‘ mms SNYDEBS’ sons oo. v. Anusrnom. 23
mand_I should hesitate to give to these provisions so formidable an effect
as to nullify all the equities, and all statutory rights or remedies pertain-
ing to insolvency prevailing in the states merely to exaggerate the eq-
uity of equality among creditors, which is, as I have shown, held else-
where and generally to be subordinate to and not paramountto the eq-
uity _of set-off in insolvency; It is my judgment that congress intends
to leave this subject of set-off in insolvency administration to be regu-
lated by the law of each state, statutory and general, so that the rules of
insolvency should be as far as possible uniform in these cases with like
insolvencies in that state, and that both the statutory and general law of
set-off prevails in each state, unless it may be that in analogy to our gen-
eral equity system the law of equitable set-off should be held to be uni-
form in all the states, and the law of legal set—oEf be regulated under the
practice conformity act according to the procedure in each state; for it ,
seems to be rather a matter of remedy than property right, though it is
very closettothe line, I should think, of that class of rights which are
protected as property because they are in the nature of a trust that at-
taches by insolvency to the assets for a just distribution of them accord-
ing to the recognized principles of the law of insolvency,.everywhereepre-
vailing; like, for example, the trusts relating to decedent’s estates. At
all events I should not hold our act of congress to have abrogated so im-
.,porta1it—a principle of the administration of insolvent estates as the right
of set-oft', except upon the most explicit declaration to that effect, or the
,most imperative implication arising out of the necessities of construction
that were equal to explicit enactment. I have not overlooked the posi-
‘tion taken by counsel for the defendant, and the cases cited for it that
treat the transaction as if it were an assignment of the undue notes to a
stranger for value. The receiver is, in my judgment, under the acts of
congress, onlyan insolvency assignee, representing in his relation to the
depositors, on the subject of set-off, the bank itself. j
But what should be done with this case, entertaining such a difference
of opinion as that indicated? Unless the judges are very careful, we
should, under the very absurd judicial system, which we have, be led
into many perplexities and frequent injustice by such differences.
Clearly, we are not technically bound to follow each other in a line of
precedents as authority, and yetijust as clearly we must be careful not to V
confuse. our judicial administration by unnecessary departure in judg-
ment; andthe statutory provision for certifying dissents has afforded re-
lief against said departures in many instances, but this is not always ‘
available, as it is not here, in the present attitude of this case. But it
would be intolerable to have differing rules of set-off in the same court,
’ _’and in the same insolvent estate or bank; so if I were compelled to de-
cide this case one way or the other, I should unquestionably yield my
judgment to that of my brethren, and rule as they have ruled, for con- e
for1nity’s sake. But that case may go to the supreme court, while this
cannot, and manifestly thatwould be unjust to this petitioner. Applica-
tion has been made to meby letter to withhold judgment, if I should
f` feel bound to rule as my brethren had ruled, and to permit petitioner to