Scammon v. Kimball

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The complainant, a private banker in Chicago, held several policies of insurance issued to him by the Mutual Security Insurance Company, of which he was a director.

The company was duly adjudicated a bankrupt. At the time of such adjudication, it had money deposited with him on call, drawing interest, and held his notes for unpaid subscriptions to its capital stock.

The question arising in the case and determined by the court below was, whether the amount due from the company on said policies of insurance on account of losses he had sustained by fire could be set off against said notes, and the money deposited.

In view of the decision in Sawyer v. Hoag, Assignee, 17 Wall. 610, by this court, the complainant's right to set off his claim against the company, so far as the notes in question are concerned, was abandoned in the argument.

''Mr. Matt. H. Carpenter'' for the appellant.

1. The complainant is clearly entitled to the set-off. The Bankrupt Act, sect. 20; Tucker v. Oxley, 5 Cranch, 34; Holbrook v. ''Receivers of the American Fire Ins. Co., 6 Paige, 220; Ex parte Globe Fire Ins. Co.'', 2 Edw. Ch. 625; Gray v. Rollo, 18 Wall. 629; Drake v. Rollo, 3 Biss. 274; Olive v. Smith, 5 Taunt. 56; Young. v. Bank of Bengal, 1 Deac. 622; Jones v. Robinson, 26 Barb. 310; Berry v. Brett, 6 Bosw. 627; Bize v. Dickason, 1 T. R. 285; Ginn v. Dubois, id. 112; Osgood v. De Groot, 36 N. Y. 348.

2. The deposit of the money with him as banker constituted a loan, and no trust attached to it in his hands. Hill on Trustees, 173; Patt v. Clegg, 16 M. & W. 321; Sims v. Bond, 5 B. & Ad. 389; Carr v. Carr, 1 Meriv. 541; Devoyneo v. Noble, id. 568.

Mr. John L. Thompson, contra.

The debts are not of the same character, and cannot be set off. Lawrence v. Nelson, 21 N. Y. 158; Duncan v. Lyon, 3 Johns. Ch. 358; Waterman on Set-off, 209.

MR. JUSTICE CLIFFORD delivered the opinion of the court.