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Commonwealth v. Lena Miedl. second marriage, if there was no cohabitation, it will be the duty of the Court to instruct the jury to acquit the defendant. That question can be raised and the defendant can have the full benefit of it on the trial.

It appears that the complaint was made by Otto Miedl. The defendant contends that a complaint by him will not support such an indictment. In Commonwealth v. Eberly, 22 LANC. Law Review 70, this Court, following Commonwealth v. Barr, 25 Sup. 609, held that an indictment should not be quashed because the husband of the woman with whom the defendant was alleged to have committed adultery made the complaint and testified before the Grand Jury. In Commonwealth v. McNew, 31 Lanc. Law Review 85, we again discussed the same proposition, and held that "an indictment for adultery will not be quashed on motion because the information was made by the husband of the defendant,” when this question was not raised on a proceeding for discharge, but after the indictment was found. In Com monwealth v. Mozart, 30 LANC. Law Review 147, we modified our conclusion in Commonwealth v. Eberly, and held that a wife could not make an information against her husband for adultery. The question in that case was properly raised on habeas corpus before an indictment was found by the Grand Jury. The situation here is different. The defendant did not sue out such a writ, and has filed, not even a motion to quash, but a demurrer. This necessarily only goes to such defects as are apparent on the face of the indictment, and nothing more, and the indictment on its face, we think, is sustainable.

We, therefore, now overrule the demurrer.
Demurrer overruled.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Joseph Loose. Indictment for giving bad check Time of giving Reduction of de

posit by overdraft and other check Banking Act of April 18. 1919, P. L. 70.

On the trial of an indictment under the Act of April 18, 1919, P. L. 70, for giving a check without sufficient funds to pay it, it is no defense that the defendant is justified in refusing to pay the check because the automobile which he obtained from the prosecutor was not as represented.

A bank has a right to charge up against an overdraft a deposit subsequently made.

On indictment for giving a check without sufficient funds a new trial will be granted, where it appears that another check had been given to another party by the defendant on the same day and presented and paid that day, but the time was not shown, and the question was not clearly submitted to the jury as to whether the defendant's balance had been reduced by it or not at the time when he gave the check to the prosecutor.

Indictment for giving check without sufficient funds. Rule for a new trial. November Sessions, 1920, No. 46.

Commonwealth v. Joseph Loose.
B. F. Davis, for rule.

John A. Nauman and I'm. C. Rehm, District Attorney, contra.
January 15, 1921. Opinion by HASSLER, J.

The defendant was tried and convicted on an indictment charging him with having drawn and delivered a check without having sufficient funds in the bank, upon which it was drawn, to pay it, with intent to defraud the payee named in it. The indictment is under the Act of April 18, 1919, P. L. 70. The first section of this Act provides that any one who shall make or draw or utter or deliver a check, or order for the payment of money, upon any bank, knowing at the time that he has not sufficient funds in, or credit with, such bank, for the payment of same, shall be guilty of a misdemeanor. The third section provides that the refusal of the bank to pay the check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, the bank upon which the check is drawn, unless he shall have paid the drawee thereof the amount due therein, together with interest and protest fees, within ten days after receiving notice that such check has not been paid by the drawee.

It was proven on the trial that on August 30, 1920, the defendant gave to Morris Rossman, the prosecutor, a check on the Farmers National Bank of Lititz for $87.00 in payment of goods purchased at that time, and for a difference due said Rossman in the exchange of an automobile made at that time. The check was at once deposited in the Gap National Bank and presented to the Lititz Bank on September 2, 1920, when it was protested, as defendant had $6.82 on deposit in that bank at that time. It was also shown that on the morning of August 30, 1920, the defendant deposited $130.00 'to his account in the Lititz Bank, and that his account was overdrawn $20.00, so that his balance when he made this deposit was $110.00. Later in the day his check for $35.00 was presented to the bank and paid, which reduced his balance to $75.00, or less than the check given to the prosecutor in this case. On September 1, 1920, he drew out $68.22. It was shown that the bank closed at three o'clock on August 30, 1920. The prosecutor testified that the check was given to him at three or four o'clock in the afternoon. If this is true the defendant would not have had sufficient money in bank to meet the check given to Rossman at the time he gave it, and would have been guilty of the misdemeanor of which he was charged. He did not pay to the prosecutor the amount of the check with interest and protest fees within ten days after he obtained knowledge that the check had been protested.

