power of attorney to confess judgment, that he | i. e., after the consideration has failed, and there had better come to Harrisburg, to look after his has been no assignment for value. The defence interests, and that he came, and, without con- is a familiar one in equity, and analogous to sulting either Dougherty or the plaintiffs, entered stoppage in transitu, when applied to contracts up the judgment. in relation to property. No points were presented to the Court below, but the Court charged the jury as follows: "If you find from the evidence that the plaintiffs were insolvent on the 3d day of April, 1877, then you will give the defendants credit for the amount of the note due May 5, 1877, $15,000." Verdict for the defendants, and judgment thereon. The plaintiffs took this writ of error, assigning for error the sustaining of the objection to plaintiffs' offer of evidence, and the charge of the Court below. A. D. Campbell and James E. Gowen, for plaintiffs in error. (1) The relation between a bank and its depositor is merely that of debtor and creditor. Foley v. Hill, 2 H. L. C. 28. Bank v. Jones & Cole, 6 Wr. 536. Agra Bank v. Hoffman, 34 L. Jour. Ch. 285. Set-off is of purely equitable origin, and the fact of the statute regulating it at law, does not take away the equitable right which exists in case of insolvency. Chapman v. Derby, 2 Vern. 117. Ex parte Wagstaff, 13 Ves. 65. Demmon v. Boylston Bank, 5 Cush. 195. Receivers v. Paterson Gas Co., 3 Zab. 283. There was no proof that the checks were given for value, nor of any notice of the assignment until the equity had arisen. The credit of the discounted note is equivalent to the deposit of so much cash; and there is an implied understanding on the part of the bank May 3, 1880. THE COURT. Whatever may that it will honor its depositors' drafts to the ex-be the rights of a party, whose debt is due and tent of the deposits. Rolin v. Steward, 14 C. B. Rep. 595. R. 740. 604. Beckwith v. Union Bank, 4 Sandford, S. C. R. 467. (2) At the time of bringing this suit the renewal note had not matured, and the bank cannot, therefore, under the Defalcation Act, set off this indebtedness of the plaintiffs in the present suit. payable, to compel an insolvent debtor to set off The bank has, therefore, no lien upon the de-a claim against him not due, a party, whose debt posits for unmatured debts due by the depositor. is not due, has no equitable claim to have it set Bower v. The Foreign and Colonial Gas Co., de-off against a debt of his own, already due, in the fendant, and the Metropolitan Bank, gar., 22 W. hands of a party who is insolvent. (Spaulding v. Backus, 122 Mass. 553; Bradley v. Angel, 3 N. Y. 475; In re Commercial Bank Corporation of India and the East, L. R. 1 Ch. App. 538.) In the latter case it was said that where there is, on one side, a debt presently due, and on the other a liability which will accrue due at a future day, the debt cannot be set off at law against the liability, nor can it be so set off in equity. This is at variance with Lindsay v. Jackson (2 Paige, 581) where the defendants, who held notes of the plaintiffs not due, were restrained from negotiating them, to the end that they might be applied as a set-off against a deb then due by the defendants to the plaintiffs. Bu it is ruled in Bradley v. Angel (supra) that one whose debt is not due, has no equitable right to set off against a debt due to him from an insol vent estate, and the decision in Lindsay agains Jackson is confined in its operation to such fact as constitute its base. A bank has no lien o money standing to the credit of one of its de positors for the amount of a note of such de Pennell v. Grubb, 1 H. 552. In re Com. Bank Corporation, L. R. I Ch. App. 538. The assignment of the deposit before the maturity of the note, in any event defeated the right of set-off; we had a right, therefore, to prove this upon the trial. Northampton Bank v. Balliet, 8 W. & S. 311. Jeffryes v. Agra & Masterman's Bank, L. R. 2 Eq. positor, discounted by the bank, but which ha 674. Martin v. Kunzmuller, 37 N. Y. 396. contra. This suit was brought to enforce a contract to loan after the borrower had become insolvent not matured. The purpose is that the custome may draw out at his pleasure the avails of his dis count. A debtor in one sum has no lien upo: money in his hands for the payment of an ur matured debt owing to him, and a bank is debtc for the discount which is placed to its depositor by the buyer to the other people. It was long a mooted question whether the effect of this remedy of the vendor is a rescission of the sale, or a re credit. If it could retain the money against the note the discount would be useless to the borrower. (Jordan v. Shoe and Leather Bank, 74 N. Y. 467; Fourth Nat. Bank of Chicago v.storation of possession of the goods with the City Nat. Bank of Grand Rapids, 68 Ill. 398.) The owner of a debt may assign it for value, and give title as against the debtor, though he holds liabilities of the creditor not yet matured at the time he received notice of the assignment. (Jeffryes v. Agra and Masterman's Bank, L. R. 2 Eg. 673.) On the foregoing principles the plaintiffs claim that the judgment must be reversed, and so it must, if they apply to the facts of this case. The facts conceded and established by the verdict are as follows: The plaintiffs were bankers at Harrisburg, and had an account with defendant, a bank in Philadelphia. On April 2, 1877, the balance due plaintiffs on that account was $14,399.63, and they owed to defendant $15,000 on a note, the proceeds of which had gone into the account. Prior