Joseph L. Tail for defendant in error.
    It was for the jury to say whether Mr. Seidel failed to use the proper means to discover the Price mortgage. It is an unheard-of practice that a conveyancer has acted in good faith by simply going to the grantor and getting him to make an affidavit that there are no incumbrances against the premises to be conveyed. In support of so novel a practice, why did not the defendant below call experts to show that this was a proper way for a conveyancer to act, and not complain of us because none were examined in support of our case % ' It did not require evidence of conveyancers to show what was incumbent for Seidel to do. Hq recognizes that he was bound to take notice of the difference in the names, and acted, he says, upon it by getting the affidavit of Weeber. That would not be enough, because it did not protect us against the mortgage which a properly directed search would have revealed.
    For another reason the specifications cannot be sustained. Bauer gave Seidel positive instructions to have new searches taken out against Weeber. Seidel decided not to do this, but to rely upon his opinion that the old mortgage search was sufficient. He took the risk, and nothing can be plainer than if his neglect to obey the directions resulted in a loss, he is responsible: Gilbert v. Williams, 8 Mass., 51.
    April 19, 1883.
   — Per Curiam:

We discover no error in the admission or in the rejection of evidence. It was properly restricted to the transaction between the parties. The plaintiff’s testator was bound to exercise reasonable care in the discharge of his professional duty. He was employed not only to prepare a proper deed of conveyance from Jonathan D. Weeber, of the premises in question, but also to procure the necessary searches whereby the deed would convey to the defendant in error a title clear of all incumbrances. Procuring a certificate of search of mortgage against Jonathan Weber only was not a due and proper discharge of the obligation which he assumed. The evidence that he did agree to perform the services stated, and failed to duly perform them, was most ample to submit to the jury, and justifies the verdict.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    January Term, 1882,
    No. 397.
    January 8, 1883.
    Ulmer v. Gentner.
    1. In order to detect whether the signature to a paper in evidence is forged or not, comparison may be made by the jury between the disputed signature and those of the party well authenticated, and also by witnesses who have knowledge of his handwriting, but this rule does not extend to experts.
    2. Experts may be permitted to say whether a signature be forged or simulated, and give their conclusions.
    3. In an issue directed by the Orphans? Court to try whether a certain due bill was signed by a decedent, the defendant sought to introduce in evidence, through expert testimony, a magnified drawing of certain portions of the signature in dispute, for the purpose of showing that it differed from admittedly genuine signatures in the minute structure of some parts not visible to the ordinary naked eye. Held, that as the drawing was only the copy of a part of the signature, it was clearly inadmissible for the purpose offered.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.

      Error to tlie Court of Common Pleas, No. 3, of Philadelphia County.

    Feigned issue, between Frederick Gentner, plaintiff, and John George Ulmer, executor of the last will and testament of L. I). Bek, deceased, defendant, awarded by the Orphans’ Court of Philadelphia county, to determine the genuineness of the signature to, and the existence of, a valid and sufficient consideration for a certain obligation or due bill. The due bill was written in German, and the following is the translation: “I, the undersigned, L. I). Bek, acknowledge, by these presents, that I am indebted to Frederick Gentner, 314 Brown street, who has been teacher in my native place, Bissengen, on the Enz, kingdom of Wurtemburg, in the sum of $5,000 (five thousand dollars), for services he rendered to me, as well as. for recompensation, and so forth, which sum shall be paid to him, or his heirs, besides interest thereof from January 1, 1875, but not until after my death, by my executor, whoever it may be, upon producing this due bill, without any objection whatsoever, and before any of the legacies which I make in my last will shall be paid, because this is a debt of honor, and shall be paid first. And should my estate be not sufficient to pay all legacies, then what is wanted shall be deducted of the amount I will give my relations in Bissengen.
    Ludwig David Bek.
    Philadelphia, May 85, 1876P

    Before the case came to trial, Frederick Gentner, the plaintiff below;, died, and Charles R. Gentner, administrator g. t. a. of his estate, was substituted as plaintiff upon the record.
    On the trial, before Finlettek, J., Thomas May Pierce, an expert in handwriting, was called by defendant and testified that he held in his hand enlarged drawings, made at the laboratory of Dr. Cresson, of a number of signatures, among them one of that to the due bill in question; that he was present when these drawings were “proved,” and the process was described to have been as follows: “ The signature is put in a lantern, which is illuminated by lime lights, and so on, and it throws an image on a screen some ten or fifteen feet off — a ground-glass screen. The doctor keeps upon his screen such papers as I hold in my hand and then for the purpose of use in court, the paper is placed upon this screen, and the image is thrown upon the paper to see if the two are identical, or, in other words, to prove the correctness of the drawing.”

      The witness was then asked: “Will you please show to the jury the drawing of the signature to the alleged due bill ? ” Objected to. Objection sustained; offer and question overruled. Exception. (Seventh assignment of error.)
    The witness was also asked: “Have you examined the signatures of L. D. Bek to the receipts in the receipt-book of T. L. Gillespie, on the small piece of paper clipped from the will, and on the last will and testament of L. D. Bek, in evidence, and, if so, what is their character and general uniformity of execution?” Objected to. Objection sustained ; offer and question overruled. Exception. (Eighth assignment of error.)
    The following question was then put to the witness:
    “Have you examined the signatures of L. D. Bek to the receipts in the receipt-book of T. L. Gillespie, and the signature on the small piece of paper marked with the initials ‘ T. K. F.’, all now in evidence, with a magnifying glass, and if so, can you give the Court and jury illustrations of the minute structure of some parts of the signatures not visible to the ordinary naked eye ?”
    The Court: What do you mean by illustrations— drawings ?

      Defendant’s counsel-. Yes, sir.
    Objected to. Objection sustained, question overruled. Exception. (Ninth assignment of error.)
    Verdict for the plaintiff, finding that L. D. Bek had signed the due bill, and that there was valid and sufficient consideration therefor, upon which judgment was afterward entered.
    The defendant thereupon took this writ, assigning for error, inter alia, the rejection of his offers in connection with the testimony of the expert Pierce, quoted supra.

      .F. Carroll Brewster (William H. Staalce with him) for . plaintiff in error.
    Under Travis v. Brown, 43 Penn. St., Rep. 9, “ special skill” may be called upon to assist, “when the common intelligence” supposed to be possessed by the jury is not fully “ adequate to the occasion.”
    We contend that the expert should be allowed to give his conclusions of skill, and illustrate these conclusions .for the assistance of the common intelligence of the jury, by showing to the jury the special characteristics and uniformity of construction of the genuine signatures in evidence. The minds of the jurymen being directed to these special characteristics, they would then take the genuine signatures, and, comparing the contested signature with them, conclude if the latter is simulated or not: Travis «. Brown, supra; Ballentine White, 77 Penna., 20; Fulton v. Hood, 34 Penna., 365 ; Reese v. Reese, 7 W. N. C., 275.
    The enlarged tracings were admissible as illustrations: Insurance Co. ». Schaible, 1 W. N. C., 369 ; Udderzook v. Commonwealth, 26 Smith, 340.

      W. TP. Ker (F. Amadee Bregy with him) for defendant in error.
    January 22, 1883.
   — Per Curiam :

Under a clear and correct charge the jury found the signature was not a forgery, and that the note was given upon a valid and sufficient consideration. The evidence was amply sufficient to justify the verdict.

We discover no error in the rejection of evidence. Some offered was clearly irrelevant. A magnified drawing of the outer lines of the signature is only the copy of a part thereof, and was clearly inadmissible for the purpose offered. It is not like a photograph of the whole signature. Comparison may be made by the jury between the disputed signature and those of the party well authenticated, and also by witnesses who have knowledge of his handwriting, but this rule does not extend to experts. They may testify whether a signature be forged or simulated, and give their conclusions: Travis v. Brown, 7 Wright, 9.

Judgment affirmed.


text:
    January Term, 1883,
    No. 224.
    March 26, 1883.
    The West Philadelphia Bank v. Green.
    1. Where abanlchas paid out a depositor’s money upon checks, upon which the indorsements of the payees were forged, in an action thereon by the depositor against the bank, it is no defense to show that the plaintiff has obtained some collateral security to re-imburse him for his.loss occasioned by the acts of the forger, if nothing has been realized out of that security.
    2. The acceptance by the depositor from the forger of the latter’s judgment note for the amount of notes for which the checks, with forged indorsements, were given, is not a fact sufficient to constitute an estoppel in such an action.

      Before Mercur, C. J.; Gordon, Paxson, Teunkey, Sterrett, and Green, JJ.
    Error to tlie Court of Common Pleas, No. 1, of Philadelphia County.

