Lotus SNYDERS’ sons co. ILARMSTRONG. 19 l
29th; and.to~its¤surp1·ise, and thatof the receiver, the subsequently ma-
turing notes, nine in number, were found afterwardsto be in the hands
of outside holders, and the petitioner was compelled to pay them accord-
ingly. The agreement as to the set—off could not therefore be perfected
according to theiintention of the parties, and this petition was Bled to
compel, or rather to authorize, the receiver to reinstate the petitioner by
refunding to it the money paid under this mutual mistake of fact.
That the petitioner is entitled to this relief,'if it be entitled to a set—oEf _
at all, there can be no kind of doubt. It is obvious, however, that the
receiver, being a fiduciary agent, and a 1nere instrumentality for the ad-
ministration of the assets,-under the provisions of the law in that behalf
cannot by his agreement add anything to the rights of petitioner in the
matter of the set-off, which must be determined solely upon the legal right
of the parties in the premises, and as if the receiver were suing at law
upon the first of the notes, and the petitioner had pleaded the ,,balance
due it by way of set-oil`. If that plea would have availed, then well may
the company claim here that the receiver shall be directed to refund to
it the money and interest by a judgment to that effect, thereby correct—
ing the mutual mistake of fact; or, if it has any standing in a court of
equity, then according to the principles governing that court.
At the argument I had a very decided conviction that the claim of set—
off should prevail, but being informed that another case involving the
assetsof this same insolvent bank was pending before the regular dis-
trict judge, and wishing to befurther advised, I have held this case, until
now there has been filed the opinion of that learned judge, concurred in
by the circuit judge, that the plea of set-off was not available, under the
circumstances of that case. Armstrong v. Scott, 36 Fed. Rep. 63. The
opinion cites also the earlier decision of the learned circuit judge in the
case of Bang O0. v. Armstrong, 34 Fed. Rep. 94. The latter case, as re-
ported, does not disclose the nature of the cross·demands which were
asked torbe’set off in that case, and they were presumably not deposits,
since as it seems to me that that class of debts due from the bank would
not be of the character described in the opinion as wanting in that qual-
ity of mutuality which promotes the operation of the equitable doctrine
of set-oil', as contradistinguished from the right of set-offas at law, under
the force of the statutes made in that behalf; `for I can imagine no class
of counter-claims where, to use the language of the learned circuitjudge,
"there has been mutual trust or understanding that an existing debt
should be discharged by a credit given upon the ground of such debt,"
or "a knowledge on both sides of an existingdebt due to one party,
and a credit bythe other party founded on and trusting to such debt as
a means of discharging it," more clearly exhibited than in that class aris-
ing out ofthe dealings between a banker and his depositor. The peti-
tioner here, who deposited the notes, bills, and other securities for collec-
tion on its-account in this bank, surely expected to discharge whatever
discounts it received by drawing upon that account; and all that mutual
knowledge, trust, or understanding described by the circuit judgecer·
taihly existsiin such a case, if it ever exists'atall·;v The creditors in that