be the amount of damages laid in the narr, and execution issues accordingly; but it is proper that the plaintiff should indorse the actual amount of the debt on the execution; and, if injustice has thereby been done the defendant, the court can grant immediate relief on motion. A like ruling will be found in the case of Cochlin v. Com, 11 Wkly. Notes Gas. 460. In the case in hand, judgment was confessed on the bond, under the power of attorney, in the full amount thereof, and the damages laid in the narr in the sum of money imposed, by way of fine, on the defendant by the quarter sessions. All this was formal and regular, and against it no exception can be entertained.

So it is a mistake to suppose that the defendant and his sureties were released from the obligation of their bond by the imprisonment of the defendant in default of the payment of his fine. That was part of the penalty which he suffered in consequence of his non-compliance with the sentence of the court; and, while it released him from the grasp of the quarter sessions, it in no way affected the obligation of his bond.

The judgment is affirmed.

MECHANIC’s LIEN — ENFORCEMENT — “ATTORNEY” —— AFFIDAVIT OF DEFENSE — STRANGER To RECORD.

When a defendant puts in a stranger’s affidavit, it must show sufficient reason why it was not made by the defendant himself; that a real disability existed, which prevented him from making it, and the circumstances giving rise to the disability.

Error to common pleas, Lancaster county.

Scire facias sur mechanic’s lien.

The affidavit of defense filed was affirmed and subscribed to by John F. Griel, and subscribed, “JACOB GRIEL, Sr. Per JOHN F. GRIEL, Attorney.” The court (D. W. PATTERSON, J.) made absolute a rule for judgment for want of a sufficient affidavit of defense, and thereupon this writ was taken.

Mr. Reinoehl, for plaintiff in error, cited Sleeper v. Doug/terty, 2 Whart. 177 .

W. H. Rowland, for defendant in error, cited Bancroft v. Ster, 1 Wkly. Notes Gas. 132; Gross v. Painter, Id. 154; Stollaker v. Lardner, Id. 169; City of Philadelphia, etc., v. Devine, Id. 358; Russell v. Foran, Id. 470.

PAXSON, J. The affidavit of defense in this case is clearly insufficient. It is not only evasive, but it was made by a stranger to the record. It is true, he styles himself “Attorney for Jacob Griel,” but whether he was attorney at law or attorney in fact does not appear. No reason is given why the defendant did not make the affidavit himself, nor does the afiidavit show that it was made for and on behalf of the defendant, nor even with his knowledge. Nor are these defects cured by the supplemental affidavit; nor that the affiant refers to a power of attorney from the defendant as giving him full power to sign the affidavit of defense in this case, but an inspection of that instrument discloses no such authority. It refers to other matters, in no way connected with this suit. It has never been held that no one but the defendant can make the affidavit of defense. Cases may arise where it would be physically impossible for the defendant to make such an affidavit. Under such and similar circumstances we have no doubt that an affidavit of defense may be made on behalf of the defendant by an attorney at law or other person duly authorized, but the reason why it is not made by the defendant should be set forth in the affidavit. The court can then judge of the sufficiency of such reason. It would never do to allow a stranger to the record to intermeddle in this manner. The correct rule would seem to 'be that, when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed, which prevented him from making it, and the circumstances giving rise to the disability.

This rule is generally observed in practice throughout the state, so far as I have had an opportunity of ascertaining. It is certainly the rule in force in Philadelphia, where the practice under the affidavit of defense law is older than in most of the other counties of the state. See Bancroft v. Sterr, 1 Wkly. Notes Gas. 132; Gross v. Painter, Id. 154; Stollalcer v. Lardner, Id. 169; City of Philadelphia, etc., v'. Devine, Id. 358; Russella v. Foran, Id. 470; Philadelphia v. Gross, 2 Wkly. Notes Gas. 429; Cowperthivait v. Roney, 10 \Vkly. Notes Gas. 482.

The allegation in the supplemental affidavit that the affiant “transacted all the business inthe case, and has full knowledge of the whole work alleged to have been done,” does not meet the difficulty. It fur~ nishes no reason why the defendant did not make the affidavit. For that purpose he is entitled to avail himself of the knowledge of others, and may aver his facts upon information and belief.