      Assumpsit by Elijah Green against the West Philadelphia Bank, to recover a sum of money which had been paid by the bank, out of plaintiffs money deposited with it, upon presentation of plaintiff’s checks, indorsed with forgeries of the names of the respective payees.
    The material facts, as they appeared on the trial before Biddle, J., are as follows: The plaintiff, Green, was a depositor in the defendant’s bank, and kept an account there from 1874 till November 18, 1879. Green did some business as a note discounter, and between March, 1878, and October, 1879, he discounted seven notes brought to him by one Davis P. Garrett, drawn by Garrett to the order of some one of the following-named persons, who had apparently indorsed the notes in which they were payees respectively: John S. Dodgers, EL G. Carter, and Davis Garrett, the maker’s father. Green gave Garrett his check for the face of each note, less the discount, drawn to the order of the payee. Garrett indorsed each check with the name of its payee, then with his own, and then obtained the money from the bank, where he was well known and a depositor. In October, 1879, Green discovered that the first indorsements on the notes and on the checks had been forged. He endeavored to get a settlement from Garrett, who gave him his judgment note for $4,700, (the amount of the notes in Green’s possession, upon which he had forged indorsements,) and promised to obtain security for its payment. This he failed to do, but left the city, and, shortly after, returned and died. The judgment note was entered up and execution issued, proceedings upon which were pending at the time of the trial. Green, on November 6, 1879, notified the bank that he should look to it for payment of the checks bearing the forged indorsements; and upon its refusal to do so, brought this suit.
    It was in evidence that Green had stated to several persons that he drew the checks to correspond with the notes. The checks sued on were paid out as follows : March 20, 1878, $200 ; November 15, 1878, $200 ; May 3, 1879, $188 ; August 2, 1879, $188; August 16, 1879, $Í26 ; August 27, 1879, $176, and October 9, 1879, $192.
    The defendant presented, inter alia, the following point: “Unless Green can show that he has lost something by this transaction, he cannot recover in this suit and your verdict must be for the defendant.” Refused.
    (Eighth assignment of error.)
    The Court instructed the jury that they should find for plaintiff for his full claim.
    (Tenth assignment of error.)
    The jury found for the plaintiff for the full amount of his claim, and judgment was entered upon the verdict, whereupon the defendants took this writ, assigning for error, inter alia, the refusal of their point stated above and the action of the Court in directing a verdict for plaintiff.

      Samuel B. Huey and John G. Johnson for plaintiff in error.
    Garret being the maker of the notes for which the checks sued on were given, and these not being paid at maturity, they would have been protested, and the indorser and Green notified, and the whole of Garrett’s doings disclosed. If these notes had not matured, it was incumbent on Green to have so shown, for ic was a fact peculiarly within his own knowledge, and even if the duty was not on him, the longest discount period in Philadelphia is, by a well-settled custom, four months, and the jury would have been fully justified in finding that at least a part of these notes had been already paid ; and the payment of the notes by Garrett would be as good a payment, in relief of the bank, as if the money had been paid by its paying teller.
    Again, had Green brought suit against Garrett for money had and received, this would have been a waiver of his claims against the bank. This he has done in substance, for such a suit could only have resulted in a judgment for the amount of the checks, or, what is the same thing, for the amount of the notes. Precisely this result was reached when Green accepted the judgment note and entered it up. With such a condition of fact, it was error to withdraw the case from the jury and direct a verdict in favor of the plaintiff below. There was evidence from which to find, if indeed a presumption juris et de jure had not arisen, that the plaintiff had accepted Garrett as his sole debtor and exonerated the bank.

      H. B. Thompson and M. Hampton Todd for defendant in error.
    The bank could not justify the payment of our money on a forged indorsement, even if we had been paid for the notes for which, the checks with forged indorsements were given. This view it is unnecessary to urge, as there is not a particle of evidence to show that such notes were paid, but it is in evidence that Davis P. Garrett was indebted to Green in the sum of $4,775, as shown by his judgment note.
    April 9, 1883.
   — Per Curiam :

It is an undoubted fact that the bank paid out the money of the defendant in error on forged checks. The fact that the latter has obtained some collateral security to re-imburse him for the acts of the forger is no reason why a recovery may not be had against the bank. Nothing has been realized out of that alleged security. It is therefore no defense to this action. The facts are not sufficient to constitute an estoppel.

Judgment affirmed.


text:
    July Term, 1882,
    Nos. 153 and 154.
    January 19, 1883.
    Witmer, et ux., v. The Co-operative Building and Loan Association.
    1. In a scire facias upon a building association mortgage for $6,000, an affidavit of defense was filed, in which it was averred that the whole amount received from plaintiffs for and on account of said mortgage was $3,314; that $3,909 08 had been paid on account of said mortgage and interest; that allowing interest upon the amount received, there would appear to be a balance in favor of plaintiffs of $696 85, and that deponent believed, upon a proper statement of accounts being made, it would appear that the mortgage debt and interest had been nearly if not fully paid. Held, that the affidavit was insufficient.
    2. The statute against excess of interest does not apply to transactions of this character.
    3. An averment of belief that, on a proper statement of account, it will appear that the mortgage and interest have been fully paid, is too general to give effect to the affidavit beyond the specific sums alleged to have been paid.
    4. The Court may make the rule for judgment absolute, notwithstanding an interlocutory report of an auditor setting forth his inability upon the testimony before him to ascertain the amount due on the mortgage.
    Before Mercur, O. J.; Gordon,' Paxson, Trunkey, Sterrett, and Green, JJ.

      Error to Court of Common Pleas, No. 3, of Philadelphia County.

      Scire facias sur mortgage by The Cooperative Building and Loan Association against Elam F. Witmer and Maria, his wife.
    The mortgage upon which this suit was brought was a building association mortgage for the sum of $6,000, and was dated December 19, 1874. It recited that it was conditioned for the payment of $6,000 lawful money at any time within one year from the date thereof, together with lawful interest in like money, payable on the second Monday of each and every month thereafter ; and that the mortgagees should also pay into the said association the sum of thirty dollars on the second Monday of each and every month thereafter, as and for the monthly contribution on thirty shares of capital stock of the said association, owned by Elam P. Witmer, one of the defendants. Said mortgage also provided “ that if at any time default should be made in the payment of interest on the said principal sum or the monthly contribution aforesaid, for the space of six months after any payment thereof should become due and payable,” then the whole principal debt aforesaid should, at the option of the said association, become due and payable, and payment of the said 'principal sum and all interest, as well as any contribution on said thirty shares of stock then due, might be enforced and recovered at once. The scire facias alleged a default in the payment of interest and of the monthly contributions for more than six months.
    Elam F. Witmer, one of the defendants, filed an affidavit of defense, setting forth:
    “That the whole amount received from plaintiffs for and on account of said mortgage was the sum of $3,314, which amount was paid to this deponent in two separate payments, the last, to wit, the sum of $1,040, upon January 10, 1876.
    That there has been paid by this deponent to said association, on account of said mortgage and interest, the sum of $3,909 08.
    That allowing interest on the amount received for said mortgage from the date when received, there would appear to be a balance in favor of plaintiffs of $696 85.
    That said association has not furnished to this deponent any statement of its condition for over three years although frequently demanded — that deponent believes that upon a proper statement of accounts being made it will appear that said mortgage debt and interest has been nearly, if not fully, paid.”
    The affidavit of Maria Witmer, the other defendant, set forth the same facts with the further averment that the amount received from plaintiff ‘£ was paid to Elam F. Witmer, no part of which was ever received by this deponent.”
    The plaintiff took a rule to show cause why judgment should not be granted for want of a sufficient affidavit of defense, whereupon, after argument, the Court, on January 21, 1882, granted ££judgment for amount ad-’ mitted, said amount to be assessed by the prothonotary or his deputy, subject to exceptions.” On February 18,. 1882, the prothonotary assessed the damages at $3,665 07. Defendants then took a rule to reduce the assessment of damages, to support which depositions were taken. It was then referred to John I. Rogers, to report upon the amount due on the judgment. On May 13, 1882, the auditor filed an interlocutory report, being unable to decide the matter from the evidence submitted before, him. The Court took no action upon this report, and on June 17, 1882, amended the record by making, absolute the rule for judgmenc for want of a sufficient affidavit of defense, whereupon, on June 21, 1882, the prothonotary re-assessed the damages at $3,665 07.
    Defendants then took out a writ of error, assigning .for error the amendment of the record by making the rule absolute, and the granting of judgment against the defend-, ants, notwithstanding the interlocutory report of the auditor to whom the Court had referred 'the cause to report upon the amount due on the judgment.
    Case No. 154, between the same parties upon another mortgage for $2,000, was argued at the same time. The affidavit averred that deponent believed, upon a proper statement of accounts being made, it would appear that the mortgage debt and interest had been fully paid. The other facts and averments were the same, except as to amounts, as in No. 153.

