Thorp v. Wegefarth

• Decision Date: 07 January 1868
• Citation: 56 Pa. 82
• Parties: Thorp <I>versus</I> Wegefarth.
• Court: Pennsylvania Supreme Court

56 Pa. 82

Thorp versus Wegefarth.

Supreme Court of Pennsylvania.

October 25, 1867.

January 7, 1868.

October 25th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the Court of Common Pleas of Crawford county: No. 117, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

P. Church and G. Church, for plaintiff in error, referred to Enabling Act, August 22d 1864, Pamph. L. 977; General Banking Act, April 16th 1850, §§ 10, 30, Pamph. L. 477, March 22d 1817, § 1, 6 Sm. L. 438, Purd. 93, 94, pl. 50, 54, 57; National Banking Act, June 3d 1864, §§ 1, 32, 44; 2 Bright Dig. pp. 51, 61, pl. 1, 32, 44; Markoe v. Hartranft, Am. L. Reg. 1867, p. 491; Pennell v. Grubb, 1 Harris 552; Huling v. Hugg, 1 W. & S. 418; 3 Johns. 145; 18 Id. 324; Bank v. Spangler, 8 Casey 474; Phillips v. Bank of Lewistown, 6 Harris 395.

W. R. Bole and S. N. Pettis, for defendant in error, referred to General Banking Act, April 16th 1850, Pamph. L. 477, Purd. 87-105, passim; National Banking Act, June 3d 1864, 2 Bright. Dig. 51, et seq.; Enabling Act, August 22d 1864, Pamph. L. 977; Northampton Bank v. Balliet, 8 W. & S. 311; Bank v. Spangler, 8 Casey 474; Phillips v. Bank of Lewistown, 6 Harris 395; Bayard v. Shunk, 1 W. & S. 92; Wheeler v. Hughes, 1 Dall. 23; Foulke v. Harding, 1 Harris 245; Knowles v. Lord, 4 Wh. 485; McCrellish v. Churchman, 4 Rawle 36; Ex parte Dornford, 5 E. L. & Eq. 242; Gilmore v. Holt, 4 Pick. 358; Southworth v. Smith, 7 Cush. 391; 5 Id. 363; McIniffe v. Wheelock, 1 Gray 600; Lauman v. Lebanon Valley Railroad, 6 Casey 42; Baltimore and Susquehanna Railroad Co. v. Musselman, 2 Grant 352.

The opinion of the court was delivered, January 7th 1868, by AGNEW, J.

Under the Enabling Act of this State, in conjunction with the permissive feature of the National Bank Law, it may well be conceded that the national banking association became liable for the existing debts and liabilities of the state bank, when the latter passed into the former, carrying with it all its assets. Had the defendant then been the debtor of the state bank, and also its creditor by possession of its notes of circulation, doubtless the mutual obligation would have remained, and he could have compelled the national bank association to receive the notes of the state bank in payment of his debts, whether the former were insolvent or not. But two important elements in the logic of the defendant's argument are wanting. The defendant was the debtor, not of the state bank, but of the national association, and judgment was obtained for this liability. The defendant was not then the holder of the state bank notes, and even when judgment was obtained, was not the creditor of the national bank by their possession. He therefore had no right of set-off. To a judgment there can be no set-off of a debt not in judgment. One judgment may be set off against another, through the equitable powers of the court, but to a judgment ripe for execution, there can be but one answer, to wit, payment pure and simple. The very issue ordered by the court corrects the argument. The judgment was not opened to let the defendant into a pre-existing defence, but the court directed a feigned issue to "try the question whether said judgment has been equitably paid since the rendition of the same." Another fact, important to defendant's argument, is that he gave no evidence to show that he was a holder of the state bank notes previous to the closing of the doors of the national association; nor indeed for any length of time before his tender in payment. The closing of its doors was on the 27th March 1866, and it was not until the following December he made his tender, and then founded his right to make the tender to the president at his private residence on the fact that he had found the doors of the bank closed in the previous October, when he went to make a tender.

Thus after the national bank association had committed an act of insolvency, he purchased its indebtedness, and seeks to pay off his own debt with it. It is understood that the national association was responsible for these notes of the state bank, and when he purchased its notes, he bought only the indebtedness of the national association in becoming its creditor. It is true its obligation to pay was derivative by operation of the united action of the state and national laws,...