Peoples' Bank of Wilkesbarre v. Legrand. the option of the bank, as the same class of deposits made at any other time and before maturity, that is, according to the general usage and understanding prevailing in the commercial world. We fully recognize the rule that where a principal creditor has the means of satisfaction actually or potentially within his grasp, he must retain them for the benefit of the surety, but we regard the case of bank deposits as an exception to the rule. We are not prepared to say and do not hold, that when the bank has funds of the maker in hand at the time of bringing suit, the indorser may not avail himself of the maker's right of set-off in defense. In such a case the equities of the maker touch the holder directly, and are available to the indorser. Such was the decision of this court in the case of Sitgreaves v. Bank, 49 Penn. St. 362, and we know of no reason why that doctrine would not be as applicable to the case of a deposit as to any other form of obligation by the bank ⚫ to the maker. But in the present case the doctrine is inapplicable, because at the time of bringing this suit it does not appear that the plaintiff held any money of Lowenstein on deposit. In addition to this, it was part of the agreement for extension of the time of payment between Lowenstein and the bank, that he should continue to do business with the bank. If he could not draw out funds deposited he could not do banking business, and we think there is a clear implication from the agreement for extension, that Lowenstein was to be at liberty to draw against his future deposits, notwithstanding the dishonor of the note in suit. Such an understanding would operate against the right of the bank to appropriate such deposits to the payment of the note. In view of these considerations we think the learned court below was in error in not entering judgment in favor of the plaintiff for the amount of the note and interest on the point reserved, in accordance with the verdict of the jury. Judgment reversed, and now judgment is entered on the verdict in favor of the plaintiff and against the defendant for $2,977.45, with interest from the date of the verdict and costs of suit. VOL. XLIX-17 Judgment reversed. Enterprise Transit Company v. Sheedy. ENTERPRISE TRANSIT COMPANY V. SHEEDY. (103 Penn St. 492.) Deed-acknowledgment — curing defect. A notary public having made and delivered a defective certificate of acknowledgment of a deed cannot amend it in the absence of the grantor.* AJECTMENT. The opinion states the point. EJECTI Hamlin & Son and W. B. Chapman, for plaintiff in error. O. A. Hotchkiss and N. B. Smiley, for defendants in error. PER CURIAM. This attempt to impart life to a void instrument has the merit of novelty. When Mrs. Sheedy affixed her name to the written instrument and acknowledged it, the acknowledgment was confessedly so defective as not to bind her or pass her title to the land. It was then delivered, and eleven days thereafter recorded. More than five months after the acknowledgment was actually taken, and the certificate thereof signed by the notary public indorsed thereon, he wrote and signed a second certificate of acknowledgment. The parties to the instrument did not again come before him, but he certifies what occurred months before. To this last certificate he adds facts not contained in his former certificate, with a view and for the purpose of making valid the writing of a married woman, which was then invalid. Effect cannot be given to this latter action to the notary public. Judgment affirmed. * See Merritt v. Yates (71 Ill. 636), 22 Am. Rep. 128. Johnson v. Hulings. JOHNSON V. HULINGS. (103 Penn. St. 498.) Contract-public policy—unlicensed broker. An unlicensed real estate agent, subject to penalty for doing business without a license, cannot recover compensation under contract for such business. A SSUMPSIT. The opinion shows the facts. The defendant had judgment below. N. D. Smiley and M. F. Elliott, for plaintiff in error. W. B. Chapman and John B. Chapman, for defendant in error. GORDON, J. In this case, by a special verdict, the jury found that the plaintiff was, in the year 1878, the year of the transaction involved in this controversy, and also for some years before and after that period, engaged in the business of buying and selling real estate for others upon commission. That in that year he had no license or commission as a real estate broker, and that it was during this time that he negotiated a sale of real estate to H. L. Taylor and company for the defendant for which he was to receive $10,000. On looking over the evidence we find that this verdict was founded upon the testimony of the plaintiff himself. In answer to the question, "What is your business?" he answered, "I am buying and selling oil lands for other parties, and real estate." He also said he had been engaged in that business about eight years. He further, in answer to a question put on the part of the defense, admitted that he had not taken out license for the year 1878. There is therefore no doubt but that the plaintiff was engaged in the purchase and sale of real estate as a business, and so came within the definition of "real estate broker," as found in the case of Chadwick v. Collins, 26 Penn. St. 138. Such being the case, the plaintiff was, by virtue of the eighteenth section of the act of the 10th of April, 1849, brought within the provisions of the act of May 