Page:Federal Reporter, 1st Series, Volume 3.djvu/400

 WILSON V. NAT. BANK OF ROUiA. 393 �must be regarded in the same light ? It is very clear tnat a liability for violation of a penal statute is net a debt, within the terme of the law, and that is ail the claim there was in favorof the bankrupt atthe time of the adjudication inbank- ruptcy. As between the assignee and the bank is there such mutuality as the law requires ? Are there two debts in the same right? The assignee sues on behalf of ail the creditors, and the judgment recovered by him is assets in his hands for the payment, pro rata, of ail the debts of the estate. The afïairs of the bankrupt must be settled as of the date of his bankruptcy. If there was no right of set-off at that date there was none afterwards. �I am of the opinion that the "mutual debts" and "mutual credits" which may be set off under the act are such as ex- isted at the time that the bankruptcy proceedings were com- menced. It is expressly declared, in the section above quoted, that "no offset shall be allowed of a claim in its nature not provable against the estate." What claims are provable? This question is answered by the statute : "Ail debts due and payable from the bankrupt at the time of the commence- ment of the proceedings in bankruptcy * • * may be proved agatinst the estate of the bankrupt." Eev. St. § 5067. �And the same rule governs in determining what are assets of the bankrupt. These include "ail the estate, real and Per- sonal, of the petitioner; ail dehts due him, or any person for his use; ail his rights of action for property or estate;" and "any cause of action which he has against any person aris- ing from contract," etc.; but do not include any cause of action founded in tort. The "mutual debts," then, to which the statute refers, are debts in favor of and against the bank- rupt at the time of commencement of proceedings in bank- ruptcy. The judgment in question does not corne within this definition. To hold otherwise, would, as it seems to me, amount to a practical discharge of the bank from its liability for a violation of the usury law Its claim against the bankrupt'a estate is certainly not worth its face, and probably worth lit- tle or nothing. Let us suppose a case where the assets ar& exhausted, and the estate is worthless. If such is not th© ����