George Sutherland

“ Even if there were a conflict between the decisions of the state and those of the lower federal courts, we should be free to apply the 'harmony' rule and follow the state decisions. We are, however, unable to find any such conflict.
The case which seems most nearly in point is Roelker v. Bromley-Shepard Co. (C.C.A.) 73 F.2d 618; and that case, so far as it goes, is in harmony with the Pennsylvania rule. There, the company was indebted to the Middle sex National Bank in the sum of $5,000 on a joint note signed by the company and Sarah Bromley Shepard. ”

“ This is a suit brought by respondents in a federal district court in Pennsylvania seeking to have allowed as a set-off against the indebtedness of the partnership firm of Swinger and Binenstock to the Commercial National Bank the amount of a deposit in the bank by Swinger, now deceased, and so much of a deposit by Binenstock as might be necessary to cancel the indebtedness. The bank was organized under the National Bank Act of the United States (12 U.S.C.A. § 21 et seq.) , and as such was engaged in business in Pennsylvania. ”

“ Second. We have no occasion to consider whether section 721 of the Revised Statutes (28 U.S.C. § 725, 28 U.S.C.A. § 725) is applicable. Under Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, it would not be. That case has been much criticized, and the tendency of our decisions which have followed has been to limit it somewhat strictly. ”