27, 1841, and was subject to the penalty therein prescribed in case of a violation of those provisions. The result follows that Johnson, in the transaction in hand, stands in the position of a real estate broker who seeks to enforce a contract * See McConnell v. Kitchens (20 S. C. 430), 47 Am. Rep. 845. Johnson v. Hulings. which, under the statute, he had no right to make, and by the making of which he subjected himself to the penalty imposed by that statute. But a contract such as this, opposed as it is alike to good morals and public policy, cannot be enforced. That has been ruled times without number. The case is almost identical with that of Holt v. Green, 73 Penn. St. 198; s. c., 13 Am. Rep. 737. That like this, was an action by a broker to recover his commissions, and there, as here, it appeared on cross-examination that he had no license. The only difference between the two cases is, that in the one cited the demand was for commissions quantum meruit, and in the case in hand it is on a special contract. This however may be regarded as a distinction without a difference, for we suppose no one will contend that the statute may be avoided by the introduction of a special contract for commissions. The statute deals not with the question of compensation, for that is left to the agreement of the parties interested, but with the business itself. "No individual or copartnership, other than those duly commissioned under the provisions of this act, shall use or exercise the business or occupation of a stock broker, or an exchange broker or a bill broker, under a penalty of $500 for each and every offense, to be recovered as debts are by law recoverable, one-half for the use of the Commonwealth and the other half for the use of the guardians of the poor, in the city or county where such offense shall have been committed. If then the business itself be unlawful, the commissions or gains arising from it without regard to the form of the contract for their payment are also unlawful. But the plaintiff's main contention is, that as the transaction took the shape of a special contract, and as under his narr. and proof, he might have recovered without a revelation of the illegal character of that contract, therefore, and notwithstanding its true nature was revealed by cross-examination, he was entitled to recover. It might be enough to answer that in this he is met in the teeth by the case above cited. It was not necessary to the plaintiff's recovery in that case, that he should have proved that he had license, for that might have been presumed, but the fact that he had not license appeared on cross-examination, hence he lost his case. Nor does Shepler v. Scott, 85 Penn. St. 329, sustain the point made by the plaintiff, for there not only was the action on a special contract, but it nowhere appeared that the plaintiff was a broker, or that he Johnson v. Hulings. had not been licensed. Again the rule laid down in Swan v. Scott, 11 S. & R. 155, is cited as conclusive of this case. It was there said, as has been said in many succeeding cases, that the test whether a demand connected with an illegal transaction can be enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. About this rule there is no special obscurity, and if there were any such obscurity, it may be readily made clear by an examination of the case itself. The plaintiff, Scott, obtained an award of arbitrators against Swan, founded on an illegal lottery transaction, from which Swan appealed. He afterward withdrew the appeal, and on the same day executed to Scott his bond for the amount of the award, and thereupon Scott entered satisfaction of record. Then, in a suit brought upon the bond it was held, that the defendant could not go beyond that obligation to show that the foundation of the preceding award was an illegal transaction. The argument of Mr. Justice DUNCAN on this point is unanswerable. "If," says the learned justice, "Swan had acquiesced in this award for twenty days, the judgment would have been final; but the judgment remained notwithstanding the appeal, and when it was withdrawn Scott might have issued his execution; the judgment became final, and I may add, irreversible; it fixed both parties; there was an end of the controversy." The consideration of the bond was the award, which had, by the agreement of the parties, passed into a judgment, and that judgment could not be attacked collaterally, hence there was no way by which the original transaction could be reached. But how does all this fit the case in hand? Johnson has no intervening judgment behind which to shelter his illegal claim; he has not so much as a bond or note; he stands upon the illegal contract alone, and asks us to say that because in his narr. and case in chief he has had the ingenuity to avoid an exposition of its illegality, that illegality cannot be shown by way of defense. We have but to say, that if such is his reading of the rule of Swan v. Scott, he is badly mistaken in the legal principle thereby announced. Moreover if his interpretation of the rule be correct, then has this court departed from it in many recent cases; as in Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 174; s. c., 8 Am. Rep. 159; Kilborn v. Freld, 78 Penn. St. 194; Thorne v. Insurance Co., 80 id. 15; Holt v. Green, supra; Ham And if these cases were wanting of support they might readily be duplicated from the reports of the v. Smith, 87 Penn. St. 63. |