to said date the parties had agreed to a renewal of the note, and the plaintiffs sent a new one for same sum, payable May 5, 1877, which defendant received, and, and on the 2d of April, sent the original note by mail to the plaintiffs. April 3 the plaintiffs did not open their bank for business, and were insolvent. The defendant, hearing of this, immediately charged the plaintiffs with the original note, credited them with $85, the discount on the new one, resulting in a balance due defendant, and tendered to the plaintiffs the new note, discount and collaterals. April 2 the plaintiffs gave to Weir and Hunter three checks amounting to $13,300 which were presented to the defendant and payment refused; but it does not appear they were presented, or that defendant had notice of them, till after the said tender and withdrawal of the credit. The question is, shall the defendant, having discounted the plaintiffs' note and extended their credit for its amount, and, upon learning of their insolvency, before payment to, or notice of any checks or assignments by them, having withdrawn the credit and tendered back the consideration, be compelled to pay the money? If so, it would be against everybody's sense of right. The point is not merely one of set-off, whether legal or equitable. Justice and equity forbid that one man's money shall be applied to the payment of another man's debts. On this is based the right of a vendor to stoppage in transitu, which arises solely upon the insolvency of the buyer. Where a vendor has delivered goods out of his possession, into the hands of a carrier for delivery to the buyer, if he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due rights of an unpaid vendor; but now it seems the better opinion that the contract is not rescinded. Although this remedy of a vendor, which exists only before actual delivery of the goods into the buyer's possession, cannot be exercised in precisely the same mode by a lender of money or credit, yet for similar cause the lender ought to have as efficient remedy until the money is paid to, or the credit is used by the borrower. The lender's remedy may have the effect of a rescission of the bargain. Goods can be held subject to a lien for the price agreed upon, and, if disposed of for more or less than that, the buyer may have the gain or suffer the loss; but when a borrower has as little right to the money, as a buyer has to the goods, it is impracticable to hold and dispose of the money with like result. Nor is there reason for so holding the value of the goods may increase or diminish, whereby the buyer may be gainer or loser by his contract the value of money is fixed. Insolvency takes the pith out of the borrower's promise to pay, and if he has not yet received the money he should not take it. He did not get the credit in view of his bankruptcy. The consideration so failed that the defendant was warranted in tendering it back, and an equity arises as against the legal plaintiffs, which prevents their enforcement of the contract. To permit them to recover after their note, the foundation of their claim, is proved worthless, would be the grossest injustice. The defendant's agreement to take the renewal note was not wittingly made for an empty promise. Plaintiffs contend that Hunter and Weir are innocent purchasers for value. In what sense? They asked no information before taking the checks; no paper of any kind was given by defendant, showing that the plaintiffs had the right to draw or assign. Before presentment or notice of the checks, the plaintiffs' insolvency was shown by a notorious act, and their right to draw was immediately denied by defendant. A vendor's right of stoppage in transitu is defeasible in one way only, and that is, when the goods are represented by a bill of lading, which is in the vendee's possession with the vendor's assent, and is transferred to a third person who in good faith gives value for it. Here, the defendant did nothing to mislead third persons, and the plaintiffs had no writing to assign. The facts reveal no superior equity in the persons for whose use action is brought. We are impelled to the conclusion: Ist. That the defendant had a right to tender back the discounted note and refuse payment to the legal A teller of a National Bank, incorporated under the laws of the United States, may be convicted in a State Court upon an indictment charging him with fraudulently making false entries in the books of the bank with intent to injure and defraud the bank. Such an offence is forgery at common law. Commonwealth v. Beamish, 31 Sm. 389, followed; Commonwealth ex rel. Torrey v. Ketner, 8 WEEKLY NOTES, 133, distinguished. Semble, that an indictment for such an offence, laid un der the statute, and not charging forgery in the technical manner required by strict rules of the common law, is nevertheless good under the Criminal Procedure Act. Error to the Quarter Sessions of Schuylkill County. Two indictments against Charles E. Luberg. The first, No. 268, May Term, 1878, charged him, as receiving teller of the First National Bank of Mahanoy City, with receiving the moneys, etc., therein named, and unlawfully, maliciously, wilfully and fraudulently embezzling, abstracting, and misapplying the same, with intent to injure and defraud, in the first count, the bank, and in the second count, the individual stockholders. The second indictment, No. 269, May Term, 1878, charged him with having, as the receiving teller of the said bank, unlawfully, maliciously, wilfully, and fraudulently made false entries in the books, reports, and statements of said