The defendant and another witness testified that the check was given earlier in the day, one of them said about noon and the other about one o'clock. It does not appear at what hour the check for $35.00 was paid by the Lititz Bank. If it did not reach the bank until after the check was given to Morris Rossman by the defendant, then there were sufficient funds in the bank to meet the check given to Rossman at the time it was given, and the defendant would not have com

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Commonwealth v. Joseph Loose. mitted the offense charged in the indictment. This question was not clearly submitted to the jury, and we are of the opinion that the defendant should be granted a new trial. We, therefore, make absolute the rule to show cause why a new trial should not be granted.

There is no merit in the contention of the defendant that he is justified in refusing to pay the check because the automobile which he obtained from the prosecutor was not as represented. We refused to permit any such defense at the trial, and are satisfied that in doing so we committed no error. It is not a question of bargaining between these two parties, but the sole question is whether the defendant gave a check upon a bank at a time when he did not have sufficient funds or credit to meet it.

Upon the argument of this rule the defendant raised another question, which is that the bank had no right to charge against the account of the defendant the amount of his overdraft when he made the deposit of $130.00 on the 30th of August, 1920. There is no merit in this contention.

Bank 1. Mason, 95 Pa. 113, one of the cases cited in support of this position, only decides that a bank has no right to allege that money deposited by one person belongs to another. Dick's Estate, 183 Pa. 647, another case cited in support of his position, does not sustain it. There the only question was whether a trustee, who was a private banker, could be compelled to account for profits made with the money of the bank, when part of that money were the trust funds deposited in the bank. In Bowles on the Modern Law of Banking, vol. 1, page 200, it is said: “Any deposit received from a check subsequent to an overdraft may be applied in payment of the overdraft, for there is a strong presumption that he intends to have it thus applied." In Farmers National Bank of West Chester ?'. Marshall, 9 Sup. 621, it is decided that an overdraft would be in exactly the same position as a note which had become due and which the bank had every right to charge up against the maker's deposit, and as far as any endorsers are concerned. would be bound to charge against the deposit of the maker. In Owens V. Stape, 39 Ill. (Appeals) 653, it is said, " The drawing of a check by a depositor in a sum greater than the amount which he had on deposit in itself implies a promise on the part of the depositor to re-pay to the bank the amount by which the account is overdrawn." In Nicols 2. Stape, 46 Nebraska 715, it is decided that a deposit made subsequent to an overdraft is presumed, in the absence of evidence to the contrary, to be intended to apply towards the payment of the overdraft.

We are satisfied that none of the objections raised by the defendant point out any error that would justify a new trial, but, as we have saidą being of the opinion that there is a question whether at the time the check was given by the defendant to the prosecutor he had sufficient money in bank to pay it, we will make absolute the rule for a new trial.

Rule made absolute.

FEB 9

1922

INDEX

PAGE

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48

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143

202

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PAGR
ABORTION: See CRIMINAL LAW.

1903, April 3, service on corporations. 53
ACCOUNTS: See DECEDENTS' ESTATES ; "in April 6, proceedings to quiet title 420
EQUITY; ERRORS AND APPEALS;

April 22, fraudulent conveyance 501
PARTNERSHIP.

June 4, insolvency

15
Notice. - Proper advertising notice to

1905, April 14, line fences

142
all parties. Marshall's Estate 245

April 17, telephone poles...... 256
ACTS OF ASSEMBLY.

April 22, trial practice
Title.-Need not be index of contents.

