sign their names to the book; that he made a personal request to the defendant to sign his name, and that the latter told the witness he could not write, and that the witness should sign his name for him, and it would be all right, that at this time the regular business of the meeting was going on; that at the time when he requested the defendant to sign the book was open at the page where the latter's name was subscribed, and that he had no recollection of explaining to the stockholders or the defendant that the agreement prescribed by the charter preceeded their or his signatures. It appears, also, in the testimony of J. J. Scanlon, the subscribing witness to each of the following papers, that at the time of the making of this loan the defendant made his mark to the following assignment in the transfer book:

"WILKES-BARRE, PA., June 30, 1871. "I hereby transfer to the Anthracite Building and Loan Association five shares of certificate No. 101 in the said association as collateral security for the repayment of money loaned by them to me, and also of all interest, fines, dues on stock, or other charges which may accrue according to the charter.

"J. J. SCANLON, Treas." And that at the same time he made his mark to the following receipt in another part of the book:

WILKES-BARRE, PA., June 30, 1871. "Received of the Anthracite Building and Loan Association one thousand dollars as a loan from the permanent fund, for the repayment of which, with all interest, fines, dues on stock, and other charges, I have given as collateral security five shares of certificate No. 101 in the said association and a judgment note for one thousand dollars.

his

It is not alleged that either of these documents were read or explained to the defendant, and the execution of them is denied, certainly inferentially, by the defendant, who swears that he signed his name but once for the occasion, and that was when he executed the note. It is argued that the payment of interest and fines for a series of years without objection is inconsistent with defendant's present allegation. We cannot so regard it. The mere payment of usury without objection furnishes no ground of estoppel, nor evidence that the defendant felt himself legally bound to pay it. We therefore dismiss this fact from our consideration. Neither do we regard the signing of the assignment and receipt as equivalent to the signing of the agreement prescribed by the constitution. If they have any weight, it is simply as corroboration. The questions presented for adjudication are, first, did the defendant authorize Mr. O'Neill to sign his name, as alleged by the plaintiff; and, second, if he did, are there any circumstances connected with the transaction which would warrant an inference that his signature was obtained by fraud, or fraudulent concealment of the contents of the instrument he was asked to sign. As to the first question suggested, it will be observed from the brief synopsis of the evidence which we have given that there is a direct and apparently irreconcilable conflict between the defendant and Mr. O'Neill.

A mere conflict, especially since the passage of the act of 1869, permitting parties to testify, will not warrant the granting of an issue; Philbin v. Davenger, 1 Luz. Leg. Reg. 507.

As a general rule, where a party has confessed a judgment to another, which has been entered of record, his own deposition alleging fraud and the like, but contradicted flatly by the deposition of the plaintiff, will not prevail to open the judgment; Kocker v. Rice, 2 Luzurne Legal Reg. 24.

The rules declared in the two cases cited have been followed in many other cases in

this court, and we do not propose to depart from them. They must not, however, be misapplied. As we understand the cases, they apply only where the conflict is over the equity which the defendant sets up as his ground for relief, and which he must establish, or he left where he had placed himself under the law. To extend the rule further, so as to hold that, in every instance, where there is a conflict between the plaintiff and the defendant, even though it be over a matter which is a part of the plaintiff's case in rebuttal of the defendant's equity or right to relief, the scales must be tipped to the plaintiff's side would be a practical nullification of the act of 1869, as is abundantly shown in the late cases of Ballentine v. White, 27 Sm. 20; Prowattain v. Tidall, 30 Sm. 295; Flattery's Appeal, 7 Nor. 27, and Shaffer v. Clark, 9 Nor. 94.

Even the rule in equity, which has never been adopted in common law practice, that where the answer is responsive to the bill, and the evidence of only one person affirms what has been so negatived, then the court will neither make a decree, nor send it to a trial at law. 2 Dan. Ch. 283*, would not be authority for such a general rule; for, in equity, where the answer of the defennant is not responsive to the bill, but sets up affirmative allegations in opposition to, or in avoidance of, the plaintiff's demand, and is replied to, the answer is of no avail in respect to such allegations, and the defendant is as much bound to establish the allegations so made by independent testimony as the plaintiff is to sustain his bill; Dan. Ch. 984* note.

