Taggart, and the executors of John Todd, were not entitled to dividends as depositors under the Act of April 26, 1844, § 9 (P. L. 1844, 419). They all filed exceptions to this decision, and on April 10, 1877, upon agreement of all the parties in interest, to facilitate a scheme for partial dis

The Bank of Brandywine, a State bank located in the city of West Chester, was incorporated by an Act of Assembly of March 18, 1871. It went into operation soon after the date of its charter, and continued to transact business until December, 1875, when it made an assignment to W. W. Jefferis, for the benefit of its creditors. John H. Brinton was appointed auditor to make distribution of the fund in the assignee's hands. Testimony was taken before him, which showed, inter alia, the following facts:

The Parkesburg Bank and the firm of Thomas & Taggart were private bankers and brokers doing business respectively at Parkesburg and Coatesville, Chester County. In the course of their business, they forwarded to the Bank of Brandywine for collection, checks, drafts and notes of persons residing in the vicinity of West Chester. These were collected by the Bank of Brandywine and the proceeds credited on its books to the Parkesburg Bank and Thomas & Taggart. The sums so collected were subject to draft by the respective banks, but the usual mode of settlement was by weekly drafts on Philadelphia banks for the balance due. The Parkesburg Bank and Thomas & Taggart likewise collected for the Bank of Brandywine, but nothing was sent to these firms but checks on themselves, and these were but few. When the Bank of Brandywine closed its doors, the balance on its books to the credit of the Parkesburg Bank was $728.72, and that to the credit of Thomas & Taggart $437.98.

In July, 1875, the Bank of Brandywine being in want of funds, J. Todd assigned 27 shares of the City National Bank to W. S. Kirk, the president, to be used as a collateral in borrowing money for its use. Kirk assigned these shares to Maris & Smith, as collateral security for his note of $2000, and entered that amount of money in the Deposit Ledger of the Bank of Brandywine, as follows: "William S. Kirk, special, J. T." After the failure of the bank, Todd paid Maris & Smith the amount of Kirk's note, and received back his certificates of stock. He died soon afterwards, and his executors claimed the $2000 as a deposit.

The auditor decided in his report that the Parkesburg Bank, the assignees of Thomas &

auditor for a restatement, allowing to the exceptors dividends on their claims, with liberty to all interested to file further exceptions. This J. Hill, J. Dewees, and others did, objecting to any dividend on the three disputed claims.

The Court sustained these latter exceptions, and from this decision the Parkesburg Bank, the assignees of Thomas & Taggart, and the executors of J. Todd appealed, assigning for error the disallowance of their respective claims.

J. S. Futhey and W. B. Waddell, for the appellants.

The appellants were all depositors, and should have been allowed dividends on their claims. Story on Bailments, Chap. II., Title Deposits. R. T. Cornwell, W. Darlington, and J. H. Bull, contra.

The appellants were not depositors within the meaning of the Act of 1844.

Bank v. Bank, 3 Wr. 92.

April 4, 1878. The COURT. We think the Court below correctly decided that under the facts in evidence, none of these appellants were depositors within the meaning of the Bank Act of April 16, 1850.

The balances due to the Parkesburg Bank and to Thomas & Taggart, were simply the results of mutual accounts between them and the Bank of Brandywine. The notes, drafts, and checks charged and credited, were merely in the current of their mutual dealings, and when credited did not constitute a deposit in the proper sense of the term as used in the Bank Acts. A depositor meant to be preferred, is one who places his money in deposit for safe keeping, to be paid out on demand upon his checks or drafts therefor. His relation is one of confidence or trust, depending on the faith that his money will always be forthcoming when he needs it. His deposit itself may be cash in any usual form, such as a check of another on a solvent person or institution, as well as in dollars; but it is received and credited because it is used as cash. Such a transaction differs wholly from the transactions of banks and bankers dealing with each other, by way of collections for each other, contained in running accounts of debits and credits. Such transactions are not deemed deposits in a proper sense.