      John A. Brown and Wm. H. Staalte for plaintiffs in error.
    The inability of the court below to determine the amount due shows that the rule should not have been made absolute.
    The affidavits of defense are sufficient, because they allege the facts which, if proved on the trial, would require the plaintiff to give evidence dehors the instrument: Purves *. Corfield, 1. Piulada., 174; Hutchinson*. Boggs, 28 Penn. St., 294.
    It warranted the legal inference of a full aud legal defense : Bryar *. Harrison, 37 Penn. St-., 233 ; Thompson *. Clark, 56 Id., 33; Selden * Neemes, 43 Id., 421; Bronson *. Silverman, 27 P. F. Sm., 94 ; Hemphill *. Eckfeldt, 5 Wh., 274; 1 Tr. & H. Pr., 380; Christy *. Bohlen, 5 Barr., 38 ; Chartiers R. W. Co. *. Hodgens, 77 Penna., 187; Conrad *. Rogers, 3 W. N. C., 157. The Court should have taken some action upon the interlocutory report of the auditor.

      E. C. Quin for defendant in error.
    The practice is to make the rule absolute when the Court considers the affidavit insufficient: 1 Tr. & H. Pr., 375. The reference to the prothonotary to assess damages was superfluous, as it was his duty to do so without the reference. The reference to the auditor gave the defendant extraordinary opportunities to show any mistakes : 1 Tr. & H. Pr., 375 ; Watkin *. Phillips, 2 Wh., 210 ; Bank *. Thayer, 2 W. & S., 448 ; N oble *. Laley, 50 Penn. St., 281. The depositions are no part of the record: Gteorge *. Assn., 36 Leg. Int., 126.
    The averment that the whole amount received was $3,314 is not sufficient even between individuals : Bruner *. Wallace, 4 W. N. C., 53. In building association mortgages the difference between the amount received and the amount of the mortgage is bonus, which is protected by statute: Act 12, Apl., 1859, s. 4, Purd. Dig’., 184; Act 29, Apl., 1874, s. 5, Purd. Dig., 1832; Act 10, Apl., 1879, P. L., 17 ; Ass’n *. Keller, 2 W. N. C., 29 ; Ass’n *. Neurath, 2 Id., 95 ; Selden *. Ass’n, Id., 481 ; Ass’n *. Mixéll, 84 Penna., 313 ; Watkins *. Ass’n, 10 W. N. C., 414 ; Phillips *. Ass’n, S. C., July T., 1878, No. 125.
    The averment that $3,909 08 was paid on account of said mortgage and interest is vague and uncertain: Peck *. Jones, 70 Penn. St., 83; Phillips *. Ass’n, supra; Fisher *. Stokes, 1 Tr. & H. Pr., 379; Fluck *. Hope, 1 W. Ñ. C., 42 ; Belcher *. Zane, 1 W. N. C., 42 ; Baird *. Adams, Id., 144. The defendants having been allowed this credit, they have no right to complain.
    The averment that there appears to be a balance of $696 85 does not include the premium to which plaintiff is entitled, and does not state the balance with certainty: Saving Fund *. Morrison, 1 W. N. C., 282 ; Cummings *. Bleim, Id., 432; Ass’n «. Bertolet, Id., 472 ; Bank*. Muller, 2 Id., 50.

      It is not alleged that it is the duty of the association to furnish a statement of its condition : Lord v. Ocean Bank, 20 Penn. St., 387. The affidavit should be taken least favorably to the party making it: Marsh v. Marshal], 53 Penn. St., 396 ; Blackburn v. Ormsby, 41 Penn. St., 97.
    Even if the report of the auditor had been in favor of defendants, it could have been set aside by the Court.
    January 29, 1883.
   — Per Curiam :

The statute against excess of interest does not apply to transactions of this character. The specific sum averred in each affidavit of defense, to have been paid, was allowed and applied as a payment on the mortgage. The further averment of belief that, on a proper statement of accounts, it would appear in one case that the whole mortgage had been paid, and that the other was nearly, if not fully, paid, was, in each case, too general to give effect to the affidavit beyond the specific sums alleged to have been paid.

Judgment affirmed in each case.


text:
    January Term, 1883,
    No. 241.
    March 27, 1883.
    Young’s Appeal.
    1. The fact that each of the complainants has sustained the same kind of an injury is not sufficient to authorize them to file a joint bill, where the cause of complaint is separate and distinct.
    2. Where a bill disclosed that its principal object was to recover damages for an alleged fraud in making the contract, it was properly dismissed, since the complainants had a full, complete, and adequate remedy at law.
    3. A prayer for a rescission of the contract, upon the ground of fraud and conspiracy, does not relieve the bill from the fatal consequences of no joint cause of action.
    Before Mercuk, C. J.; Gordon, Paxson, Trunkey, and Green, JJ.
    Appeal of William Young, William B. Young, and Benjamin Franklin Young from a decree of the Court of Common Pleas, No. 2, of Philadelphia County, dismissing a bill in equity, filed by them against James T. Beber, George G. Heilman, Samuel Berrett, Thomas Brown, James Koch, Joseph Coblentz, Adam Bard, Charles Henninger, Adam Funck, and Henry Mosser.

      The bill averred that in November, 1881, and for some time prior thereto, the defendants were the owners of four hundred and forty-six shares of the capital stock of The Pennsylvania Graphite Mining and Manufacturing Company, held by them in certain proportions therein stated ; that the said company was incorporated in 1876, under the laws of the State of Pennsylvania, with a capital stock of five hundred shares of $100 each, its object being the mining and manufacture of graphite, upon property owned and leased by it at Byer’s station, Chester county, Pennsylvania; that during November, 1881, and for some months before, the said defendants, through five of their number, the said Reber, Berrett, Henninger, Koch, and Coblentz, entered into negotiations with complainants for the purchase of the said four hundred and forty-six shares of stock owned by them, and as an inducement for the purchase thereof, represented to complainants that the business of the company was in a most prosperous condition, and then paying large dividends ; that the deposit of ore upon the company’s property was unlimited, and could not be worked out_; that the veins upon the property were rich and productive, yielding and producing the best quality and character of graph! te; that the price realized from the sale of the manufactured product so largely exceeded the cost of its manufacture that it was a most successful enterprise, and that large profits were resulting, and would still result, from the same; that the supply of the graphite, as manufactured in this property, was not equal to the demand for the same; that there was always a cash market for it; and that all graphite manufactured at the works had been, and could be, sold for cash to J. H. Gautier & Co., of Jersey City.
    That the said month of November, 1881, and during said negotiation, the said Reber, Berrett, and Henninger, for themselves and on account of the other defendants, visited the said mines and manufactory of the said company with complainants, and as a peculiar inducement for the purchase of the said stock thus represented, for themselves and in behalf of the other defendants, that the manufactory was in good and complete working order; that new machinery had been introduced, which had increased the facilities for business ; that the company was then in a condition for the successful and profitable operations of its business, and that the vein of ore then being worked was one of the best veins that had been found upon the premises ; that the process of manufacture was easily understood, and in the care and management of one-Ruth as the foreman of the company’s works ; and that in case of the purchase of the stock they would give complainants all the instructions and information necessary for the proper management of the business; that complainants, relying upon these representations of defendants, induced thereby and having no other sources of information as to the same, concluded the purchase of the said stock with said defendants for the sum of $51,980 00, and paid them in different amounts, according to the respective number of shares owned by each of them, the sum of $51,980.
    The sixth averment of the bill is as follows:
    • “ That the purchase of said stock was finally concluded with said Funck on twenty-first day of December, 1881, with the said Reber, Berrett, Bard, Heilman, Coblentz, and Mosser, on the third day of December, A. D. 1881, with said Brown and Koch on the second day of February, A. D. 1881, and with said Henninger on the twenty-fifth day of February, A. D. 1882, that said stock was assigned to your orators in equal third parts by the said defendants respectively, who received from your orators the aforesaid sums of moneys therefor in cash, amounting to the said sum of $51,980, excepting that the said Berrett received three promissory notes therefor, for the sum of $1,146 37 each ; one of which yms drawn by William Young, one of your orators, to the order of said Berrett, and the two remaining notes were drawn by AVilliam B. Young and Benjamin Franklin Young respectively, and indorsed by said William Young to said Berrett, due September 1, 1882, and excepting that said Thomas Brown received three certain promissory notes, two of them for the sum of $1,540 each — one of them made by William Young, one of your orators, to the order of said Brown, and the other of these notes by William B. Young, one of your orators, drawn to the order of said William Young, and indorsed by him to the said Brown, due February 3, 1883, and one of the notes of B. F. Young to the order of William Young, indorsed by and to the said Brown, due February 3,1883, and excepting that said James Koch received the promissory note of B. F. Young, one of your orators, to the order of William Young, one of your orators, for the sum of $1,100, due February 3, 1883, and excepting that said Henninger received two promissory no tes of B. F. Young, one of your orators, to his own order, for the sum of $500 each, due August 25, 1882; also a promissory note for the sum of $700, due November 25,1882, and also another promissory note for $500, due February 25, 1883.”
    The seventh paragraph of the bill sets forth that the complainants had assumed the management of the corporation business and expended $8,000 in the manufacture of graphite from the product of its property without effect; that complainants had discovered and averred that the various representations made to them by defendants were false and fraudulent; that defendants, though requested, had refused to give complainants any information relative to the working of the said mines and the manufacture of their product. The bill also averred that the defendants and each and all of them had, at the time of the negotiation and sale of the stock as aforesaid, knowledge of the statements and representations as aforesaid that were made to complainants, which induced the purchase thereof, and that the same were false, fraudulent, and untrue; that they knew each and all of them at the same time had knowledge that the said business of the said company was not in a prosperous condition ; that no dividends had been j>aid for the said period of two years preceding said sale; that the property of said company did not contain deposits of sufficient quantity for a successful management of its business ; that the veins then upon the property contained ore of an inferior quality, which produced an inferior article of manufacture and utterly unmarketable.
    It then prayed:
    (1.) That the contract of sale be decreed null and void. (2.) That the defendants and each and every of them be decreed to return all moneys paid to them by the plaintiff as the purchase money of the stock with interest thereon. (3.) That the defendants and each of them be enjoined from using, indorsing, or disposing of the promissory notes given and indorsed by the plaintiffs or either of them as the purchase money of the stock. (4.) That the defendants and each of them be decreed to surrender, release, and deliver unto the plaintiffs the said promissory notes and each and every of them. (5.) That the defendants and each and every of them be decreed to pay unto the plaintiffs the sum of $8,000, paid and expended by them in the management of the business of the said company, or make restitution.; and (6.) General relief.
    The defendants demurred, specifying, inter alia-.