Assuming, then, that the defendant in a motion to open a judgment is the actor, and that the burden of proof, in the first instance, is on him, how does the case stand? He alleges that there is included in this judgment five hundred and five dollars which he never had, and that he has paid interest on this sum and interest or fines on this interest. His testimony would make a prima facie case of usury.

The plaintiff association answers, not by denying these payments and the deduction of this premium, but by the affirmative allegation that they were authorized by the charter and properly chargeable, because the defendant signed the agreement prescribed by article v. of the constitution.— When the issue is thus presented, it is plain to be seen that the burden of proof that he did not sign the agreement is not on the defendant, but is rather on the plaintiff of showing that he did, and in such an issue we therefore would not be justified in laying down a general rule that the oath of the plaintiff per se shall have greater weight than that of the defendant. In the disposition of the first question of fact, then, we are unassisted, by the rules laid down in Philbin v. Davenger and Rocher v. Rice, supra, and it therefore becomes almost purely a question of credibility of the witnesses, and this must go to a jury. We suggested that the assignment of stock and receipt might furnish some corroboration for the plaintiff. This would be so, provided their execution were satisfactorily established, but even as to that fact there is a conflict between Mr. Scanlon, the subscribing witness, and the defendant, and before we could treat it as corroborative we would have again to decide a fine question of credibility.— It was urged quite strenuously for the defendant that even conceding that he signed the agreement, it was not shown that it was read or explained to him, and this raises the second question heretofore suggested. We need not enlarge upon this question, but we deem it proper to say that if the execution of the agreement were established) and as to this question of fact we express no opinion, as it must go to a jury,) the simple fact that it was not read or explained to him would not, under the circumstances of this case, be sufficient to send an issue to a jury. It does not appear affirmatively that the defendant cannot read, nor does it appear that any misrepresentations were made to

him of its contents, nor does it appear that he asked to have it read; therefore, assuming that he signed the agreement under the circumstances detailed by the plaintiff's witness, the case would come within the rule declared by Gibson, C. J., in Greenfield's Estate, 2 H. 496: "If a party who can read will not read a deed put before him for execution, or if being unable

to read will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either at law or in equity." This rule was followed in its fullest extent in Pennsylvania R. R. Co. v. Shay, I Nor. 198.

This rule is made absolute, and issue awarded, note to stand for a declaration, and the execution theory to be taken as admitted, the plea to be nil debit, payment, etc.

The statute of 1725 in reference to issuing writs of capias and the exemption of freeholds from arrest is not repealed by the Act of 1836, but is expressly declared operative by the Act of April 14, 1838.

May 1st, 1883, rule to show cause why the order made April 28th, 1883, on motion of counsel for the defendants, should not be rescinded and the writ reinstated, and the thirty shillings refunded to said plaintiff by the defendant.

August 18, 1883. PATTERSON, A.L.J.

-The rule above recited must be discharged.

That the old statute of 1725, in reference to the issuing any writ of arrest against a defendant, exempt from arrest, is still in force, can not be doubted.

The Court was well satisfied of that on April 28th, 1883, when the defendant in the above action on that day, first showing that the writ of capias has been issued on the preceding day-the 27th-made his motion on affidavit filed, alleging his freehold (which was not disputed,) that the said writ be abated, &c.

Accordingly the Court holding, under that statute, that "a freeholder who is priviliged from arrest on a capias will be entitled under such circumstances to have the writ quashed," the order abating the writ was made.

The said old statute of 1725 was operative, ever since the act of 1838, seems to have been the uniform judgment of the Courts from that period up to the present time.

In the absence of any decision of the Supreme Court, we must be governed by

our own convictions and the decisions of the lower Courts; the latter have been uniformily in the same direction.

We refer to some: See

Blackiston v. Potts, 2 Miles 388, decided in 1840.

2 W. N. C. 186, Dobson v. Fitzpatrick, and Jellyman v. Same (THAYER, P. J.): "a freeholder does not waive his exemption from arrest on a capias ad respondendum by moving to reduce the bail on which he is held." Rule absolute to abate writs of capias with costs.

3 W. N. C. 302, Buckman v. Jones:"Defendant proved himself a freeholder. Court abate the writ with an allowance of thirty shillings cost."