John Todd's case is still more wide of the mark. He loaned certain stock to raise money for the Bank of Brandywine, and the money

pending of the writ of error.

Evidence-Attachment execution-Record of a judgment recovered by the defendant against the garnishee, prior to the attachment, to which a writ of error is pending, admissible for plaintiff on trial on plea of nulla bona.

At the trial on an attachment execution, to which the garnishee had pleaded nulla bona, the plaintiff offered in evidence the record of a judgment in a previous suit by the defendant against the garnishee, to which a writ of error was still pending. The Court refused the evidence offered:

Held (reversing the judgment of the Court below), that the evidence should have been admitted, and the jury directed to return a verdict for the plaintiff; and that the Court should have so moulded and governed the verdict as to protect the garnishee.

Error to the late District Court of Philadelphia County.

Attachment execution by Byron Woodward against John Carson, defendant, and Joseph Singerly, garnishee. The facts of the case were these :

On March 24, 1873, David Armstrong, to the use of J. Carson, recovered judgment against J. Singerly, in the District Court of Philadelphia, for $8942.94. The defendant took a writ of error to the Supreme Court.

On January 3, 1874, Byron Woodward issued an attachment execution against J. Carson, defendant, and J. Singerly, garnishee, on judgment, Sept. T. 1872, $232, which he had obtained against Carson. The case was put at issue as to Singerly by the plea of nulla bona.

At the trial the plaintiff offered in evidence the record of the above judgment, Armstrong to use, etc., v. Singerly. Objected to because the record showed that the writ of error to this judgment was still pending. Objection sustained, and, the plaintiff offering no further evidence, the Court directed a nonsuit to be entered. The plaintiff thereupon took this writ, assigning for error, inter alia, the refusal of the Court to admit the evidence offered.

R. P. White, for plaintiff in error.

The Court should have admitted the evidence and directed a verdict for the plaintiff, and then they could have so moulded and governed the

tra.

McCarty v. Emlen, 2 Dallas, 277.
Crabb v. Jones, 2 Miles, 130.
Sweeney v. Allen, 1 Barr, 380.
Fithian v. Railroad, 7 Casey, 114.
Ins. Co. v. De Wolf, 9 Id. 45.
Falkner v. Ins. Co., 1 Phila. 183.

A. Sydney Biddle and R. C. McMurtrie, con

The record, if admitted, would have been conclusive evidence, and the defendant's liability under the verdict would have remained, even if the judgment, in Armstrong, to use, v. Carson, should afterwards have been reversed.

Bonnaffon v. Thompson, 2 Norris, 460. February 11, 1878. THE COURT. The record of the judgment of Woodward v. Carson offered in evidence was standing in full force and unreversed, and was therefore evidence of an attachable debt. This necessarily demanded its admission in evidence, and carried it to the jury. But the record showed a delivery of a writ of error. This, however, did not destroy the effect of the judgment. Non constat that the judgment would be reversed. Hence the evidence of the existing debt must carry the verdict on the plea of nulla bona. But as the Court has power to administer equity, through the instrumentality of a verdict, the jury had the power, under the instruction of the Court, to return this verdict, subject to the right of the defendant to prosecute his writ of error to judgment of reversal in a reasonable time to be fixed by them. On this verdict the Court had the power to enter the proper judg ment under the attachment law, subject to a stay of execution in the interval, and with leave in case of a reversal to move to open and set aside the judgment, the attachment, and lien to remain, and the plaintiff remitted to his right to proceed to a trial by jury thereupon. The control of the case would then remain in the hands of the Court, which has power to extend the time on sufficient cause shown, or to award final execution. But the exclusion of the record of the judgment was in effect to deprive the plaintiff of the highest evidence of the debt due by the garnishee to the defendant in the attachment, and compel him to try the question of debt de novo, which had already been adjudicated against the garnishee. On the other hand, its admission and an absolute verdict against the garnishee would have deprived him of the fruit of his writ of error in case we should reverse the judgment against him. The administration of equity through common law forms is so well settled in Pennsylvania that this mode of proceeding to save the rights of both parties is fully justified by the current of Pennsylvania decisions.