      First. The complainants have a full, adequate, and complete remedy at law.

      Second. The statement of the case in the bill does not disclose any joint liability on the part of the defendants. The liability, if any, upon the facts stated in the bill, is several.

      Fourth. The bill does not aver that the complainants jointly purchased the stock ; on the contrary, the facts as stated in paragraph VI of the bill show that it was an individual purchase by each of the complainants, and hence the complainants have no joint title to the relief prayed.

      Eighth. Because relief is prayed against all the defendants jointly in respect of promissory notes held by, and sums of money received by, them, or some of them, individually.
    After hearing on bill and demurrer, the Court entered a decree sustaining the demurrer and dismissing the bill without prejudice. The complainants thereupon took this appeal, assigning for error the entering of the above decree.

      William Henry Lex and Samuel Walceling for appellants.
    Equity has full jurisdiction by reason of the fraud complained of: Evans v. Bicknell, 6 Ves., 174; Blair v. Bromley, 2 Ph., 354; Adams on Equity, page 350: McElhenny v. Hubert Oil Co., 11 P. F. S., 188.
    It will rescind the contract, replace the parties in the same position as they were before, and decree a restoration : Bispham’s Equity, pages 199, 201, 207, 208.
    As to the second and fourth causes of demurrer:
    The bill avers that at the time of the negotiation and sale of the stock, a conspiracy and unlawful combination existed on the part of the defendants to deceive and defraud the plaintiffs. It avers that all of them had knowledge of the representations made ; that they were made by them and in their behalf; that they induced the purchase ; that they were false and untrue ; and that Beber, Berrett, Henninger, Koch, and Coblentz acted on behalf of all at the time of the representations and negotiations; and that Beber, Berrett, and Henninger, on behalf of all, visited the mines with plaintiffs, and made the representation of fraud as charged. All of the stock was sold under the same negotiations, and by the same representations, and the sale of it was concluded about the samé time. The stock was sold by each defendant under the contract, and they each assigned their respective shares to each of the plaintiffs in equal third parts. All were paid in the same manner, showing a common intent and joint action. Consequently, all parties are liable for the full extent of the fraud practiced which induced the purchase. They are responsible for the false representations made, even if they had no interest in the deception : Weed v. Case, 55 Barb., 547, Note to Bispham’s Equitv, page 207.
    As to the joinder of all the parties, they are all entitled to be joined, as the cause grew out of the same transaction, where both plaintiffs and defendants were interested in the same right, and the relief sought is of the same general nature. In this case there was no distinct, independent, and separate causes of complaint requiring diferent defenses and different decrees: Cumberland Valley Railroad Company’s Appeal, 12 P. F. S., 218; Young v. Allegheny Oil Company, 10 Phil., 525 ; Calvin on Equity, page 2.
    - The duty of restoring the stock and of surrendering the notes is therefore a joint one.
    As to the eighth cause of demurrer:
    All the defendants having derived a benefit from the plaintiffs through the false representations inducing the purchase of the stock, and all knowing that such representations were false, and that the notes had, given, and indorsed, for part of the purchase money, all are entitled to be decreed to surrender the notes, and protect the plaintiffs from all injury by reason thereof.
    P. F. Rothermel, Jr., George F. Baer, and George Tucker Bispham for appellees.
    It is submitted that it is well settled in both England and in this country that such a bill as this will not lie for the reason that the plaintiff has a full and adequate remedy at law : Mackintosh v. Tracy, 4 Brewster, 59 ; Patterson ». Lane, 11 Casey, 275; Ambler v. Choteau, 1 Supreme Court Reporter, 556. The rule is the same in England: Newham v. May, 13 Price, 749, and has been recognized in this country: Russell v. Clark, 7 Crunch, 69 ; Hardwick v. Forbes, 1 Bibb., 212 ; Woodman v. Freeman, 25 Maine, 531.
    Nor is it clear from the statement of complainants’ case in the bill that there is any joint liability whatever. The facts show a several liability. The bill states that the stock was owned individually; that the negotiations, though begun by some on behalf of all, concluded with the owners as individuals ; that the terms of purchase with the various owners varied as to price; that the contracts were consummated at different dates ; and that when negotiable securities were given, they were given to the individual owners and not to the defendants jointly.

      April 9, 1883.
   — Per Curiam:

We think the evidence fails to disclose any joint cause of action in the appellants. The cause of complaint is shown to be separate and distinct in each. It is not sufficient that each has sustained the same kind of injury. This does not authorize them to file a joint bill. The principal object of this bill is to recover damages for an alleged fraud’ in making the contract. To recover these the appellants have a full, complete, and adequate remedy at law. The prayer for a rescission of the contract does not relieve the case from the fatal consequence of no joint cause of action in the appellants.

Decree affirmed, and appeal dismissed at the costs of the appellants.


author: Sterrett J.:

text:
    PIKE COUNTY.
    January Term, 1881,
    No. 234.
    October 1, 1883.
    Quick v. Van Auken.
    1. Where there were eight judgments against one person, some of which were held by the plaintiff in his own right and others by his wife, it was competent for the parties, plaintiffs and defendant, to settle by mutual agreement the form of the issue that should determine how much, if anything, the defendant owed on the aggregate amount of the judgments.
    2. To change or alter a written agreement, the proof must be clear, precise, and indubitable.
    3. It is not error to submit to the jury evidence of a subsequent parol agreement between the parties qualifying a chattel mortgage and suspending the right of foreclosure unless with the assent of a coówner and the mortgagor.
    4. Where the holder of a chattel mortgage made under the laws of another State upon a horse sells the horse contrary to agreement, for an inadequate price, without the knowledge or consent of the owner, himself becoming the purchaser, and thereafter holds and uses the horse as his own for nearly two years, the owner is not bound to accept a tender of the horse at the price for which he was sold, but has the right to treat the mortgagee as a wrong-doer, and hold him for the value of the horse at the time of the illegal sale.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, and Sterrett, JJ.; Green and Clark, JJ., absent.
    Error to Court of Common Pleas of Pike County.

      Peter A. L. Quick, and Peter A. L. Quick and Catharine, his wife, in right of said Catharine against D. M. Van Auken.
    The plaintiffs held eight judgments against defendant, amounting in the aggregate to $6,670. A. fl.fa. having been issued upon one of these judgments, the defendant claimed to have a defense to all of them, and petitioned the Court to open the judgments and for equitable relief. Whereupon the parties entered into the following agreement, which was filed of record :
    “Issue upon judgments No. 104, December Term, 1877 ; No. 32, May Term, 1877; No. 61, February Term, 1878; No. 62, February Term, 1878 ; No. 63, February Term, 1878; No. 64, February Term, 1878; No. 57, December Term, 1874 ; and No. 51, February Term, 1877; which are opened. The whole to be tried under one issue to May Term, 1880, the notes to stand as a declaration, and the plea of payment, set-off, &c., to stand for the plea. The questions raised by the affidavit to open the judgments to be the questions investigated.”
    The affidavit to open the judgments set out, inter alia, that in March, 1879, the defendant executed a chattel mortgage to Greorge TI. Rowland and Peter A. L. Quick for $6,000, upon a stallion ; that there was a written agreement (setting out its terms); that this agreement was “ so far modified that no part of the money so realized shall be under the direction of said V,an Auken until the judgments of the said first part and of Catharine A. Quick are fully jjaid, and that said stallion shall not be sold before the 12th day of April, 1878, by private sale or under proceedings of foreclosure, and on said 12th dáy of April (or any time thereafter), only for such price as shall be agreed upon by the parties, or a majority of them ;” that, without the knowledge of the defendant or Rowland, Quick sold the stallion in October, 1878, and, “at this illegal and fraudulent sale, became the purchaser; ” and that the stallion was of greater value than the indebtedness.
    Upon the trial in the court below, the following facts appeared :
    Defendant in these judgments had, under the laws of New York, executed and delivered a chattel mortgage to Peter A. L. Quick and Greorge H. Rowland, upon a certain bay stallion, called “ William M. Rysdyk,” to secure the payment of judgments held against him by said Quick and by said Rowland ; and, by certain agreements in writing, it was agreed that in case of the sale of said horse, the money arising from said sale should be applied, pro rala, to the payment of judgments as the same were owned by George II. Rowland, Peter A. L. Quick, and Catharine A. Quick, on the 10th day of May, 1876 ; that said stallion should not be sold before the 12th day of April, 1878, at proceedings under foreclosure of a certain chattel mortgage made by the said Van Auken, and, on said day, only for such price as should be agreed upon by the parties to said agreement, or a majority of them. These agreements were signed by G. H. Rowland, P. A. L. Quick, and D. M. Van Auken.

