Appeal of the Farmers' & Mechanics' Bank

The opinion of the court was delivered, by

Thompson, J.

— The relation disclosed in the transaction between the bank and the estate of the decedent, Konigmacher, was simply that of debtor and creditor; the case of Bosler v. The Exchange Bank, 4 Barr 32, rules the case in hand against the appellants. It is a mistake to suppose that Beaver v. Beaver, 11 Harris 167, did, or was intended to overrule Bosler v. The Exchange Bank, although the reporter says so in his syllabus. Lewis, J., in delivering the opinion of the court in Beaver v. Beaver, after citing it and Light v. Leininger, 8 Barr 403. in which it is fully recognised, said, “ but these cases do not touch the question presented on this record.” Nor did they. They were cases of debtor and creditor, and Beaver v. Beaver was the case of a surety called on to pay a demand to the estate of his principal, and the court, on equitable grounds, allowed the defendant to retain, by means of a conditional verdict, funds in his hands as indemnity against part of the claim sued for, and gave liim a set-off for a portion paid as surety. The cases are very dissimilar.

The effect here, it is true, is "to protect the accommodation drawers of Konigmacher, who stand in the light of sureties to the hank. But I see not how the hank becomes clothed with their equities, or bound to assert them,- so as to-bring the case within the principle of Beaver v. Beaver. The contest is exclusively between the bank and the estate of Konigmacher, and as his estate is insolvent, and his debt to the hank did not fall due till long after the hank was his debtor, the appellants, on the authority of the cases cited, were not entitled to retain the money in hand to the extent claimed: 2 Smith’s Leading Cases 329.

Decree affirmed, at the costs of the appellants.