The indictment avers that “in truth and in fact the assets, at the time of making the representation aforesaid, were not in excess of its debts and liabilities, and said People’s Savings Bank was not solvent and able to pay all its debts and liabilities.” That seems a sufficient negative of the pretended facts.

The remaining objection to the indictment is, as alleged in the reasons for quashing it, that it charges that the money was obtained by both a pretense and a promise; and, so far as the court can know, the promise alone may have induced the prosecutor to part with his money. The defendant concedes that if the indictment had charged the pretense alone, admitting its sufficiency, the proof would have been sufficient, even though it showed that the deposit was partly induced by the promise. Nor is it claimed that, should the defendant be convicted on this indictment, the court would arrest the judgment because the promise is set out therein. It is settled that when a pretense and promise are made together, and both operate in the inducement, the case is within the statute if the pretense of a false existing or past fact be sufficient. Indeed, when they are blended, it may be difficult to prove one without the other; and equally difficult to fairly state the pretense, without the accompanying promise, in the indictment. Both may be proved, and the jury determine whether the prosecutor would have parted with his property without the pretense. If the grand jury act intelligently, they would no more likely find a true bill on the promise alone than the petit jury would a verdict of guilty. They hear the testimony of the blended pretense and promise; and that both are in the indictment can work no prejudice to the defendant.

In State v. Dowe, 27 Iowa, 273, the defendant demurred to the indictment, and the demurrer was overruled; the court remarking: “The fact that a promise is combined with a false pretense does not take away the criminal character of the act.” That case is meagerly reported, yet it seems the indictment, setting forth pretense and promise, was sustained. The case of Reg. v. West, 8 Cox, Grim. Gas. 12', is when the pretense was blended with a promise, and it appears both were alleged in the indictment, but no question was raised as to the practice.

\Ve are not convinced that the indictment is fatally defective, and therefore are bound to say that the order quashing it is erroneous. Com. v. Church, 1 Pa. St. 105.

Judgment reversed, and procedendo awarded. Record remitted.

COMMONWEALTH v. WALLACE. (Supreme Court of Pennsylvania. November 1, 1886.) Certiorari to quarter sessions, Lawrence county. TRUNKEY, J. This case was argued with the preceding case, between same

HACKETT v. REYNOLDS and others.1
(Supreme Court of Pennsylvania. November 1, 1886.)

BANKS AND BANKING—CUSTOM 0F CORRESPONDING BANKS as To Connno'rrons— RIGHTS OF OWNER or None.

A. deposited with B., a bank, for collection, a note, which he indorsed in blank. B. sent it to its correspondent 0., indorsed: “Pay N., cashier, or order, for account B.” 0. gave nothing for the note, and afterwards collected the amount of it. Prior to the collection B. became insolvent, and was indebted to C. in the sum of $7,000, and 0. applied the proceeds of the note to this indebtedness. Held, upon a suit by A. against 0., that the usage or custom between B. and C. to apply the collections to overbalances could not prevail, and that C. was liable to A. for the amount of the note.

Error to common pleas, Venango county.

Assumpsit by Thomas Hackett against J. B. Reynolds, R. Colbert, and S. H. Lamberton, trading as Reynolds, Lamberton dz Co.

On January 3, 1884, J. J. Fisher, of Oil City, made and delivered to Thomas Hackett, of Pittsburgh, his promissory note for $424.12, payable, five months after date, to the order of Hackett, at the Oil City Savings Bank, of Oil City. In February, 1884, plaintiff placed the note in the Penn Bank of Pittsburgh, for collection, indorsing his name thereon in blank. About May 20th the Penn Bank forwarded the note to the defendants, Reynolds, Lamberton (it Co., bankers at Oil City, and indorsed the note: “Pay S. H. Lamberton, cashier, or order, for account Penn Bank, Pittsburgh. G. L. REIBER, Cashier.” The defendants were their regular correspondents, and had been for several years. They kept mutual accounts. They collected for the Penn Bank, and placed to its credit, and the Penn Bank did the same for them. On May 26th, at noon, the Penn Bank failed, and the defendants heard of it at once by telegraph. Mr. Lamberton, about half-past 3 o’clock of the same day, called on Fisher for payment. He could not pay, but gave two notes at 30 and 60 days, which were paid when due. About May 31st, the old and new notes being in defendants’ possession, plaintiff called on them, and notified them that the note belonged to him, and demanded it. He was informed that it was paid and credited to the Penn Bank. When defendants received the note, there was a balance of about $7,000 due from the Penn Bank to the defendants. It did not appear that there was any money advanced by defendants to the Penn Bank on the credit of this note, or that the balance was in any way increased after plaintiff ’s note came into their hands. Verdict and judgment for defendants, whereupon plaintiff took this writ.

