Opinion by
Mb. Justice Brown,On November 9, 1900, John J. McCann drew to the order of Miles Bryan and delivered to him a cheek on the First National Bank of McKee’s' Rocks, Pennsylvania, for $956. The day following he gave Bryan another check on the same bank for $1,164.75. On that day Bryan, who was also a depositor in the bank on which the checks had been drawn, went to it and made a deposit of $2,357, composed of these two checks and other small checks and some cash. At the time he made this deposit the books of the bank showed a credit in favor of McCann of $3,276. The two cheeks which he had given to Bryan, amounting to $2,120.75, after having been passed to the latter’s credit as part *11of luis deposit of $2,357, were stamped “ paid ” by the bank. Part of the amount standing to the credit of McCann on the books of the bank was made up by his deposit of two checks drawn to his order by E. A. Meyers & Company. The first, dated November 9, 1900, for $1,527.35, was deposited the same or the following day, and the second, given November 10,1900, was for $861.70. After Bryan had received credit for the two checks McCann had given him, and which had been stamped “paid,” the bank learned that the checks of E. A. Meyers & Company to McCann, which had been deposited to his credit, were not paid by the Freehold Bank, on which they had been drawn, and they were subsequently returned, marked “no funds.” Bryan made his deposit and received the credit in his pass book on Saturday, and on the following Monday the bank charged the two McCann checks back to his account, returning them to him. Subsequently this suit was brought to recover from the bank the amount so withdrawn by it from appellee’s account, on the ground that, having given him credit for the two checks drawn by McCann on itself, with ample funds in its hands to meet them, according to its own books, when they were presented, it had made practically a cash payment to him, which it could not recall without his consent. The trial judge entertained this view, and, in an adequate charge, submitted to the jury, as the only question for their determination, whether the plaintiff had agreed that the money represented by the McCann checks should bo charged back to his account. The jury found that he had not so agreed, and the verdict was in his favor for the amount claimed.
When the bank gave to Bryan, one of its depositors, credit on his pass book for the two checks drawn on it by another of its depositors, having on its books ample funds to pay them, such credit was equivalent to a payment to Bryan in cash of the amount of the checks. This has never been questioned with us from the time it was first decided in Levy v. Bank of the United States, 4 Dall. 234, and 1 Binn. 27, and it cannot be pretended that, if an actual cash payment had been made to Bryan by the bank, there could be a recovery back from him, if unwilling to pay it.
The two legal positions taken by the defendant, which the court below refused to sustain, were, first, that the court *12ought not to have admitted in evidence the two checks drawn by McCann in favor of Bryan, because they had not been stamped as required by the act of congress; and, second that the defendant ought to have been allowed to prove that these checks “ were given in a gambling transaction, commonly known as a ‘ bucket shop ’ business, and conducted by E. A. Meyers & Company, with John J. McCann as an interested party therein, with full knowledge of the plaintiff in this case, who dealt with McCann, and through him with Meyers & Company in carrying on that bucket shop business contrary to public policy.”
As to the first position, appellant seems to overlook the fact' that this suit is not on the checks. The plaintiff could not sue on them. As a holder of checks on a bank, drawn by one having funds in it to meet them, he could not sue it: Saylor v. Bushong, 100 Pa. 23; First National Bank of Northumberland v. McMichael, 106 Pa. 460; First National Bank v. Shoemaker, 117 Pa. 94; Maginn v. Dollar Savings Bank, 131 Pa. 362.
The plaintiff sues to recover money which the bank had paid him by depositing it to his credit and then took from him without his consent. This is the substance of his averment in his statement. The checks were not offered in evidence as the basis of his claim, or as instruments upon which he had sued. His ease whs complete without them, for his pass book showed the credit given him by the bank. Knowing that the drawer of these unstamped checks had, according to its own books, money in its hands to pay them, it received them as money from Bryan and gave him credit for them. Instead of complaining of them now as not having been stamped, it ought to have refused to pay them when presented, for that was its duty under a penalty ; but it paid them. The act of congress Was intended for no such case. It did not prohibit the offer in evidence of unstamped checks as such. These were offered, not to establish and sustain the plaintiff’s claim, for, as stated, it had been established by the bank’s entry in his pass book of so much cash deposited by him and withdrawn by the bank without his. consent. The prohibition of the act of congress was upon the offer of checks as evidence when relied upon as valid instruments for the purpose for which they were drawn, *13and was not that it could not be shown what use had been made of them by parties against whom they could not be enforced by the holders. If, as in this case, the bank saw fit to pay unstamped checks, the act of congress never intended that it could say the checks had not been paid and that the money represented by them was still in its hands, because the checks had not been stamped. In Chartiers and Robinson Turnpike Company v. McNamara, 72 Pa. 278, the instrument rejected by the court, because it had not been stamped in accordance with the act of congress, was one upon which the defendant relied as the real contract between him and the plaintiff. In other words, it was the instrument upon which its defense depended ; such is not the case here.
The checks given by McCann may have been drawn in settlement of marginal deals, but he did not say they should not be paid. He gave them, intending that they should be paid, and the bank upon which they were drawn would now become the quickener of Ins unwilling conscience for the purpose of saving itself from the consequences of what may have been its own mistake in giving him credit for the checks of E. A. Meyers & Company. Even the ordinary gambler is not required to get the permission of the bank with which he keeps, his account to withdraw his money to pay his gambling debts, regarded by him, as a rule, as obligations of honor. This is about the position of the appellant as we understand it and as the court below must have understood it.
Judgment affirmed.