1907, May 29, appeals from magis-
Com. v. Esbenshade

181
trates

328
Statute of 22 and 23 Charles II.
Costs

463
1911, May 11, roads

476
May 18, School Code

495
1775, March 18, recording
535

181
1779, April 3, replevin

May 31, highways

428
1794, April 22, recovery of bet

85

June 3, state fire marshal 585
1798, Feb. 27, production of papers.. 446

June 7, wills

329

264
1815, March 13, divorce

June 8, corporations
345

1913, March 27, married women
148

113
1833, April 8, intestacy
April 8, devises of real estate.. 253

July 7, motor vehicles

91
1836, March 11, interpleader

485
July 26, telephone poles

256
June 13, township supervisors.. 368 1915, March 13, divorce

557
June 16, unincorporated associa-

March 26, Uniform Partnership
tions

245
Act

297
June 16, mechanics' lien

454
April 22, corporations

263
1842, March 11, line fences

May 14, boroughs, 263, 269, 274, 317,
1851, April 3, boroughs

270

339, 442, 481, 505, 517, 523, 537,
1852, May 4, amendment

84

547, 550, 569
1853, April 18, Price Act

435

May 14, Practice Act. 31, 78, 137,
1855, April 26, wills

329

157, 219, 244
April 27, estates in tail

May 19, Sales Act

381
1856, April 17, practice

544

June 1, maintenance of insane.. 249
April 22, boroughs

270

June 2, Workmen's Compensa-
1859, April 6, service of bill in equity.

tion

84
340, 511

1917, May 18, fraudulent conversion.. 13
1860, March 31, criminal law

425
June 7, Revised Price Act

435
March 31, criminal procedure. . 585

June 7, Wills Act

329
1863, Dec. 14, landlord and tenant... 571

June 7, Intestacy Act

148
1867, April 9, school law

561
1868, March 2, justices of the peace.. 328

June 7, Orphans' Court Act

29
June 7, Fiduciaries Act

.69, 99
1874, April 22, corporations

353

June 28, fictitious name... .48, 442,
1876, April 26, unincorporated asso-
ciations

477, 491

244
1887, April 13, standard time

498
July 14, townships

840
May 18, mechanics' lien

454

July 16, township supervisors .. 368
May 24, widow's exemption

1919, May 8, liquor law

..129, 198, 208
1889, May 9, charitable use

329
June 8, roads

475
1891, May 26, charitable use

329
June 20, motor vehicles

481
1893, April 6, beneficial societies 64

June 20, service on corporations
May 18, medical practice
182

64, 280
June 8, married women 113, 359

June 26, liquor law

129
June 10, proceedings to quiet title 420

June 30, motor vehicles . 504, 547
1895, June 24, tenants in common

July 1, State Police

585
June 25, service on corporations

July 8, bridges

367
64, 279 ACTS OF CONGRESS.
1897, May 19, appeals

271
May 26, 1790.

Record of court pro
June 23, township supervisors .. 368

ceedings

469
1901, April 19, replevin ..351, 424, 428

Sept. 26, 1918. Federal Reserve ....
June 4, insolvency

539
421
June 4, mechanics' liens 451 ADMINISTRATOR: See DECEDENTS'
July 9, service on corporations.. 53

ESTATES.
( 597)

• • • • • •

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II2

II

148

PAGE
AFFIDAVIT OF DEFENSE: See

making them by the government
PRACTICE (C. P.); REPLEVIN.