PER CURIAM. Judgment reversed, and a venire facias de novo awarded.

Claflin v. Einstein. Attachment under the Act of March 17, 1869What will amount to sufficient evidence of fraudulent purchases.

Rule to dissolve attachment.

The plaintiff's affidavit upon which the attachment issued set forth, that the defendants, Einstein & Klein, were indebted to them, H. B. Claflin & Co., in the sum of $767.25 for merchandise sold and delivered; that the debt was fraudulently contracted in that the defendants were insolvent at the times of the purchases; and had no intention or expectation of paying for the goods; that the last goods were purchased in October, 1878, and in November they issued a circular announcing their insolvency, and proposing terms of settlement with their creditors,

stating that their indebtedness amounted to $93,782, and their assets to $15,000 in stock, and $12,000 in good and bad accounts; that they have issued judgment notes to the amount of $18,222, which they threaten to have at once entered up, and to have executions levied thereon. Further, that the defendants had been making considerable purchases, and immediately sending the goods to auction and selling them below cost. The affidavit of the defendant, Klein, in support of the present rule to dissolve the attachment, denied any fraud, and averred that at the time of the purchases the defendants had no reason to suppose that they were insolvent, that their embarrassment had been caused by large demands having been made on them for the return of borrowed money; and that they had never, sold goods below cost; that it is true they are unable to pay their liabilities in full, but that their liability is caused by unusual business accidents and losses; that they still owe considerable sums of borrowed money, secured by judgment, which they are advised they have the right to pay in full.

The plaintiff's counsel having asked the Judge to order the defendant to submit himself to examination before the hearing, the Judge declined to do so, but intimated that any hesitation or reluctance on the part of defendant to a full disclosure, would be apt to weigh strongly against him.

The deposition of Klein, who was subsequently called for cross-examination, showed that in November, 1878, the firm was indebted to the amount of $70,000, the most of which was contracted subsequently to July, 1878; that their assets did

paid from $3000 to $6000 for merchandise, and upwards of $20,000 of borrowed money; that the firm was insolvent in January, 1878, and have steadily become more so.

The deposition of Wm. W. Wan, an accountant employed to examine the defendant's books, showed that the purchases of the firm had aver aged less than $40,000 for the three preceding years, while in 1878 they amounted to $80,185.09, and their sales, which had amounted to $49,096.19 in 1875 (the highest of the three preceding years), giving them a profit of $6000 for that year, amounted in 1878 to only $56,006.02, showing a loss of over $24,000.

Thos. J. Diehl, for the rule.

Where there is a sale and delivery, the fact that the buyer intends not to pay, and conceals his insolvency, is not such a fraud as will avoid the sale. Backentoss v. Spreicher, 7 C. 324.

the

Smith v. Smith, 9 H. 367.

purchase is not fraud legally.

The insolvency of a purchaser at the time of

McGlensey v. Landis, 3 WEEKLY NOTES, 240. Samuel B. Huey, contra.

The disposal by a debtor of his property when heavily indebted is fraudulent.

Whildin v. Smith, 4 WEEKLY NOTES, 88. Fraud may be presumed from all the circumstances surrounding a transaction.

Kaine v. Weigley, 10 H. 182.

It is settled by a preponderance of authority that a party not intending to pay, who induces the owner to sell him goods on credit by concealing his insolvency, is guilty of such a fraud as will entitle his vendor to disaffirm the contract, and recover the goods.

Donaldson v. Farwell, 3 Otto, 633.

THE COURT. The law of Pennsylvania has certainly gone very far, much further than that of other States, in saying that the purchase of goods by a man knowing himself to be insolvent is not a legal fraud, and also that a man in debt may sell his goods, and apply the proceeds to such of his creditors as he may prefer. But I know of no case that says that the extraordinary purchase of goods far greater than the usual course of business requires, by a man knowing himself to be insolvent, is not evidence of fraud

in fact.

Rule discharged.

Oral opinion by MITCHELL, J.