Wm. McNair, for plaintiff in error.

Where a banker in one city, acting as the agent to transmit, sends the draft or note of a third party in another city for collection, the collecting banker cannot, on failure of its correspondent, credit the proceeds of the draft or note to his account, but is liable therefor to the owner. Jones v. Millikan, 41 Pa. St. 252; Wilson v. Smith, 3 How. 763; McBride v. Bank, etc., 25 Barb. 651; Lawrence v. Bank, etc., 6 Conn. 275; Bank, etc., v. Goodman, 43 Leg. Int. NO. 3; S. C. 2 Atl. Rep. 687. The case is ruled by Ban/t, etc., v. Gregg, 79 Pa. St. 384.

R. G. Lamberton, E. H. Lamberton, and J. H. Osmer, for defendants in error.

In the absence of notice of plaintiff’s title, defendant had a right to treat its correspondent as owner of the note. Bank of the Metropolis v. Bank of New England, 1 How. 234; S. C. 6 How. 212; Jones v. Milliken, 41 Pa. St. 255; 1 Daniel, Neg. Inst. §§ 339, 340.

CLARK, J. Although the indorsement by Hackett was in blank, it is undisputed that he was the real owner of the note; that the Penn Bank received it for collection only, but remitted it to Reynolds, Lamberton & CO. as if it were the paper of the bank. The indorsement was: “Pay S. H. Lamberton, cashier, or order, for account, Penn Bank, Pittsburgh. G. L. REIBER, Cashier.” We must also assume, for the verdict establishes the fact, that Reynolds, Lamberton & Co. had no notice whatever that the apparent relation of the Penn Bank to the paper was not its real relation to it. They had an undoubted right to treat the Penn Bank as the actual owner of the note. If, therefore, they had purchased it for a valuable consideration, or made advances upon it, or given new credit upon the faith of it, they would have been protected as bona fide holders or owners of the note. But it is not alleged that Reynolds, Lamberton at C0. bought the note, or advanced or gave credit upon it. It is contended that there had been mutual dealings between the Penn Bank and Reynolds, Lamberton & CO. ; that they had an account current between them, in which they credited each other with the proceeds of all paper remitted for collection; that their accounts were from time to time settled on these principles; that, upon the credit of these remittances in their usual course of dealing, balances were suffered to remain in the Penn Bank, to be met by the proceeds of these remittances; and that the proceeds of the Hackett note were, in good faith, credited to the Penn Bank, under this course of dealing. The court instructed the jury, if this was so, their verdict should be for the defendant.

Upon an examination of the whole case we fail to find any evidence showing, or tending to Show, that any balances were, in point of fact, suffered to remain, to be met by these remittances, and which, but for this course of dealing, would have been drawn. It does not appear for what particular purpose these balances were suffered to remain. \Ve might as readily suppose they were kept for convenience or to facilitate exchanges, or for both or all these purposes, as for the purpose stated. Mr. Lamberton, the only witness who testifies on this subject, says, in substance, that he is the cashier of the banking firm of Reynolds, Lamberton & Co. at Oil City; that the Penn Bank was their Pittsburgh correspondent, and made their collections in Pittsburgh, and that they did the same for the Penn Bank in Oil City; that mutual accounts were kept, in which each of the said banks gave credit to the other for collec~ tions made, respectively; and that this had been their custom for many years. He further states that the Fisher note was paid on the twentysixth May, 1884; that the proceeds were placed to the credit of the Penn Bank in the usual course of business, and the credit was acknowledged to them on the same day; that, after this credit was entered, there remained a balance of about $6,000, in favor of Reynolds, Lamberton & Co. against the Penn Bank. There is not the slightest evidence that this balance of $6,000 had been suffered to remain upon the faith of, and to be met by, remittances for collection from the Penn Bank.

We are of opinion, moreover, that if there had been evidence to this effect, in order to avail the defendants in this case, it must be shown that the balances were suffered to remain upon the faith of remittances received, or, under some circumstances perhaps, in process of transmission; and that Reynolds, Lamberton & Co., relying upon such remittances, actually did something, or forebore to do something, by which their condition was worse than it would otherwise have been. To this extent we are willing to follow the rule laid down in Bank of the Metropolis v. Bank of New England, 1 How. 234; S. C. 6 How. 212. A purchaser or holder of a legally executed negotiable instrument can hold it against all claims and defenses, where he has acquired it, not only in good faith, but upon a valuable consideration. This, in Pennsylvania, is a rule of general application, equally binding upon banking companies, in their dealings with each other, as upon individuals. We cannot consent to the doctrine that a mere usage and course of dealing between banks in the transmitting of bills and notes for collection, by which they mutually credit the avails in account to overbalances due, can, without more, deprive a third person, the real owner of the notes or bills, of his rights.