King v. Adams

315
Contract of sale - Rescission by ven-

General denials.-Sufficient as to other
dor. - In a suit for damages for

paragraph of statement, where an-
failure to ship goods ordered, affi-

swer to one fully explains all. At-
davit of defense insufficient which

lantic Motor Truck Co. v. Kachel.. 423
gives reasons for delay but fails to Sufficiency. – Affidavit must set forth
deny allegation in statement that

all facts necessary to make defense
defendant had rescinded sale. Clif-

good. S. K. Bitner & Co. 9. Wariel. 43
ton Forge Milling & Feed Co. v. Same - Price. — In suit for price of
Eby

121 candy sold, affidavit insuficient
Sale, Affidavit sufficient in suit for

which avers story set up by plain-
price which avers proof of title as

tiff's agent to induce sale without
condition of payment not complied

alleging that it was untrue. S. K.
with. Bitner v. Sohl

Bitner & Co. v. Warsel

443
Denial of averments in statement.- Freight charges - Agency.

In soit
Affidavit must deny absolutely and

for, affidavit insufficient which avers
not “ for the purpose of this affi-

defendants not real shippers but
davit." Warfel v. Burkholder .... 170 acted as agents for third party,
Mutual mistake of law. — In suit on

Payne v. A. Rubin & Co.

528
check, affidavit insufficient which Set-off and disputed facts. When
avers that it was given under a

sufficient in affidavit to take case to
mutual mistake as to defendant's

jury. Frey v. Hoffman

562
liability on a farm contract. War-

AGENCY. See AFFIDAVIT OF DEFENSE;
fel v. Burkholder

173

CONTRACT ; REAL ESTATE ; SALE.
Building contract.-In action for con-

sideration, affidavit sufficient which AGREEMENT: See CONTRACT.
avers that the price is not due until ALDERMAN: See JUSTICES OF THE

completed. Seiple v. Sheaffer 175 PEACE.
Sale for freight-Resale.-In suit to

AMENDMENT: See EQUITY; JUDG-
recover amount paid for goods ac-

MENT; REPLEVIN.
cepted by plaintiff after refusal by

APPEALS: See ERRORS AND APPEALS.
first consignee and which were sub-
sequently sold for freight, affidavit ASSAULT: See CRIMINAL LAW.
sufficient which avers earlier sale ASSIGNMENT FOR CREDITORS:
and non-divestment of title of plain-

See INSOLVENCY.
tiff_prior to payment. N. Y. & N.

AUTOMOBILES: See MoTOR VEHICLES.
J. Produce Co. v. Burkholder 205
Note Time of payment. — Affidavit

BANKRUPTCY: See CRIMINAL LAW.
sufficient which avers that when note BANKS AND BANKING: See Crix-
given it was agreed that it need not

INAL LAW; GIFT; PROMISSORY NOTE.
be paid until a certain happening, Alteration. — Change of bank where
of which agreement holder had no-

payable voids note unless with as-
tice. Russel v. Groff

212 sent of party liable. Kauffman 0.
Information and belief.-Averment of

Wright

355
facts on must also allege expecta-

Trusts.—Banks acting as trustee under
tion to prove. Mendenhall, Admr.,

amendment to Federal Reserve Act
v. Jackson, Admr.

241 not approved by O. C. of Philadel-
Wages. When affidavit sufficient in

phia County. In re Germantown
suit for wages which denies terms

and Southwark Banks

339
stated and sets up a different basis

Deposit Overdrajt.
of computation but does not deny

charge up overdraft against deposit.
separate paragraphs of statement.

Com. v. Loose
Eckert v. Berkenbine

259 BENEFICIAL ASSOCIATION: See
Foreign corporation. - Court will not

UNINCORPORATED BENEVOLENT SOCI-
enter judgment on affidavit averring

ETIES.
as matter of law that statement does
not show plaintiff authorized to do

BIGAMY: See CRIMINAL LAW.
business in Pa. Ritter Lumber Co.

BOND: See SURETYSHIP.
v. P. R. R. Co.

263 BOROUGHS: See ROADS, STREETS AND
Sale-Failure to deliver.-In suit for

HIGHWAYS.
failure to deliver goods sold to Electric poles - Tax. - Tax only for
plaintiff affidavit sufficient which

cost of inspection; where no inspec-
avers that party from whom vendor

tion, no tax; tax fixed at 250. per
ordered goods was prevented from

pole. Marietta v. Columbia Tel. Co. 255

Bank may

504

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