Page:Federal Reporter, 1st Series, Volume 3.djvu/399

 392 PEDEBAL EEPOETEB. �time after the commencement of the bankruptey proceedings. Thereupon the defendant petitioned the district court for an order directing that the said sum of $620, the amount of eaid judgment, be applied as a credit or offset upon its claims •igainst the estate. The district court granted the prayer of «lefendant's petition, and ordered the offset to be made accord- ingly. The present bill is brought to set aside this order as erroneous. �1. I am of opinion that this proceeding is properly insti- tnted under the provisions of section 4986 of the Eevised Statutes of the United States, which gives to the circuit court general superintendenoe and jurisdiction of ail cases and questions arising in the district court when sitting as a court in bankruptey. �3. The ôase upon the merits must turn upon the construc- tion of section 5073 of the Eevised Statutes, which is as fol- lows : �"Section 5073. In ail cases of mutual debts or mutual credits between the parties the account between them shall be stated, and one debt set off against the other, and the bal- ance only shall be allowed or paid; but no set-off shall be allowed in favor of any debtor to the bankrupt of a claim in its nature not provable against the estate, or of a claim pur- chased by or transferred to him after the filing of the peti- tion." �The defendant bank held an unsecured claim, duly proved, against the estate of the bankrupt, and the asssignee of the bankrupt held a judgment against the defendant bank for $620, for penalty incurred by the violation of the statute against usury. Were these "mutual debts" within the mean- ing of the statute? In order to make a proper case for set-off, under the statute, the debts must be mutual; must be in the same right, Saivyer v. Hoag, 17 Wall. 610, 622. If it be con- ceded that a judgment for this penalty, recovered by the bank- rupt before his bankruptey, would have been a debt, within the meaning of the statute, which could bave been set off against the balance due on the bank's claim, does it foUow that a judgment obtained by the assignee after the bankruptey ����