bank, with intent thereby to injure and defraud said bank. The bank was duly incorporated as a national bank under the laws of the United States. Defendant pleaded "not guilty," and was found guilty under both indictments. He was sentenced on the first to one year's imprisonment, to take effect immediately; and on the second to one year's imprisonment, to take effect "immediately after the expiration of the first." The prisoner took this writ, assigning for error that (1) the Court had no jurisdiction over the offence charged in the first indictment; and (2) the Court had no jurisdiction over the offence charged in the second indictment. The National Banking Act of June 3, 1864,* contains no such proviso, hence the offence of embezzlement of funds of a national bank is cognizable in the United States Courts only. Commonwealth v. Felton, 101 Mass. 204. State v. Tuller, 34 Conn. 280. Commonwealth v. Barry, 116 Mass. 1. The State Court had no jurisdiction under the Acts of Assembly. That of June 12, 1878 (P. L. 1878, 196), repealed §§ 112, 116, 117, and 119 of the Crimes Act of 1860 and § 36 of the Free Banking Act of 1861, and the latter relates only to offences against institutions created un der it. The case is finally ruled by Commonwealth ex rel. Torrey v. Ketner (8 WEEKLY NOTES, 133). A. W. Schalck, District Attorney (with whom were Geo. R. Kaercher and Lin Bartholomew), for the defendant in error. The material portions of that Act are as follows:55. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent apand every person who with like intent aids or abets .. pointed to examine the affairs of any such association; shall be deemed guilty of a misdemeanor, and shall be imprisoned not less then five years nor more than ten. 56. And be it further enacted, That all suits and proceedings arising out of the provisions of this Act, in which the United States or its officers or agents shall be parties, shall be conducted by the District Attorneys o the several districts, under the direction and supervision of the Solicitor of the Treasury. may 57. And be it further enacted, That suits, actions, and proceedings against any association under this Act, of the United States, held within the district in which be had in any Circuit, District, or Territorial Court such association may be established; or in any State, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar the comptroller under this Act shall be had in a Circuit, cases; Provided, however, That all proceedings to enjoin District, or Territorial Court of the United States, held in the district in which the association is located. Offences against the United States are fre- offence of forgery in the technical manner requently punished in the State Courts. Commonwealth v. Schaffer, 4 Dall. 27. quired by the strict rules of the common law, but, as in Commonwealth v. Beamish, is good under our Criminal Procedure Act. That the Act of Assembly does not call it forgery makes no difference. It is the same offence. The first assignment alleges error in another Jett v. Commonwealth, 7 Am. Law Reg. N. S. 260. case in which the plaintiff in error was convicted United States v. Amy, Id. 267. Coleman v. State of Tennessee, 7 Otto, 309. It is the nature of the offence, not the person offended, which determines the jurisdiction. But the offence was punishable under the Act of 1860 (supra), which if repealed by the Act of June 12, 1878, was not so done until after indictment found. The case is not ruled by Comth. ex rel. Torrey v. Ketner (supra); for it is an offence as forgery at common law. THE COURT. The second May 3, 1880. assignment denies the jurisdiction. The plaintiff in error was convicted upon an indictment charging him as receiving teller of the First National Bank of Mahanoy City, with fraudulently making false entries in the books, reports, and statements of said bank with intent to injure and defraud the said bank, and we are asked to reverse the judgment upon the ground that the offence charged having been committed by an officer of a national bank, it is not the subject of indictment in a State Court. Commonwealth ex relatione William Torrey, decided at the last term (8 WEEKLY NOTES, 133), was relied on to sustain this position. Torrey was indicted as cashier of a national bank with embezzling the funds of the bank, and he was discharged upon habeas corpus for the reason that the offence was not indictable at common law, and our statutes defining and punishing the offence do not apply to national banks. Here the indictment charges an o:fence which was a crime at common law. In Commonwealth v. Beamish (31 P. F. Smith, 389), it was decided that the fraudulent alteration of a book known as a tax duplicate was forgery at common law. It is plain, under this authority, the plaintiff in error could have been indicted for forgery. The indictment here is laid under the statute and does not charge the and sentenced. We cannot upon this writ of against the same party. Nor is it material, as the error reverse a judgment in another case, though record shows the plaintiff has served out the term of imprisonment imposed by the Court. Judgment affirmed. Opinion by PAXSON, J. Husband and wife-Married Woman's Act— Executed contracts of married woman-Power of married woman to pledge collateral as security for loan. A married woman, owning stock as her separate property, joined with her husband in executing a promissory note, and depositing a certificate of stock with the lender as collateral security for the payment of the loan. The money was delivered at the time the loan was made, and was not