Mr. Justice Trunkey
delivered the opinion of the court,
WThether error was committed in any ruling against the defendants is a question they have not brought here, and cannot now be considered.
It can scarcely be said that the court did not fairly and properly treat the cáse as if it were conceded by the parties that the judgment was owned by the Second Notional Bank of Scranton, incorporated and doing business under the laws of the United States. If this was error, we fail to see any reason why the bank should complain. The judgment was confessed by virtue of a warrant of attorney on a note payable to “ W. W. Winton, president, or bearer,” and he stands as plaintiff with the words, “ President of the Second National Bank of Scranton” appended to his name. If they mean nothing, he alone is the plaintiff in interest, and they may be treated as surplusage. Putting them on the record did not impose the burden of proving what they meant upon the defendants. In absence of evidence or concession of a corporation, the judgment was Winton’s, and inquiry respecting his authority to release its lien on real estate, or of the right of a national bank to take a judgment to secure future advances, would be impertinent. A glance at the case as presented, shows that, in fact, it was tried on the theory that the note was given for money of the bank of which Winton was president, and, therefore, the assignments will be considered as if the bank has a right to be heard in their support, notwithstanding its point that there is no evidence of its incorporation.
This judgment was entered in favor of Winton on a note taken in his name in 1872. An execution was issued in 1876, and on defendant’s application, the writ was stayed and judgment opened. The trial was in April 1879. During all that time the directors of the bank knew, or ought to have known, that the judgment appeared in favor of Winton, and not the bank, and no move was made to put it in the bank’s name. In 1874 Winton gave a release of lien to enable the principal debtor to sell and convey a part of his land. Winton negotiated the loan and did all business respecting it. Why did the directors suffer the judgment to stand in his name, if they had not given him authority to take it ? If no such authority was given, what was the long acquiescence but a ratification ? Though the appended words be sufficient notice of the claim of the bank, it would be commonly understood that it was put in Winton’s name for the very purpose that he could control it as his own. The bank had a legal existence, and was capable of acting, suing and receipting in its own name. If it chose to put the judgment in name of another, it ought to be bound by his acts with others in dealing with it. There was no conspiracy to defraud the bank between Winton and the purchaser of the land, and if by the agent’s mistaken judgment any mast suffer, the loss should fall on the one that gave him power to act. It may be true, as alleged, that the release does not purport to be the release of the bank ; but it purports to be the release of the party to whom the note was payable and who held the judgment. We are not convinced that error was committed in the rulings and instructions set forth in the second, sixth, seventh, eighth, eleventh, twelfth and thirteenth assignments.
The depositions of Mary Little and H. P. Little stood as if they had just been taken and offered in evidence, no notice having been given, as provided by the rule of court, of the filing. When offered, the plaintiff objected “on the ground that there is no proper certificate; it does not recite that they were reduced to writing by the justice, nor that they were subscribed in his presence by the parties.” Here he is confined to the objection taken in the court below. The depositions were taken in obedience to a rule of court, in presenceof the parties, the witnesses cross-examined, and we do not think the certificate fatally defective. In such case, it is presumed that the depositions were properly reduced to writing and subscribed by the witnesses in presence of the justice until the contrary is shown. No objection was made that H. P. Little had not signed his deposition. The third assignment is not sustained.
As a proposition the plaintiffs’ ninth point should have been affirmed, unless refused on the ground that there was no evidence of the fact on which it was based. The answer indicates that the fact was submitted. Mere forbearance, however prejudicial to the surety, will not discharge him. This rule applies where a creditor suffers a judgment to lose its lien for want of revival against the principal debtor, and thereby subsequent creditors are enabled to take the land: United States v. Simpson, 3 P. & W. 437. The fourteenth assignment is well taken.
On the authority of the Union Nat. Bank of St. Louis v. Matthews, 8 Otto 621, the instructions complained of in the fourth, fifth, ninth, tenth and sixteenth assignments, were erroneous. That case has settled that real estate security taken by a national bank for present or future advances is valid, and all conflicting decisions in the state courts must give way. It is there said, “ Our attention has been called to but a single point which requires consideration, and that is whether the deed of trust can be enforced for the benefit of the bank.” After noting that the Supreme Court of Missouri held the deed of trust to be the same thing as a mortgage, and that the loan was made on real estate security, it is held, “ These things render it proper to consider the case in that aspect, and conceding them to be as claimed, the consequences insisted on by no means necessarily follow. The statute does not declare such security void ; it is silent upon the subject. If Congress so meant it would have been easy to say so, and it is hardly to be believed that this would not have been done instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. * * * The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other, contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly usurp this function of the government.” Justice Miller dissented, on the ground that the Act of Congress forbade national banks to take real estate security for money loaned at the time of the transaction, and that such security is void in the hands of the bank.
The point arises under a statute of the United States, and having been decided by the United States Supreme Court, the prior rulings of this court, so far as in conflict, fall.
Judgment reversed, and a venire facias de novo awarded.