· yl;8 _.; FEDERAL nnronrmn.  
l 1 Louis Smmuss’ Sous Co. iv. Anmsraoue.
, » r 4 n , (Wrcui! Oourt, S. D. Ofub. October 19, 1888.)
Bums Aim Bmxme—N.u·ro1ur. BAmzs—INsor.vnNcY-——AcrroNs—Snr4Orr.
On the failure of a national bank adepositor wasindebted to it on 11 notes to
the amount of $5,000, and had on deposit some $2,900. The receiver of the
bank agreed that this sum should go asa set·oE on the indebtedness, the de-
positor to pay the notes iirst coming due, and the deposit to be applied on the
ast-maturing notes. After paying the iirst two notes ·it `was found that the
others were in the hands of third parties, and the depositor was compelled to
pay them, and filed a bill to authorize the receiver to refund the mow paid
underamutual mistake. This bill washeard by thedistrictpudge ofthe estern
district of Tennessee sitting in the circuit court of the outhern district of
Ohio. Held, that the deposit should properly be set-of against the claim of
the bank, and the depositor should recover the sum paid by him; but as the
` district judge of the outhern district of Ohio had he d in an action between
· · the same bank and a creditor, the circuit judge concurring therein, that the
r plea of set-oi} was not avai1able,in order that there might not be different
rules of set-of in the same court, in the caseof thesame insolvent, and as the
case cannot be appealed, it will be remanded for reargument before the reg-
‘ nlar judges. who may in their discretion provide fora dissent of record, or‘ o
what may to them seem right in the premises. _ y
E 4 In Equity. l 4 J V
Jordan dc Jordan, for plaintiff. 4 _
  W. _B. Burnet and J. E. Bnwe, for defendant.
Hsmmonn, J  When the»Fidelity National Bank became insolvent,
;on. the 21st dayof J une, 1887, the defendant here, David Armstrong,
’ was appointed its receiver, on the 27th day of June, 1887, andytook pos-
` [session of its assets, as required by law, under the direction of the comp-
troller of the currency. ‘ Rev. St. U. S. § 5234; Act 1876, c. 156; 1 Supp.
.Rev. St. 216; ,19 St. 63. At that time the petitioner had to its credit
as a depositor the sum of $2,828.29, taking no notice of disputed items
4 arising out of protested drafts paid by the company, which were elim-
· .inated from this controversy by rulings made at the hearing., This bal-
aiance on depositarose.out of its daily dealings with the bank, at which
— .it kept an account, depositing from time to time both money and secu-
rities for collection on its account with the bank. It also at that date
,had procured discounts from the bank on 11 promissory notes for $5,000
· ° each, maturing at short dates from July to October next ensuing. The
4 petitioner and the receiver both believed that all these noteswere then
_ gheld. by the bank,_but in fact all but the two earliest, maturing July 23d
and July 29th, respectively, had been sent away, and used in the oper-
4, ations of the bank orlicials immediately preceding the failure, for which
some of them are now enduring imprisonment under criminal convictions
had in this court. The petitioner and the receiver agreed that the de-
posit should go as a set-off on this indebtedness, but at his request the
petitioner agreed to take the credit on the last of the notes, to fall due
in October, instead of the first, maturing July 23d, as aforesaid. Hence
the company paid to the receiver that note and the next, maturing July