FEDERAL nmronrms. i ~
or whether the ruling as to the Ohio statute be correct or not, I shall not
here undertake to determine, because, comparatively with those learned
judges, I ami a stranger to the local laws of Ohio, and they can best de-
cide them: I may properly say, however, and the parties are entitled
to this expression of my opinion, that the petitioneris, in my judgment,
entitled upon the general equity law to this set-ofi`, unless the principle of
that opinion hasdeprived it of it. That principle I understand to be _
t V ` this: that, notwithstanding this general equitable doctrine of setroff in
‘ insolventestates, the acts of congress in relation to insolvent national
banks have abrogated it, and, the statutes of Ohio not-providing for it,
but only providing for set-off where both debts are due, the set-off can-
not be allowed. But I do not understand it to be decided that the gen- .
eral equitable doctrine does not prevail. in Ohio; and, on the contrary,
I understand that it does, and would be enforced but for the acts of con-
gress in relation to national banks.
I regret exceedingly that I have been unable to reach the same con-
clusion as to the etlect of the acts of congress, and that I cannot dispose
` of this case by giving judgment in accordance with the opinion of my
learned brethren, for whose opinions I have unqualied respect. It
seems to me that congress has the same power in providing a system of
insolvency for the national banks to abrogate the statute of Ohio permit-
ting atset-ot? where the two debts are duo as it has to abrogate the gen-
eral equitable law of set-off and insolvency where one of them is not yet r
mature, and that by the same implications the one is abrogated, if the
other has been; wherefore, inasmuch as to allow a set-off under the stat-
_ ute between debts both of which are due would disturb that equality
among creditors established by the act, and which belongs to all systems
of insolvency, quite as effectually as to allow it in the case of a debt not
due, both must go if the implication be well founded, and surely con- ‘
gress did not intend that effect. If it be said that the statutory right of set-
off is protected, and its benefits secured, I can only ask by what words of
this act of congress has it been done, or by what other act, any more than
the general equitable right or remedy has been so secured`? The national
banking acts do not say anything specifically concerning the right or
remedy of set—of·l' anywhere, and congress has not, as in the bankruptcy
acts, legislated upon the subject in these acts relating to national banks.
Neither are they a complete and perfect system of insolvency like the
bankruptcy act, or like our state systems of insolvency, respectively, leg-
islatively declaring and denning the principles of insolvency that shall
prevail in winding up the banks. Certain peculiar machinery is pro- ’
vided for winding them up, and some leading provisions are made, such
as that note holders and deficiencies due the government shall be pre-
ferred claims, and transfers or assignments after the act of insolvency, or
in contemplation thereof, shall be prohibited and avoided. Rev. St. §§
5236, 5242. But it does seem to me astraining of these provisions to
_ imply from them an intention to abrogate all the laws of set-off, legal)
andequitable, or any part of them. It does not seem to me a necessary im- A
plication from the language used; and without express legislative com-