      Mr. Van AuJcen testified that there was a further agreement, not in writing, that the horse should not be sold at any time in the future, unless he and Quick agreed to the price.
    On October 26, 1878, the plaintiff, P. A. L. Quick, sold the stallion and bought it in for $1,060, without the knowledge or consent of defendant. The defendant asserted that the price was inadequate, and the plaintiffs denied it. There was a conflict of testimony as to the value of the horse at the time of the sale.
    The defendant being on the stand, plaintiff proposed to ask him whether Mr. Quick did not offer to “sell back this horse to you if you would pay to him the sum of $1,050, just what he bid the horse off at, and, in addition thereto, whatever expense the horse has been to him over and above his earnings.” The Court overruled the offer.
    The Court below charged the jury, inter alia, as follows:
    “The defendant in these judgments, alleging that he had an equitable defense, made application and procured the decree of this court opening these judgments and letting him into a defense. That defense consists substantially in the allegation that a certain stallion, known as ‘William M. Rysdyk,’ had been received by the plaintiffs as collateral security for these judgments ; that the plaintiff, Quick, had disposed of that stallion, contrary to the understanding and agreement between the parties, at an inadequate price, and that Mr. Van Auken, the defendant in the judgments, is entitled to a credit upon these judgments to the extent of the value of that horse, as the evidence shall have established it before you.
    There are certain questions of law which it becomes our duty to pass upon, and then there are certain questions of fact which we will refer to you, and which it will become your duty to pass upon; but before delivering the general charge, we propose to call your attention to certain points which have been submitted on the part of the plaintiffs in the judgment, and to give you such instructions as we deem proper and pertinent.
    We have been requested to instruct you:
    ‘1. The defendant having given to the plaintiff and Rowland a chattel mortgage upon his horse, and said mortgage being due and unpaid, the plaintiff had a legal right to foreclose said mortgage and sell said horse, at any time, under the laws of the State of New York, and such sale would pass a perfect title to the said horse; and the plaintiff would be obliged to account to the said defendant for all the proceeds of said sale, if said mortgage was held as collateral to the judgments included in this issue.’
    This proposition we affirm, unless the parties, by a valid agreement, qualified the chattel mortgage, and by such agreement suspended the legal right of Quick to foreclose without the assent of Rowland and Yan Auken.
    We refer that matter, as a question of fact, to the jury, which, under the evidence, is to be ascertained by them.
    ‘ 2. After such agreement was executed and delivered as collateral to any indebtedness of defendant to plaintiff and Rowland, they or either of them had the right to control it, and any agreement of Quick or Rowland to stay the proceeding, or not to sell without the consent of Yan Auken, was void, unless made upon a valid consideration; and, there being no proof of any consideration passing from Yan Auken to Quick for such an agreement, the same was void, and Quick had the right to foreclose without the consent of Yan Auken.’
    This proposition we will be obliged to negative, because it asks us to settle a question of fact upon which there is evidence. You are warranted in taking all the evidence in the case, and you will ascertain from it whether there was an agreement between Quick and Yan Auken for a valid consideration; and, in so doing, you are to take into account the various agreements which they made from time to time, and the understanding that existed between them in regard to the control and management of this horse, which remained in Yan Auken up until 1878, that, while the chattel mortgage had been executed, he was allowed to retain the possession and control, and to receive the proceeds of the use of that horse up and until 1878, when he turned over those proceeds to Quick under an agreement to which we shall directly call your attention.
    ‘ 8. That by the proceedings in the State of New York, Quick either obtained a good title to the horse — in which case the sale was valid, and the purchase-money is to be accounted for by him — -or the sale was void for fraud, in which case no title passed to Quick, and the horse is still the property of Yan Auken, in which case the defendant cannot claim any allowance for the value of the horse as a set-off, or have the same apply upon the judgments in this issue.’
    This proposition, being in the alternative, we will be obliged to negative. There might have been a good and valid sale of that property, by which the title passed to Quick, under the foreclosure of the mortgage, but if a proper and fair agreement existed between these parties that no such sale should be held, except upon the consent of two of the parties to the agreements accompanying that mortgage, and Quick in bad faith went on and sold that horse without notice to Yan Auken — if you find from the evidence that it was given as collateral security, and both parties testify to that — then, as a matter of law, the defendant would be entitled to recover or have set off against these judgments such amount as you shall find the value of that horse to have been at the time it was sold on the 26 th of October, 1878.
    ‘ 4. Under the evidence the only amount to be applied from the sale of the horse is that part of the $1,050, for which the horse sold, which belonged to Quick, under the agreement of Quick, Howland, and Yan Auken.’
    Having already referred this question to you, as a question of fact under the evidence, and having negatived it by the preceding answer, we must answer this proposition in the negative.
    ‘5. Van Auken, the defendant, cannot take advantage of any want of notice from Quick to Howland of the sale.’
    This proposition, as an abstract principle of law, is affirmed.
    ‘6. As far as appears in this case, the foreclosure of the mortgage upon the horse of defendant ivas legal, or in accordance with the laws of the State of New York, and if this is so, otherwise the burden of proof was upon the defendant to show it.’
    This proposition we affirm.
    ‘7. The foreclosure sale being valid and in accordance with the law, the fact that the defendant had no notice of such sale does not permit him to claim any allowance, even if the jury should find that the horse sold for less than his full value.’
    This proposition we negative. We have already said to you that if the evidence satisfies you 'that there was an agreement between these parties, by which this horse was transferred to Quick, and to his control as collateral security for the payment of these judgments, and he, in bad faith, sold that horse without notice to Yan Auken, Yan Auken is entitled to a credit upon the judgments for the value of that horse, as the evidence shall establish it in your judgment.
    ‘8. To change or alter a written agreement the proof must be clear, precise, and indubitable.’
    This proposition we affirm. The law holds that, when parties have reduced their agreements to writing, the writing is not only the best, but the only evidence of the agreement of the parties, unless fraud or mistake is shown in the.execution of that paper.
    The allegation of the defendant is that a subsequent agreement was made in reference to this point in the case, and we have simply to say to you that the parties were competent to make a subsequent agreement, and that if they made a good and valid agreement for a valuable consideration, it was binding upon the parties, notwithstanding they may have previously executed a written contract.
    ‘9. The defendant having set up-in his affidavit, which forms the declaration in this issue, that the sale of the horse by the plaintiff under the foreclosure was illegal and fraudulent, and if the plaintiff became the purchaser at such illegal and fraudulent sale, he can not claim the value of such horse in this issue.’
    This proposition we negative.
    In considering the question as to the agreement which was entered into between these parties, you are to look at all the evidence, as we have said to you, relating to the conversations and the actions of the parties, Yan Auken, Quick, and Rowland, in their going to Seneca county, New York, in their making various agreements, and in their renewing from time to time this mortgage. We refer to you the question of fact as to whether this horse was delivered to Mr. Quick and put into his control, or quasi control — because Mr. Yan Auken in effect controlled him — simply as collateral security for the money which Mr. Quick advanced for Mr. Yan Auken’s use upon the judgments which have been given in evidence. If you shall find that that was the fact, then [we refer to you the next question as to whether Quick, in bad faith, and in contravention of his agreements, sold that property and reduced it to his possession for an inadequate price, without the consent and knowledge of Yan Auken.
    If he did, we say to. you, as matter of law, that Yan Auken is entitled to a credit upon these judgments to the extent of the value of that horse, as it shall be established by the evidence. As you shall find these two facts, you will decide this case under the instructions we have given you.”]
    Mat 21, 1880. — Jury find credit for defendant for the sum of $4,6(3(3 66$, which, by computation, agreed upon by counsel, "was made a verdict for plaintiff for $1,959 88 upon which judgment was entered.
    Plaintiffs then took out a writ of error, assigning as error that the Court erred in permitting to be tried, without formal pleadings or issue, the matters appearing on the record, in permitting to be tried the question of the amount due upon "several judgments owned by distinct parties; in treating the eight judgments as opened; in letting in matters of defense subsequent to the judgments ; in rejecting plaintiffs’ offer to prove that he offered to sell back the horse to defendant for $1,050 and the difference between his earnings and expenses ; in permitting defendant to prove the condition of the horse, its description and value; in permitting defendant to prove a parol agreement that the horse should not be sold, except with the consent of two of the parties; in the answer to the first, second, third, fourth, seventh, eighth, and ninth points, and in that portion of the charge inclosed between brackets.

