152 Pa. 65 | Pa. | 1892
Opinion by
The account of the appellant with the Penn Bank, appears to have been written up in May, 1884, in his individual bank book, and the book returned to him. It showed a balance of over nine thousand dollars due to the bank, and, among' the items charged to him, was his check upon the bank for forty-three thousand two hundred and twenty-five dollars. About this time, the bank failed and made an assignment for the benefit of creditors. The assignee.filed an account in May, 1885.
The fund raised by him was distributed by an auditor in November of that year. In November, 1890, a second account was filed by the assignee. Another auditor was appointed to make distribution, and, in 1891, the appellant appeared before him, claiming to be a creditor to the extent of 'thirty-three thousand nine hundred and forty dollars and thirty-nine cents. The books of the bank in the hands of the assignee, showed, as did h's own bank book, that he was a debtor. It became necessary for him to establish the fact that the books did not show the true state of his accounts, and to do this he testified to the following facts: That on the last day of .Decern
The auditor heard the evidence upon this subject at length, including the testimony of the assignee and an accountant, who had carefully examined the books of the bank, and all the means of information which the papers in the hands of the assignee afforded. He rejected the plaintiff’s claim for the following reasons:
First. If the position of the appellant was sustained by the .weight of the evidence, nevertheless, as the transaction was a fraud upon the directors and creditors of the bank, which he was compelled to set up, and through which he must claim, public policy was in his way.
Second. That as the account was stated in his bank book and thus brought to his attention in 1884, and he had made no effort to correct the mistake, and assert his claim upon the bank, until 1891, the statute had run against him.
Third. If both these positions failed, the auditor was not able to say as matter of fact that the check had been improperly charged, or that he had not received credits to balance it in his account with the bank.
The judgment is affirmed.