delivered the opinion of the court, October 9th 1876.
A vast amount of learning has been wasted in this case. If the questions which were so elaborately argued here and in the court below were legitimately before us, we would certainly feel that the case was not free from difficulty. But Basehore, the defendant, has no standing which entitles him to raise them. He is the debtor of the bank, and this suit was brought against him to recover the amount of such indebtedness. He defends upon the ground that the assignment by the bank was in contravention of the Bankrupt Law. What is that to him ? What has he to do with the distribution of the fund ? That question concerns only the creditors of the bank, and can only be raised by them. It is no answer to this to say that the assignment being void, no title to the note sued upon passed to the assignees. This is substantially a suit by the bank against its debtor. If it were so in form it is not pretended that this defence could be set up. That it was brought by the assignees does not matter. It is true it should have been brought by the assignees in the name-of the bank. But this is the merest technicality. It was amendable of right in the court below, and could be amended here. We may regard that as done which ought to have been done, and consider the record as amended for the purposes of this case. There is abundant authority for this. Palmer v. Waite, 1 Weekly Notes 363, and cases there cited. Nor can this prejudice the defendant. The judgment against him is a full protection. While the defence has developed a solicitude for the rights of the creditors of the bank that is certainly commendable, we are inclined to the opinion that if the defendant will pay his debt to the bank, some means will be found by which the rights of creditors can be ascertained and adjusted. Whether the fund shall be distributed according to the terms of the bankrupt law, or in accordance with our Act of 1860, under which the assignment was made, are questions which do not concern this defendant.
Any other conclusion would lead to difficulty. The time has gone by for proceedings in bankruptcy. There is no assignee in bankruptcy, nor can there be under the admitted facts in the case. If the bank, through its assignees, cannot sue for this debt, it cannot be recovered at all.
The draft in favor of Greesaman, cashier, was clearly not the subject of set-off in this suit. The ■ defendant had no title to it. The endorsement on the back of the note of Abram and Emanuel Basehore shows that there was not an absolute transfer of the draft. The excess of the draft over the note, if recovered, was to be returned to the First National Bank of Shippensburg. But the more serious difficulty is that the draft was given to the defendant without authority. It .is found by the special verdict that “ neither the president nor directors ever gave the said J. D. Greesaman any *165express authority to transfer the draft to Basehore upon any terms or conditions other than the note of Basehore for $2500.” It needs no argument to show that a cashier cannot part with the assets of a bank without its authority. Nor can such authority be implied in the face of the finding of the jury. As the defendant had no title to the draft, it could not be set off either under our Defalcar tion Act, or the Act of 16th April 1850, under which the assignment of the bank was made.
The judgment is reversed, and judgment is now entered here upon the verdict in favor of the plaintiffs for the sum of $2607.72, with interest from the 18th day of January, A'. D. 1876.