      George M. Dallas for plaintiffs in error.
    The proceedings are irregular, and let in matters subsequent to the judgments: Curtis v. Slosson, 6 Barr, 265.
    Considering this as an equitable proceeding, the offer on the part of the plaintiffs to do equity should have been admitted.
    If the sale was illegal and fraudulent, the mortgagor should have given notice of his disaffirmance of the sale.
    The writing alone must be taken as the evidence of the agreement, and should not be varied by parol.

      George G. Waller for defendant in error.
    The parties had a right to make the agreement to try several judgments in one issue.
    If plaintiffs took wrongful possession of the horse,, they cannot avoid the responsibility by offering to return him. Fox v. Northern Liberties, 3 W and S., 103, and 'the effect would be the same where the value of the property taken and sold is set off in a judgment: Christy ®. Sill, 14 Norris, 380.

      Parol evidence is admissible to vary written instruments.
   October 1, 1883.

— The opinion of the Court was delivered by

Sterrett J.:

The defendant, claiming to have a defense to eight judgments held by the plaintiffs, petitioned the Court for equitable relief, and thereupon a written agreement was entered into by the parties that an issue, embracing all the judgments, should be framed for the purpose of determining how much, if anything, was due thereon. The judgments, aggregating over §56,000, were opened by the Court, and it was agreed that.the whole should “be tried under one issue to May term, 1880, the notes to stand as a declaration, and the plea of payment, set off, &c., to stand for a plea. The questions raised by the affidavit to open the judgments to be the questions investigated.” Notwithstanding some of the judgments were held by the husband in his own right, and the others by his wife, it was clearly competent for the parties, plaintiffs and defendants, to settle, by mutual agreement, the form of the issue that should determine how much, if anything, the defendant owed on the aggregate amount of the judgments. It is time a separate issue might have been framed as to each judgment, but that would have been attended with increased trouble and expense, which it was doubtless the desire of the parties to avoid. After trial on the merits, technical objections to the issue come with very bad grace from the party whose success was not equal to his anticipations. The several assignments of error relating to "the issue, its alleged irregularity, &c., are not sustained.

The question presented by the issue was one of fact, exclusively for the jury, and their verdict should not be disturbed unless manifest error intervened during the course of the trial.

As stated by the learned judge in his charge, the defense substantially was, that a valuable stallion, which had been received by the plaintiff, Quick, as collateral security for the judgments, had been disposed of by him, contrary to the understanding and agreement of the parties, for a grossly inadequate price, and consequently the defendant in the judgments is entitled to credit thereon for the full value of the horse thus wrongfully disposed of. Testimony tending to prove these allegations was introduced, and it also appeared that the horse in question was the subject of a chattel mortgage to Quick, the plaintiff, and one Rowland, in the State of New York. In view of the defense set up and the testimony introduced to sustain it, the plaintiffs requested the Court to charge that “the defendant having given a chattel mortgage on his horse, and the mortgage being due and unpaid, the plaintiffs had a legal right, under the laws of the State of New York, to foreclose the mortgage and sell the horse at any time, and such sale would pass a perfect title to the horse; and plaintiffs would be obliged to account to defendant for the proceeds of sale, if said mortgage was held as collateral to the judgments included in this issue.” This controlling proposition was affirmed by the Court unless the jury should find that the parties, by a valid agreement, qualified the chattel mortgage and thereby suspended the legal right of Quick to foreclose the mortgage without the assent of Rowland and Van Auken.

There was some testimony tending to prove the alleged agreement qualifying the terms of the chattel mortgage, and the same was submitted to the jury, in connection with the foregoing answer to plaintiffs’ point, in which reference is made to the agreement. The case was thus made to turn upon the question of fact, whether such qualifying agreement was made or not. The verdict conclusively proves that the jury found the fact as alleged by the defendant. Other points relating to the alleged agreement, and the legal effect thereof, were submitted to and correctly answered by the Court. The testimony tended to prove mutual promises by one party to the other, in regard to the time and manner of selling the horse, in case a sale should become necessary. This evidence was for the jury, and if they found that such mutual promises were made, they were a sufficient consideration for the agreement alleged and relied on by the defendant. The rule of law, as to the nature and degree of evidence necessary to change or alter a written agreement, was properly given to the jury. They were instructed that “the proof must be clear, precise, and indubitable.” The subject of complaint in the 11th specification is the refusal of the Court to permit plaintiffs to prove that, nearly two years after the sale, they offered to return the horse to the defendant. If it was true, as alleged by defendant, that Quick, in bad faith, and in contravention of their agreement, sold the horse for an inadequate price, without defendant’s knowledge or consent, and thereafter held and used him as his own for nearly two years, the defendant was not bound to accept the alleged tender. Under the circumstances, he had a right to treat Quick as a wrong-doer, and hold him for the value of the horse at the time of the illegal sale; and so the learned judge in substance instructed the jury. We discover no error in the admission or rejection of evidence. The testimony was such as to warrant the Court in submitting to the jury the several questions of fact above referred to, and' that appears to have been done in such a way as to be free from substantial error.

Judgment affirmed.


text:
    SCHUYLKILL COUNTY.
    January Term, 1882,
    No. 50.
    April 16, 1883.
    Bright v. The Mountain City Banking Company.
    1. In a suit by a bank against an accommodation indorser, on a promissory note which the plaintiff had discounted for the maker, the defendant offered to prove that during the time of the running of the note in suit, and the notes of which it was the final renewal, the plaintiff, within three years before suit brought, received usurious interest upon various other notes discounted by the plaintiff for the maker. Held, that as to such usurious payments, more than six months prior to the filing of the plea, the evidence was properly rejected, and that it was an offer neither of payment of the note in suit nor of set-off against it.
    2. Where a statute authorizes a corporation to invest its capital in notes, and to purchase and hold securities in payment of the debts due it, the discount of notes by it is not ultra vires.

    Before Mercur, C. J., Gordon, Tritnkey, Sterrett, Green, and Clark, JJ. ; Paxson, J., absent.
    Error to the Court of Common Pleas of Schuylkill County.

      Assumpsit October 31, 1873, by The Mountain City Banking Company against Joseph C. Bright to recover on a promissory note on which the defendant was an in dorser.
    At the trial in the court beloiv, the following facts appeared : The note upon which the suit was brought was dated Philadelphia, May 1, 1873, and was drawn for $4,500 at four months by George J. Richardson to the order of John Lucas & Company.