Nor is the supplemental affidavit specific. The original is wholly evasive, as before observed. Neither sets up more than a defense to a portion of the claim, and there is no admission anywhere of how much the defendant admits to be due. Such language as that “the whole bill is in excess of the price agreed upon, and is extortionate, and labor and material charged for which was not furnished,” is too vague. How much labor and material were charged for, and not furnished? Surely, if the defendant knows the fact to be so, he can tell the amount. And, as to the few items which are more specific, there is no distinct aver'ment made of any agreement with the defendant in regard to their price. It does not appear whether the contract referred to was oral or written, nor with whom made. Judgment affirmed.

BUCK v. HENDERSON.‘
(Supreme Court of Pennsylvania. October 4, 1886.)

TRUSTS—DECLARATIONs—WIFE’s ESTATE—INTEREST. Declarations that interest upon money left by declarant’s deceased wife should be paid to his daughter at her majority are sufficient to repel the presumption of personal acquisition, and stamp the relation of trustee upon him.

Error to common pleas, \Varren county.

Assumpsit by Charles E. Henderson and Anna M., nee James, his wife, against Florence M. Buck, executrix of E. E. James, deceased, to recover interest upon the proceeds of a farm of the wife of E. E. James, and mother of Anna M. Henderson.

The plaintiff’s evidence showed that E. E. James, during Mrs. Henderson’s minority, told her guardian that he would have nothing to do with-the interest on his wife’s estate; that he desired it to accumulate, and go to his daughter when she attained her majority. The defense was that Mr. James never executed the gift to his daughter, which he at one time contemplated. Verdict for plaintiff, whereupon this writ was taken.

D. L. Ball and C. (J. Thompson, for plaintiff in error. 7

The gift was not executed. Withers v. Weaver. 10 Pa. St. 391; Linsenbt'gler v. Gourley, 56 Pa. St. 166; Pringle v. Pringle, 59 Pa. St. 281; Fross (fiLoomis’ Appeal, 105 Pa. St. 267; Bond v. Bunting, 78 Pa. St. 210; Scott v. Lauman, 104 Pa. St. 593; Williams’ Appeal, 15 Wkly. Notes Gas. 89; Deg/sher v. Triebel, 64 Pa. St. 386.

A. E. Sisson and Johnson, Lindsey do Parmlee, for defendant in error.

The evidence was sufficient to go to the jury. Grangiac v. Arden, 10 Johns. 293; Doty v. Willson, 47 N. Y. 580; Trow v. Shannon, 78 N. Y. 446. Declarations are sufficient to repel presumption of personal acquisition, and establish relation of trustee. Moyer’s Appeal, 77 Pa. St. 482. '

PER CTTRIAM. We discover no error in this record. Declarations, accompanied with acts clearly proving the intent of the donor to execute the gift, were given in evidence. The dealings of the donor with the guardian of the ward were tantamount to dealing directly with the ward. Declarations when receiving the money, or afterwards, clearly evincing an intent to take it in trust at the time of its reduction into his possession, are sufficient to repel the presumption of personal acquisition, and stamp the relation of trustee upon him. Judgment affirmed.

HUMPHREY 2;. COUNTY NAT. BANK on CLEARFIELD.1
(Supreme Court of Pennsylvania. October 4, 1886.)

STATUTE OF LIMITATIONS—COLLATERAL FOR DISCOUNTING—BALANCE—DEMAND. Where the court below allowed the claim of payment of promissory notes discounted, by deposit of collateral security pledged for the payment of notes fendant a certificate for the balance due him upon the collateral, after the payment of his notes. The statute of limitations does not begin to run until after demand made.

Error to common pleas, Clearfield county. Case by the County National Bank against A. Humphrey for promissory notes discounted. The facts are set out in the opinion of the court.

Orvis do Snyder, for plaintiff in error.

By the defalcation act of 1705 no other plea than payment is necessary to let in a set-Off. The certificate in favor of the defendant was therefore technically right. Balsbaugh v. Frazier, 19 Pa. St. 98; Calvin v. McClure, 17 Serg. & R. 385. A bank is not in default until demand made and refused, and then statute of limitations begins to run, and not before. Union Bank v. Planters’ Bank, 9 Gill 8t J. 439; Girard Bank v. Penn Tp. Bank, 39 Pa. St. 98; McGough v. Jamison, 107 Pa. St. 336; Finkbone’s Appeal, 86 Pa. St. 368; Hughes v. First Nat. Bank of Waynesburg, 17 Wkly. Notes Gas. 178; S. C. 1 Atl. Rep. 417. '

McEnally do McGurdy and Murray do Gordon, for defendant in error, cited—

Wisecar'oer v. Kincaid, 83 Pa. St. 100; Gilmore v. Reed, 76 Pa. St. 462; Cocely v. Fox, 11 Pa. St. 171; Uhler v. Sanderson, 38 Pa. St. 128; Levering V. Rittenhouse, 4 Whart. 129; H inkley v. Walters, 8 Watts, 260; Light v. Stoeoer’s Ero’rs, 12 Serg. & R. 431; Thomas v. Mann, 28 Pa. St. 520; Scott v. Coal Co., 89 Pa. St. 231; Waterman v. Brown, 31 Pa. St. 161.

