EARLE v. MUNCE

EARLE v. MUNCE. (Circuit Court, E. D. Pennsylvania. December 30, 1904.) No. 59. 1. Banks — Bonds—Overdrafts—Actions—Affidavit of Defense. In an action by the receiver of a national bank on a bond and for an overdraft, an affidavit of defense alleging that the president of such bank prior to its failure was also president of another institution in which defendant was a depositor, and that the president falsely assured defendant of the soundness of such other institution, and that defendant thereby lost a sum in excess of the claim in suit, was insufficient. ¶ 1. Actions by and against receivers and “agents” of national- banks, see note to McCartney v. Earle, 53 C. C. A. 398. In Assumpsit. Asa W. Waters, for plaintiff. George F. Munce, pro se. [MAJORITY — HOLLAND, District Judge.] HOLLAND, District Judge. The plaintiff moves for judgment for the want of a sufficient affidavit of defense. The declaration is upon a bond executed by the defendant and another in favor of the plaintiff, and for an overdraft by check on the Chestnut Street National Bank, of which the plaintiff is now receiver. The defense is that the president of the Chestnut Street National Bank, prior to its failure, was also president of another institution in which the defendant had a deposit, and that the president of the Chestnut Street National Bank assured defendant of the soundness of this other institution, which assurance was afterwards found to be erroneous, and 'by reason thereof the defendant claims to have lost a sum in excess of the claim in this suit. Because the president of the Chestnut Street National Bank was the president of the other institution about which this erroneous information was furnished, the defendant attempts to set off his loss there against the claim here. This cannot be allowed. Judgment for debt, interest and' costs, in accordance with the claim, will be entered for want of a sufficient affidavit of defense.