      It was indorsed:
    “John Lucas & Co.
    J. C. Bright.”
    And was protested September 4, 1873.
    This note was the last of a series of notes discounted by plaintiff, each for $4,500, made by George J. Richardson to John Lucas & Co., and indorsed by them and Joseph C. Bright. The original note had been renewed every four months until the making of the note in suit. The discount on the note in suit was $221 67. It was admitted that the interest on the original note and its renewals would be $723 75, that the total received by plaintiff was $1,920 11, and that the difference was $1,196 86. The proceeds of the note were paid by plaintiff to Richardson.
    Defendant offered to prove “that during the time of the running of the note from December 27, 1870, up to October 14, 1872, during the time the note in suit, and the notes of which it is the final and last renewal were held by the plaintiff, that the plaintiff received from George J. Richardson usurious interest on numerous notes discounted by the bank for Richardson and Lucas & Co., prior indorsers, to the amount of $2,500 and upwards.”
    The plaintiffs objected.
    Defendant added to the offer “that the principal debts of all the notes upon which usurious interest was charged by the bank and which is set up here as a discharge of the liabilities of the defendant have been paid.”
    The Cottkt : “The offer was to introduce evidence of a payment of usurious interest by Richardson and Lucas & Co. to this bank upon other notes, other transactions between them than the one in suit. There is no doubt but that Bright, the indorser, can avail himself of any defense which Richardson, the maker, could make if he was sued upon this note and the material question is, what the rights of Richardson would have been which the indorser here can avail himself of. When the other notes spoken of in the offer matured, Richardson had the right to refuse to pay any interest above six per cent. ; if he did pay it, the bank had the right to receive it and violated no law in receiving it. It having been received by the bank, Richardson then had the further legal right to institute a suit, at any time within six months, to recover the excess of six per cent, which he had paid to the bank, or might avail himself of it, as a set-off, if a suit was brought against him by the bank upon other notes. Prom the time the borrower pays to the lender interest in excess of six per cent., he becomes a creditor to the lender to that extent. The conclusion we have come to is that Mr. Richardson, after the lapse of six months from the time that he paid this excess of six per cent., could neither sue the bank to recover it back nor avail himself of it as a set-off, and that the statute runs from that time. We think there is authority for this in a recentcase: Stephens v. Monongahela National Bank, 7 Norris, 157 ; also, refer to Gilmore v. Reed, 26 P. F. Smith, 462. We think that what is proposed here may be used as a set-off, but that it must be limited to transactions which occurred within six months prior to the filing of the plea under the decision in Gilmore v. Reed.” Exception. (First assignment of error.)
    The following offer was then made by the defendant:
    “It having been shown that J. C. Bright, the defendant, was an accommodation surety only upon the note in suit, and that the plaintiff had knowledge of that fact, the defendant now offers to prove that the following payments of usurious interest in excess of legal rates were paid by George J. Richardson, the maker of the note in suit, to the plaintiff on loans other than the one in suit. (Setting them forth ; the first being January 16, 1871, and the last, October 14, 1871; amounting to $2,724 40.) All the loans upon which usurious interest was paid have been paid in full to the plaintiff by George J. Richardson, and before the maturity of the note now in suit. For the purpose of raising the question as to whether the bank was not bound to apply it as between the surety and the principal.”
    Objected to, and overruled for the same reasons. (Second assignment of error.)
    Counsel for defendant offered in evidence the act, April 8, 1870, P. L., 1051, incorporating the Pennsylvania Insurance Company of Pottsville, “ with all the rights and privileges, and subject to all the resti’ictions ” in the act to incorporate the Allentown Fire Insurance and Trust Company. (May 4, 1869, P. L., 1253.)
    They also offered the latter act, which, in Sec. 4, provides :
    ‘ ‘ That it shall be lawful for said company to invest its capital, premiums, and profits, oxx real or personal security, in bonds, notes, mortgages, gx-ound-rents, judgments, stocks and loans of the United States, and State of Pennsylvania, and stocks ox’ loans o£ any boroxxgh, city, or institution incox-porated by the laws of this Commonwealth, and in other good securities, and to sell, transfer, and change the same, and re-invest the funds of said company when the directors shall deem it expedient; it shall also be lawful for said company to receive, purchase, or hold any real or personal property, stocks, or other securities in payment of the debts due them, or to secure the same in any manner that the interests of the company may require, or to purchase and hold such real estate as may be necessary to accommodate the said company in the transaction of the business thereof, and to sell, assign, and convey the same in fee-simple or otherwise.” This act further provides that the company should be organized and managed according to the provisions of the act of April 2, 1856, and its supplements, except so far as the same is altered, changed, or provided for by this act.
    They also offered the act of April 2,1856, P. L., 213, and its supplement of May 1, 1857, P. L., 380, and the act of April 4, 1872, P. L., 063. The last act changed the name of the Pennsylvania Insurance Company of Pottsville to that of “Mountain City Banking Company” (the plaintiff ), and provided, inter alia, as follows : ‘ ‘ That all insurance privileges of the said company be, and the same are, hereby repealed ; reserving to said company the right to receive deposits and to invest the same agreeable to the provisions of said act, and all the trust and other privileges thereunto belonging ; and that, hereafter, said company and the capital stock thereof shall be subject to such taxation as is now imposed upon banks created under the laws of this Commonwealth, and none other.”
    Sec. 8, of the act of April 2, 1856 {supra), provides: “Any company incorporated under this act shall not have nor exercise the powers of savings or discount institutions.”
    The act of May 1, 1857 {supra), provides that “nothing contained in the ninth section of the act to which this is a supplement shall be so construed as to authorize any company incorporated under the provisions of said act to invest or employ their capital stock, or other moneys, in the purchase of, or discount of, or advance upon promissory notes, bills of exchange, or other negotiable paper.”
    The defendant then proposed to prove “that the corporation plaintiff never exercised any of the functions of an insurance company; that no capital stock to create such a company was ever subscribed or paid in ; that the act of Assembly changing the name of this company to the Mountain City Banking Company was not passed after six months’ notice as required by the Constitution to obtain banking privileges; that the indorsement of ■ Joseph C. Bright to the note in suit was obtained under the representation that the note was to be discounted in a bank ; that the corporation plaintiff fraudulently represented itself to the public, including Greorge J. Richardson, maker of the note in suit, as a banking institution ; that neither the note in suit, nor any of its predecessors representing the same line of discount, was received by the corporation plaintiff other than as a bank possessing banking privileges ; and that it was discounted by them at a usurious rate of interest under the pretense by said corporation plaintiff that it possessed discounting privileges; that this corporation held itself out to the public only as a bank, doing banking business only ; that the note in suit and all of its predecessors representing the same original note were received by this corporation only as a banking institution, and not otherwise; that the capital stock and other moneys of the corporation were used exclusively in the discount of promissory notes and other commercial paper ; and that this note and its predecessors were received in the same manner.”
    The plaintiff objected.
    The Court : “Under the authorities, we are constrained to the conclusion that the defendant in this case cannot raise the question which is attempted in this offer, and we will overrule it.” Exception. (Third assignment of error.)
    December 9, 1880, verdict for the plaintiff for $4,508 60.
    The defendant made a motion for a new trial, and in arrest of judgment, which the Court, Pershing, P. J., overruled, filing the following opinion :
    ■ “Upon the trial of this case the defendant offered to prove the payment by Greorge J. Richardson, the maker of the note in suit, on which defendant was indorser, of usurious interest on other notes which had no connection whatever with the note in suit. It was made a part of this offer ‘ that the principal debts of all the notes upon which usurious interest was charged by the bank, and which is set up here as a discharge of the liabilities of the defendant, have been paid.’
    The judge who tried the cause admitted the offer, but limited it to transactions which took place within six months of the filing of the plea. This ruling is the first ground of complaint discussed in the elaborate printed argument of the defendant.
    The statute regulating interest declares that ‘in all cases where any borrower or debtor shall heretofore or hereafter have voluntarily paid the whole debt or sum loaned, together with interest exceeding the lawful rate, no action to recover back any such excess shall be sustained in any Court of this Commonwealth, unless the same shall have been commenced within six months from and after the time of such payment.’ This is a statute of limitation which bound Richardson in his dealings with the bank. His right of action accrued the very moment the usury was paid. At the end of six months it was effectually barred.
    Thereafter he could neither sue for it nor set it up by way of defense as a set-off or cross-demand. When, therefore, the Court gave Bright the same legal status in reference to these other transactions with the bank that Richardson might have claimed, we gave him every advantage he could legally demand.
    The Court to sustain its ruling relied upon Grilmore v. Reed, 26 Smith, 462, and Stephens ». Monongahela National Bank, 7Norris, 157. In Reed®. Marshall, 9 Norris, 345, Justice Sterrett said: £ In actions at law, the bar of the statute is equally applicable to the defendant’s cross-demands as to the plaintiff’s claim, and there is no good reason why it should not be so. Set-off is in the nature of cross-action, optional with the defendant, andthestatute runs against it until pleaded; and so completely is it in the control of the defendant that even when pleaded it may be withdrawn: Grilmore ®. Smith, 26 Smith, 462.’
    Maher’s Appeal, 10 Norris, 516, is a case in point. There a single judgment was given to secure the payment of two separate notes made to the same party. In the renewal of these notes usurious interest was charged. One of them was paid about six months before the real estate of the debtor was sold'at sheriff’s sale. On the distribution it was claimed that the holder of these notes should have deducted the excess of interest over six per cent, he had received on the note that had been paid. In deciding that this could not be done, the Supreme Court said: £ It appeared, however, that the first note was paid more than six months before the sheriff’s sale, from which the fund for distribution was realized, and hence the defendant was not in a position either to sue for or set off the excess of interest paid on that note..... The debt, evidenced by the note which was paid, was extinguished, and the time had gone by for the defendant to either sue for the excess of interest paid on it, or to set-off the same against the outstanding note.’