used by her for necessaries, nor for the improvement of her real estate. der, on non-payment of the note, to sell the stock without The pledge authorized the lenfurther reference or notice to the pledgors. The lender advanced in the presence of both husband and wife, without knowledge of the intended disposition of the money, and in consideration of the transfer and delivery to him of the stock as collateral security. On a bill in equity filed to restrain the sale of the collateral: Held (sustaining the judgment of the Court below), that the contract was executed, and the lender could retain the stock to answer the purposes for which in good faith it was pledged. GORDON, TRUNKEY, and STERRETT, JJ., dissent. Powers of married woman before and after the Act of 1848 reviewed per MERCUR, J. Appeal from the Common Pleas of Schuylkill County. Bill in equity, filed by Margaret Dando by her next friend, H. A. Kear, against George Batten. The bill set forth that Margaret Dando is a married woman, and has been for the last twenty years living with her husband in charge of his family, and as such was well known to the defendant. That she was possessed in her own right, not acquired from or in any way by or under her husband, of twenty shares of the capital stock of the First National Bank of Minersville, and the certificate was issued to her, and was held by her. That on or about the 4th of May, 1874, she, with her husband, made a MINERSVILLE, May 4, 1874. Six months after date, we or either of us promise to pay to the order of George Batten one thousand and thirty-five dollars, for value received, without defalcation. Along with the foregoing obligation we have delivered to said George Batten certificate No. 65, for twenty shares of the capital stock of the First National Bank of Minersville, as collateral security for the payment of the same on the day it becomes due, which collaterals we hereby authorize and empower the holder of this promissory note (provided the same be not paid at maturity) to sell and transfer at public or private sale, without further reference or notice to us, and to apply the proceeds in payment thereof, together with interest and charges incurred thereon; thereafter, should any deficiency remain unpaid, we further promise and agree to pay the same to the holder hereof on demand. That with said note said certificate of stock was deposited with George Batten (the defendant). That no part of the proceeds of said note was paid to her, and was not used by her for necessaries for her family, nor used for the improvement of her real estate; and, believing said transaction was illegal and void, she notified the said bank not to transfer said shares of stock to said Batten, nor to allow the same to be done upon the books of the bank; and said Batten was also duly notified that she claimed said shares of stock, and demanded him to return the certificate to her, but he neglected and refused to return the same to her. That said Batten disregarded her rights, refused to return her the certificate, and had advertised the same to be sold at public sale on the 5th day of April, 1879. The bill prayed that the defendant be enjoined from selling said stock, and that he be directed to deliver said stock to the compainant. shares of stock and the note were delivered to An amendment to the bill set out that the First National Bank of Minersville was organized under the Acts of Congress, and was not a corporation created under the laws of Pennsylvania; and contained a copy of the certificate of stock, showing that it was only transferable on the books of the bank by her or her attorney on its return. The cause was heard on bill and answer, and the Court refused the injunction and dismissed the bill, delivering the following opinion: "In so far as the writing, thus signed, promises to pay to the defendant the sum of $1035, it is as against her worthless. But this instrument contains much more than a promise to pay money. It is her written authority to the defendant or the holder thereof to sell or transfer at public or private sale her twenty shares of stock, and it is The answer admitted that the complainant is accompanied with the actual delivery of the cera married woman; that she held in her own tificate of stock itself. The property in question name twenty shares of the capital stock of said is personalty, and the method of its transfer is bank; that the certificate was issued to her not prescribed by the Act of 1848. In Hinney therefor; but averred that of the mode of her v. Phillips (14 Wr. 382), Justice AGNEW said, acquiring the same, defendant had no know- Before the passage of the Act of 1848, securing ledge. A copy of the original paper was set the separate estate of married women, it was well forth similar to that averred in the bill, except- | settled that a wife might dispose of such estate ing that the words "Along with the foregoing (personalty) by gift or loan. obligation we have delivered twenty shares of passage of that Act, her power over her own the stock of" were substituted for the words estate is not less, in this respect, than it was be"Along with the foregoing obligation we have fore.' The provision that her estate shall not be delivered to said George Batten certificate No. sold, conveyed, mortgaged, or encumbered by 65, for twenty shares of the capital stock of." | her husband without her written consent, given The answer further alleged that at the time said in the mode provided by the Act, is not a renote was executed, and the certificate for twenty striction upon her own power of disposing of Since the |