Opinion by
Mr. Justice Williams,The account of the appellant with the Penn Bank, appears to have been written up in May, 1884, in his individual bank book, and the book returned to him. It showed a balance of over nine thousand dollars due to the bank, and, among' the items charged to him, was his check upon the bank for forty-three thousand two hundred and twenty-five dollars. About this time, the bank failed and made an assignment for the benefit of creditors. The assignee.filed an account in May, 1885.
The fund raised by him was distributed by an auditor in November of that year. In November, 1890, a second account was filed by the assignee. Another auditor was appointed to make distribution, and, in 1891, the appellant appeared before him, claiming to be a creditor to the extent of 'thirty-three thousand nine hundred and forty dollars and thirty-nine cents. The books of the bank in the hands of the assignee, showed, as did h's own bank book, that he was a debtor. It became necessary for him to establish the fact that the books did not show the true state of his accounts, and to do this he testified to the following facts: That on the last day of .Decern*67ber, 1883, Riddle, tbe president of the bank, told him that an auditing committee was to examine into the condition of the bank on the following day; and that, to swell the assets, he wished the appellant to draw checks in favor of the bank, amounting to seventy-seven thousand four hundred and twenty-five dollars. To balance this sum, he was to draw checks upon the bank in favor of the Central Bank, on which his checks given to the Penn Bank were drawn, for the same amount. This he did. The result of this transaction was to swell the assets at once, while the checks upon the Penn Bank would not appear upon the other side of the ledger until they were returned from the clearing house. Meantime, the audit would have been made, the committee deceived, the directors misled as to the actual condition of the bank, and lulled into a mistaken sense of security. He further testifies that the checks in favor of the bank were not credited to him, but that one of the checks drawn upon the bank, to balance up the transaction, was charged to him. This check he seeks to have credited or dropped out of his account, and, if this should be done, it would leave a balance of about thirty-three thousand dollars to his credit.
The auditor heard the evidence upon this subject at length, including the testimony of the assignee and an accountant, who had carefully examined the books of the bank, and all the means of information which the papers in the hands of the assignee afforded. He rejected the plaintiff’s claim for the following reasons:
First. If the position of the appellant was sustained by the .weight of the evidence, nevertheless, as the transaction was a fraud upon the directors and creditors of the bank, which he was compelled to set up, and through which he must claim, public policy was in his way.
Second. That as the account was stated in his bank book and thus brought to his attention in 1884, and he had made no effort to correct the mistake, and assert his claim upon the bank, until 1891, the statute had run against him.
Third. If both these positions failed, the auditor was not able to say as matter of fact that the check had been improperly charged, or that he had not received credits to balance it in his account with the bank.
*68These conclusions have been concurred in by the court below. The third is a finding of fact, which, unless shown to be plain error, must be regarded as conclusive of the whole case. The second is a conclusion of law that we think was well drawn, and which, if we grant for the present that the first conclusion may be doubtful, must nevertheless be conclusive against the appellant’s claim. The bank stated his account and delivered it to him. For more than six years he has acquiesced in its correctness. His right of action, assuming that he had one in May, 1884, is now lost by the lapse of time, and the auditor and the court below were right in denying his right to participate in the fund.
The judgment is affirmed.