Page:Federal Reporter, 1st Series, Volume 8.djvu/73

HOBAET V. aOULD. C9 �The reported cases, so far as they go, sustain this view. It was upon this principle that the chancellor of New Jersey, in the recent case of The Attorney General v. The Mechanicg' dt^'Laborers' Savitigs Bank, (5 Stew. 168,) heldthat a depositor who borrowed money froin the bank, secured by his note or mortgage, could not offset bis debt against the amount of his deposit at the time when the decree of insolvency was made. In reaching this resuit he was following the well-considered case of Osborn y, Byrne, 43 Conn. 155, in which the supreme court of Connecticut, in answer to the petition of the re- <5eiver of an insolvent savings bank, praying for instructions, decides that the borrower of the funds of the corporation should not be allowed to offset his deposits against his indebtedness. �The question, so far as I know, has never been before the supreme court of the United States for decision ; but the cognate one, whether a . stockholder, who had given his notes for his stock subseription, and who was sued thereon after the insolvency of the institution, might offset debt s due to him from the corporation in the ordinary course of business, has received full discussion, and the court has refused to allow such offset, on the ground that the money arising from the unpaid shares was a trust fund, to be equally divided among all the creditors. Sawyer v. Hoag, 17 Wall. 610. If there be any difference in principle between that case and this, I am not able to perceive it. The whole object of the individual liability of the shareholder provided for in the act, was to create a fund in case of insolvency for the payment of the general creditors equally and ratably ; and if the capital must be regarded and treated as a sacred trust for such a purpose, much more so, the equivalent sum to be derived from the enforcement of the liability provision. �The court of appeals of New York (In re Empire City Bank, 18 N. Y. 199) examined the same question, arising under the general banking law of that state; and the provisions of the two banking Systems are so nearly alike in regard to the personal liability of the shareholders that the judgment of the learned court is entitled to great weight and consideration here. Judge Denio, in answer to the claim of one of the appellants that, being a crediter of the bank as well as a stockholder, he was entitled to set off the indebtedness of the bank to him against his liability, speaking for the, court, said : �" Under a proceeding for winding up a corporation, where an account of all the debts and of all the eflects, including the aggregate liabilities of the stockholders, is required to be taken, there is no reason why a creditor should toe in any better situation on account of being at the same time a stockholder. ��� �