      We see no error in the ruling of the Court on this branch of the case.
    The defendant, as a further defense, set up ‘ a statutory pi’ohibition upon the plaintiff to acquire the note in suit, and, consequently,, an inability to enforce it.’ This raised a question which, in the mind of the judge who tried the case, was not free from doubt. The plaintiff was originally chartered as an insurance company. A supplement passed April 4, 1872, (P. L. 963,) changed its name to the Mountain City Banking Company, repealed all its insurance privileges, reserving to it the right to receive deposits and to invest the same agreeably to the original act of the corporation. This supplement also made the said company and the capital stock thereof thereafter subject to such taxation as was imposed upon banks. The original act made it lawful for said company to invest its capital, premiums and profits on real or personal security in bonds, notes, mortgages, ground-rents, judgments, loans, stocks and in other good securities, and to sell, transfer, and change the same, and re-invest the funds of said company when the directors shall deem it expedient, etc. Without stopping to discuss the bearing it may have on the question before us, we mention, as a fact, that this supplement of 1872 was passed fifteen years after the supplement of May 1, 1857, (P. L. 380,) to the act regulating insurance companies, which prohibited such companies from dealing in promissory notes, bills of exchange or other negotiable paper. The defendant on this point has called our attention to numerous cases decided in this and other States. It would be a useless expenditure of labor to undertake to reconcile them by any established rule. Some of the most important of these were before the Supreme Court in the argument in Stephens v. Nat. Bank, supra, and again in Youngsfleisch’s Ap., Schl. Leg. Record, 76, of the first series under the date of April 10, 1879.
    That the plaintiff is a corporation, and that the defendant dealt with it as a coi’poration, are undisputed facts. Asa corporation it received moneys on deposit, and on the credit of the defendant, as an indorser for Richardson, the note to which they are parties was taken by the bank. One who has borrowed money from a bank cannot, after he has thus received the benefit of the contract, repudiate the obligation which it imposes on himself, upon the ground that the bank making the loan exceeded its corporate powers, or acted otherwise improperly or illegally, neither on the ground of any original informality or irregularity in the formation of the company under the law of its corporate existence : Morse on Banking, 15 ; Parrish v. Wheeler, 2 N. Y. B., 494. Neither party can avoid the contract though ultra vires, after enjoying its benefits. Neither can a borrower say ‘I will not return you this money, because you had no power in your charter to lend it.’ Field on Corp., Sec. 265, 267. Steam Nav. Co. v. Weed, 17 Barb, 278. Bank v. Bank, 11 Barb, 213.
    In Spahr v. Farmers’ Bank, 9 W- N. C., 433, every question now before us, as will be seen by reference to the paper books, was raised and argued at length. The suit there was against an accommodation indorser, and the facts were much like those in the case in hand. That case decides that where there is a de facto corporation, and the State does not interfere, its corporate existence and its ability to contract cannot be questioned in a suit brought upon an evidence of a debt given to it by one who has dealt with it in its corporate character. As against him, the charter and a use of rights claimed to have been conferred by it to the defendant are sufficient. Although a charter may be declared null and void by the proper authority, yet the violation thereof cannot be determined in a collateral suit; citing Commissioners v. Bolles, 4 Otto, 104 ; Irvine v. Lumberman’s Bank, 2 W. & S., 190.
    The charter of the Mountain City Banking Company has already undergone the scrutiny of the Supreme Court in Youngsfieisch’s Appeal, supra. In a per curiam opinion the Court said in affirming the ruling of this Court, ‘We think the charter of the company authorized them to purchase notes as an investment, and conceding this was a discounting privilege, the presumption must be that the forms prescribed by the Constitution to be pursued before the creation of such a corporation by the Legislature have been pursued. Whether in a collateral proceeding like this such a presumption is not conclusive it is unnecessary in this case to determine.’ Whatever may have been decided by the courts in other States, we think the decisions of our own Supreme Court settle the controverted questions raised in this case against the position of the defendant.”
    Judgment was thereupon entered for the plaintiff.
    The defendant then took this writ, assigning for error the action of the Court in overruling his various offers of evidence, as above.

      C. W. Wells and Hughes & Farguhar for plaintiff in error.
    All usury as well since the interest act of 1858, as before eo instante it is paid, is money held to the use of the payor by the payee for which an action will lie. Because such action lies by the payor against the payee for this usury, and because the payor at the same time owes a debt of at least equal amount (i. e. the principal debt) „ the law credits the one upon the other, reducing the real debty?ro tanto. In this way each successive payment of usury so reduces the principal debt that when the debtor comes to pay his debt, if he pays the nominal principal debt in full he overpays to his creditor such an amount in excess of his real debt as equals the whole of the usury theretofore paid. This overplus, whether we call it excess of interest or excess of principal, is also the money of the payor, which he may sue for and recover from the payee, or if the payor owes at the same time to the payee another debt, the law will, by precisely the same process and for the same reason as before credit that excess to the payment pro tanto of that other debt. Therefore the limitation (six months) does not apply in a case such- as this, where the other debt is due at the same time as the usury becomes suable, the parties being in precisely the .same situation where there are two debts or where there is but one: Thomas v. Shoemaker, 6 W. and S., 183; Duquesne Bank’s Appeal, 24 Smith, 426; Campbell v. Sloan, 12 Smith, 481; Lucas v. Government National Bank, 28 Smith, 232.
    The Mountain City Banking Company is subject to the general insurance act of 1856 and 1857, and was expressly prohibited from discounting. There is a wide distinction between things merely ultra vires the corporation and things which the corporation is expressly prohibited from doing. The first may be frequently inforced, but the latter never: Whitney Arms Co. v. Barlow, 63 N. Y., 62; Shrewsbury?;. R. R. Co., 1 Law Report, Eq., 593 ; Oil Creek R. R. Co v. Penn’a Trans. Co., S3 Penn., 160; Farnham v. Canal Co., 61 Penn’a State, 265.
    The act of 1801 pi'ovides that no foreign bank shall be permitted to establish in this State any banking house or office of discount, under penalty. The Supreme Court held no action could be maintained on the note : Young ?;. Robertson, 6 Phila., 184; Burkholder v. Beetam, 65 Penn., 500; Morris Run Coal Co. v. Barclay Coal Co., 18 P. P. Smith, 173 ; Yundfc v. Robert, 5 S. & R., 139 ; Holt v. Green, 23 P. P. Smith, 198.
    The receipt of the money for usurious interest ipso facto operates as a payment of any debt due the creditor by the debtor when accounts are mutual and concur, but the statute does not bar either until both are barred.
    We claim here the right to set up the possession by plaintiff, of the money of the principal, during the existence of the suretyship, and this whether the plaintiff still retains that money, whether he has paid it over to the debtor, or whether "the debtor’s right of action against the plaintiff for that money is barred by the statute of limitations, or not.
    It is clear doctrine that if a creditor have the means or the power of satisfaction in his hands out of-the property of the principal debtor and do not avail himself of it, the surety is discharged pro tanto. If authority be needed, we cite Commonwealth v. Vanderslice, 8 S. & R., 457; S. C., 16 S. & R., 252 ; Ramsey v. Bank, 2 P. & W., 203: Kuhns v. Bank, 2 Watts, 136 ; Klopp v. Lebanon Bank, 46 Penn., 88 ; Cathcart’s Appeal, 1 Harris, 420; Bank of Gettysburg v. Thompson, 3 Grant, 114; Lichtenthaler v. Thompson, 13 S. & R., 157.
    The irresistible conclusion upon this branch of the case is that Bright, as a surety, had a right to set up as an equitable defense, the possession by the bank of the money of the principal debtor, paid to the bank for usurious interest during the existence of the debt in suit, although upon different transactions and although the principal debtor might be barred by the statute from setting up the usury as a set-off.

      I. W. Price, Q. Little and James Ryan for ' the defendant in error.
    The usury act of 1858 contemplates contracts for a greater rate than six per cent., and such contracts are permitted and until avoided by the borrower or debtor, by the exercise of his option to avoid it, the contract is complete and inforceable. This if true as between the parties and until the debtor exercises his option to avoid the contract, the excess of interest is as much the property of the lender as the six per cent. That act is limited to parties: Miners’ Trust Company v. Roseberry, 31 Smith, 312; Bly. v. Bank of Titusville, 29 Smith, 453; Overholt v. Bank of Mt. Pleasant, 1 Norris, 490 ; Maher’s Appeal, 10 Norris, 516 ; Gilmore v. Reed, 26 Smith, 462.
    The whole theory of plaintiff in error is predicated on the proposition that mutual debts, per se, extinguish each other by operation of law.
    In Post v. Carmalt, 2 W. & S., 70, the rule is laid down that mutual debts do not, per se, extinguish each other ; to effect such extinguishment there must be some act of the parties, whilst debtor and creditor, by which they determine that one shall go in satisfaction of the other ; which act must be of binding efficacy so as to accompany the claims into whosesoever hands they may pass; ’ Carmalt v. Post, 8 Watts, 406 ; Hinckley v. Walters, 9 Watts, 179.
    In Himes v. Barnitz, 8 Watts, 39, this court held, The Mountain City Banking. Company is not prevented from carrying on a banking business because section 4 of the act in accordance with which it was organized provides expressly for such a business, and avoids so far the provisions of the general insurance law: Spahr v. Bank. 9 W. N. C., 433. Cochran v. Arnold, 8 P. F. Smith, 399.
    The plaintiff in error dealt with the corporation as such and is estopped from denying its corporate existence: Cochran v. Arnold, 8 Smith, 399; Cong. So. C. v. Perry, 6 N. H. 164; Dutchess Mfg. Co. v. Davis, 14 Johns, 238; Angelí v. Ames on Corp., § 94; Bigelow on Estoppee, 425, and note 4.
    Mat 7, 1883.
   — Per Curiam :

The evidence offered was rightly rejected. The claim was neither evidence of payment on the note in suit nor of set-off against it. It arose out of a separate transaction, and the claim was barred by the statute of limitations. The taking of the note by the bank was not ultra vires. The express authority given to invest its capital in notes and to purchase and hold securities in payment of the debts due it permitted this note to be taken. We discover no error in the record.

Judgment affirmed.