The case is distinctly ruled by First Nat. Bank of Clarion v. Gregg, 79 Pa. St. 384. The language there employed by Mr. Justice WILLIAMS, when applied to the case under consideration, mutatis mutandis, expresses with the greatest clearness and accuracy the proper determination of this case.

The Penn Bank did not become the owner of the note by the plaintiff’s indorsement and delivery of it to them for collection, and they, had no right to pledge. it, or direct its proceeds to be placed to their credit, in payment of their indebtedness to Reynolds, Lamberton & 00. It is true that they were the apparent owners of the note, and, in the absence of notice of the plaintifi"s title, Reynolds, Lamberton & Co. had the right to treat them as the real owners. If Reynolds, Lamberton & Co. had made advances or given new credits to the Penn Bank on the faith of the note, they would undoubtedly be entitled to retain the amount out of the proceeds; but just at this point the defense wholly fails. The testimony iof the cashier does not show that Reynolds, Lamberton & Co. made advances, or gave any new credits on the faith of the note; nor does it show that they incurred any liability or did anything by which their condition is worse than it would have been if they had not received the note for collection and credit, or that they will suffer any loss or damage if the credit is not allowed. If so, they clearly have no equity which entitles them to withhold the proceeds from the owners of the note.

The judgment is reversed, and a centrefac'ias de novo awarded.

I

Appeal of SPIER, Guardian.l
(Supreme Court of Pennsylvania. November 1, 1886.)

WILIr—LEGACY—CHARGED 0N LAND—ADEMPTION—ESTOPPEL.

Testator, in a will made in 1866, devised to his son A. a farm of 84 acres, charged with a legacy of $800 to testator’s daughter B. He also devised to his son C. a farm of 55 acres absolutely. Some six years after making this will, he conveyed to C. the farm devised to A., and to A. the farm devised to C. He also sold his personal property. receiving notes to the amount of $500, which he placed in the hands of D., in trust for his daughter B. After the death of testator, E., the guardian of the children of B., who had also died, brought ejectment against D., who defended under the devise in the will, and a deed from the devisee. Being defeated in the ejectment, E. petitioned the orphans’ court for payment of the legacy of $800. Held, that there was an ademption of the legacy, which discharged the land; and, further, that D. was not estopped from setting up this fact because he had successfully made use of the will to defend his possession in the action of ejectment.

Appeal of L. B. Spier, guardian of Charles and Nancy Spier, children of Nancy Spier, from the decree of the orphans’ court, Mercer county, dismissing his petition for the payment of a legacy of $800.

The opinion of the orphans’ court, (MEHARD, P. J .,) on exception to the auditors report, is as follows:

“The facts of this case, as found by the learned auditor, are not in controversy. It appears therefrom that Samuel L. Hendrickson, the respondent, is ' the grantee and present owner of 84 acres of land devised by James R. Melvin, deceased, in his last will and testament, dated August 2, 1866, to his son James A. Melvin, and that this land was by said testator subjected to the lien of a legacy of $800 bequeathed in the same will to testator’s daughter, Nancy Spier. This legatee died in 1869, eleven years before the death of the testator, and left to survive her two children, Charles and Nancy Spier, who are the petitioners in this case, and who seek to recover the said legacy. The counterfacts relied upon by respondent are, briefly, that in 1872 James R. Melvin concluded to change the provision made in his will for his daughter, who in the mean time had died, and to substitute therefor a sum of money to be deposited by him with a trustee for the use of Nancy’s children, who were minors. Accordingly he made a vendue, and sold his personal property for $516.82, and gave the notes of the vendee to Samuel L. Hendrickson, with instructions to collect them, and pay over the money to Nancy’s children on their arrival at majority; intending thereby an ademption of the whole legacy bequeathed to Nancy.

“ While the learned auditor finds the facts as stated, and properly concluded that they worked an ademption of the legacy now in dispute, yet his final conclusion is in favor of petitioners’ right to recover it. To this he is led by the following facts: At the time James R. Melvin substituted the deposit with Hendrickson, as trustee for Nancy’s children, for the legacy bequeathed to Nancy, he also made a deed to his son Joseph for the 84 acres devised in his will to his son James A., and likewise made a deed to James A. for the land he had devised in said will to Joseph. The auditor finds that the provision