PAXSON, J. This was an action Of assumpsit brought to recover the amount of two promissory notes discounted by the County National Bank of Clearfield, plaintiff below, one of said notes amounting to 31,97 5; the other, to $169.04. The defense set up was that the notes in suit were renewals of notes discounted by the bank as early as 1866; that, prior to the discount Of the original note, the defendant left with the bank certain notes of one A. C. Finney, indorsed by Samuel Mitchell, to the amount of $4,000, the longest Of which notes had 30 months to run; that these notes were left with the bank by an arrangement made between the defendant below and James T. Leonard, president of the said bank, by which arrangement the bank was to hold these Finney notes as collateral security for discounts which the bank was to give the defendant. Shortly afterwards, the bank discounted notes of the defendant, and continued so to discount notes from time to time. The notes generally were discounted without an indorser. It was contended that the notes in suit were but renewals of this long series of discounts. It is to be observed, however, that each of the notes in suit has upon it as indorser the name of William A. Wallace, a gentleman of well-known pecuniary responsibility.

It is a singular circumstance that, notwithstanding the notes alleged to have been deposited as collateral were made and indorsed by responsible parties, no trace of them appears upon the books of the bank. There is no very clear proof as to their payment; nor is there any evidence that the defendant, who was evidently in a. position to needthe money, ever made any demand upon the bank for the proceeds, or even

any inquiry about them. There was evidence suflicient, however, of the deposit of the collaterals, to carry the case to the jury. Upon the trial the defendant claimed, not only that the notes in suit were paid by the collateral, but that he was entitled to a certificate for the balance due him upon the collateral after the payment of his notes. The court below allowed the claim so far as it was a defense to the notes, but held that the surplus was barred by the statute of limitations. The jury found a verdict in favor of the defendant, who sued out this writ, and has assigned for error the instructions of the court upon the statute of limitations.

We are of opinion that it was error to apply the statute. It is a settled rule of law that, where a deposit is made in a bank, the statute does not begin to run until after demand made. It is sufficient to refer to two of the later cases, viz., Finkbone’s Appeal, 86 Pa. St. 368, and McGough v. Jamison, 107 Pa. St. 336. It is true, the defendant was not technically a depositor of money to be drawn out on his check, but we are unable to see any substantial difference between such case and the one in hand. He was a customer or dealer with the bank, was having a line of discounts, and the notes in controversy were deposited as collateral to such discounts. What was the duty of the bank when the collateral notes were paid? It was to deposit or carry the proceeds to the credit of the defendant’s account. He would then occupy the position of any other depositor. The theory of the defense was that the collateral notes were paid. Indeed, it is only upon this theory that he would have any defense to the notes in suit, or claim to a certificate. If, then, the notes were paid, and the bank did its duty by carrying the proceeds to his credit, in what respect is his portion different from that of any other depositor? If, on the other hand, the bank committed a breach of duty by not applying the proceeds of the collateral notes to the defendant’s account or to his credit, what is the result? The bank cannot take advantage of its own wrong. It was the pledgee of the collateral notes. The latter were pledged for the payment of the notes discounted and to be discounted by the bank. If the collateral notes have been paid, the proceeds are and must be held for the same purposes as the notes themselves had been previously held. The change in the nature of the collateral, by their conversion into money, can make no essential difference. It is well settled that mutual demands do not, of themselves, extinguish each other. The notes discounted by the bank for Humphrey have not been paid in point of fact. The bank might have applied the proceeds of the collateral notes to their payment, but it did not. It might have called upon Humphrey to redeem the pledge, but it did not. Not having exercised any such right, it holds the collateral, whether it he notes or money, as pledgee for Humphrey’s notes discounted. Those notes are still unpaid. Can it be doubted that had Humphrey tendered the amount of his notes to the bank, instead of waiting to be sued, he could have demanded the return of his collateral? The statute of limitations would have been no answer to such a demand. “If the pawnee does not choose to exercise his acknowledged right to sell,