10 W. N. C. 553, Ingersol v. Campbell: Defendant entered his plea of freehold on capias had been served September 20th,

1881, returnable October 1st, 1881, October 8th, 1881. "Rule to quash capias made absolute," and the Court added that "in the absence of any decision of the Supreme Court we consider it to be a hardship to limit the defendant in entering his claim of freeholder.

The only exceptions seems to be when an unprivileged person unite, in a joint trespass, and both are sued in one action, the former loses his privilege: W. N. C. of June 21st, 1883, Beale v. Hoag et al. But that is not the case before us.

Rule discharged.

prevent the plaintiff from issuing an execution at pleasure or estop the defendant from paying the debt, or making a tender to plaintiff of the debt, interests and costs due, which, if a legal tender, would have the effect in law which would follow a legal tender in any case.

The Act of 1705, § 2, Purd. 488, pl. 2, declares that: "in all cases, where a tender shall be made, and full payment offered, by discount or otherwise, in such specie as the party by contract ought to do, and the party to whom such tender shall be made refuse the same, and yet afterwards will sue for the debt or goods so tendered, the plaintiff shall not recover any costs in such suit."

And the Act of May 12, 1867, Purd. 1395, pl. 1, declares that: "In all actions for the recovery of money, founded on contract hereafter brought, in any of the Courts of this Commonwealth, or before any of the justices of the peace or aldermen thereof, the defendant or defendants therein shall have the right, at any time before trial in Court, to make the plaintiff or plaintiffs a tender of lawful money, equal to the amount he or they shall admit to be due, with all lawful costs incurred in said action up to the date of making such tender; and, if the party to whom such tender shall be made, refuses to accept the same, then in the event of the plaintiffs failing to recover more than the principal sum, so as aforesaid tendered, with legal interest thereon, he or they shall pay all costs legally incurred in the said action

after the time of the tender aforesaid, &c.

It will be observed that neither of these

Acts define a tender or describe how it shall be made to be legal.

WHARTON Says: A tender is where a debtor offers to his creditor legal money sufficient to pay a definite debt, which has matured in full, and to be effective, it must cover not only the debt but all interest, and if made after suit has been commenced, it must also include all costs that have been incurred in maintaining the suit Whar. Con. $970, &c.

A mere offer to pay money is not, in legal strictness, a tender: 2 Dall. 190.

In Sheredine v. Gaul, 3 Barr 383, it is said: In strictness of law, where a tender is made, the money must be counted down in gold or silver, (this, however, was prior to the issue of our legal tender papermoney, which would now be sufficient) and offered to the party. Where, however, one approaches another, and offers to pay him a certain sum of money which he owes him, and has the money with him in specie (or legal tender notes) ready to pay, and the other party dispenses with the counting down the money, by refusing to receive it before it is counted, the tender would be good; but if the creditor does not refuse to receive the money, then a regular legal tender is by counting down the money and offering it to the creditor.

No tender is a substantial one but a legal tender; 10 S. & R. 14.

A tender must be wholly unconditional. The true rule is, or at least should be, that no condition possibly harmful to the creditor must be annexed, such as a re

ceipt in full for all demands, or for the surrender of an obligation showing that more it due than is tendered, &c.: 2 Par. Notes and Bills 625.

The full amount due must also be tend

ered, as the most trifling deficiency destroys the legal effect of the offer to pay; and, where a tender is made, the defendand is required to keep up said tender at every trial of the action, or pay the money into Court on leave obtained.

After fully examining and carefully considering the testimony presented, we are of opinion that there was no legal tender made in this case on April 4, 1882. We think, however, that the testimony shows and would warrant a jury in finding as a fact, that a legal tender was made August 17, 1882; and, in our opinion, a by the defendant to the plaintiffs on legal tender was then made; but it cannot avail the defendant in this proceeding, because it has not been kept up by him.By his tender and evidence, defendant admits, that the amount due, and tendered to plaintiff was about $2,047, and when the execution was issued and demand thus made, defendant did not renew his tender of $2,047, nor pay or offer to pay to the sheriff the amount he tendered to plaintiff, but he paid to the sheriff $2,000 only, some $47 less than the sum tendered and admitted to be due by the tender at the time it was made, on August 19, 1882.This, of course, renders the tender of no