20 t;. AEEDERAL REPORTER-. . .
case were not entitled to their set-0H` as at law, because they had waived
it by voluntary payment, which is not the case here, the payment hav-
, ing been made under a mutual mistake of fact, as before stated. Hence,
standing alone, I should regard that case in favor of the equitable right
of sct·oft' in this case, which this court might allow by reason of its
jurisdiction to correct t-he mistake of fact upon which the parties pro-
ceeded, and which of itself would be a suiiicient foundation for the juris-
diction of a court of equity in granting any relief, either statutory or
equitable, to which the petitioner would be entitled. But in his letter
concurring in the opinion of Mr. District Judge SAGE, and in that opin-
ion itself announcing such concurrence, there seems to be some reliance
on a similarity between the two cases those learned judges havedecided
respectively.
The district judge in Armstrong v. Scott, supra, concedes, as I under-
stand it, that the insolvency of a debtor, under the general doctrine of
equitable set-ofl`, admits to the privilege of set—off debts that were not
i matured at the date of insolvency, and such. is unquestionably the
law, as shown by the citations; in the opinion, and I numerous. other au-
thorities cited in the briefs of counsel now before me. Ordinarily, of
course, a debt not due cannot be set oif against one.already..due and
immediately payable, for the obvious. reason that this would be to
` change the contract, and advance the day of payment. Thus, if the
-petit-ioner here had demanded-. payment by the bank of its deposit, pay-
able on call, the bank could not have said, ‘»‘ We have your notes which
will maturein the near future, and we will apply this deposit to their
payment;" but if the petitioner became insolvent the bank could clearly
claim that privilege as against other creditors, in any court of equity,
unless I greatlymisunderstand the authorities; and most certainly when
the conditions mentioned by Mr. Circuit Judge JACKSON, in Bang Co. v.
r Armstrong, supra., would exist. Wat. Set»Off, p. 149, §128, and numer-
cus cases cited in the briefs here, and in the Scott Case. On the other
· {hand, also, if one has a demand against another presently payable, and
that other has debts against him not yet due, and becomes insolvent, the
party presently indebted may equitably claim the-set-off uponthe paper
not yetdue in the hands of his insolvent creditor, or his assignee in in-
solvency. Id. p. 151, § 131, and cases cited in the briefs. ‘ This prin-
ciple arisesout of the fact of insolvency, ipsofacto, and iindsthe highest
developnient in all of our insolvency and bankruptcy statutes, particu-
larlyjthe late bankruptcy act of the United States,. where the; very best
judicialand legislative thought upon thissubject finds expression dn its
sprovisions and the decisions concerning the subjectof set-off, express
provision beingmade for a just. abatement of the amount in cases of
debts not due. Andit should be noted here that nolegislation anywhere
-upon·the subject. of insolvency has- so scrupulously preserved aud;.in—-
, sistedupon the most exact and perfect equality among creditors. _ Nor was
lit thought that the factthat by that act the United States, and the States,
.-respectively, and certain other preferred creditors, had given to them ‘
:ther privileges of preference-fortheir debts againstthe insolve¤t,.in any