There is abundant authority for the doctrine that 'the real ownership of a fund deposited in a bank inay be shown to be in another than the person in whose name the deposit is made, and the fund recovered from the bank by the true owner, if the bank has not been misled or prejudiced by the apparent ownership. Frazier v. Bank, 8 Watts & S. 18; Stair v. Bank, 55 Pa. St. 364; Bank v. King, 57 Pa. St. 202. Upon the admitted facts and under the authorities we are of the opinion that the fund in controversy belonged to the plaintiff, and was recoverable by him from the bank or its receiver. The court below was clearly right in holding that the defendant could not set off against the plaintiff’s claim the liability of N. T. Lewis as a stockholder of the bank, or the amount of the note for $1,000. The liability of Lewis upon his assessment was altogether his individual
By the very terms of the case stated judgment was to be given in favor of the plaintiff if the opinion of the court upon the question of set-off was against the defendant. Nevertheless we are asked to reverse the judgment upon the ground that the plaintiff should have proceeded by a bill in equity, instead of by a suit at law. This objection to the mode of procedure was not raised by the defendant in the court below, and it should not avail him' in this court, even if originally well founded. There was a clear, and we think binding, waiver of all objection to the form of the proceedings. The plaintiff, it will be -perceived, did not seek any relief of a distinctively equitable nature. His suit was merely for the recovery of a sum of money. Then, again, by the Pennsylvania statute, set-off is a legal defense. Now, the parties by virtue of their agreement embodied in the case stated dispensed with a trial by jury, and submitted the controversy to the judgment of the court. The case, then, was properly before the court for determination, and it made no difference whether the judge was sitting on the law side or the chancery side of the court. In either case the result would have been the same. The defendant did not ask permission to withdraw from the case stated, but took his chance of a judgment favorable to himself. The objection which he now raises in this court to the course of procedure below comes too late. This case essentially differs from that of Hurst v. Hollingsworth, 100 TJ. S. 100, in which there was a blending of equitable and legal causes of action in one suit, and where there was a denial by the trial court of permission to the plaintiff to recede from a stipulation improvidently made. There is much in the opinion of the supreme court in Hurst v. Hollingsworth (page 102) tending to sustain the view we take here.
Furthermore, upon this record we are not prepared to adjudge that the plaintiff’s cause of action was not cognizable at law. Every presumption is to be made in favor of his right to maintain a suit at law for the recovery of his property. The terms of the submission of the controversy to the decision of the court virtually conceded that the legal title to the fund was in the plaintiff. The