135 F. 77 | 2d Cir. | 1905
It seems unnecessary to add anything to the discussion of the case, which will be found in the report of the referee, 11 Am. Bank Rep. 665. It was held in N. Y. County National Bank v. Massey, 192 U. S. 138, 24 Sup. Ct. 199, 48 L. Ed. 380, that, in the absence of fraud or collusion, a bank which holds promissory notes of a bankrupt need not surrender a deposit balance standing to the credit of the bankrupt on the day of the adjudication in bankruptcy, but may set it off against said notes, and prove for the amount remaining due after such set-off. The appellant seeks to differentiate the case at bar on the ground that the notes held by the First National Bank were not due at the date of adjudication (they have since matured), and that the bankrupt was not the maker, but the indorser, wherefore the notes did not constitute a “debt” of the bankrupt. His argument is interesting and ingenious, but entirely disregards section 1, subd. 11, Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3419], which provides that the word “debt,” when used in said act, “shall include any debt, demand, or claim provable in bankruptcy.”
“In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other and the balance only shall be allowed or paid.”
To determine, therefore, whether the holder of a claim is entitled to the benefit of section 68, it is necessary only to inquire whether his claim is one provable in bankruptcy.
We concur with the Court of Appeals for the Third Circuit (Moch v. Market St. Nat. Bank, 107 Fed. 897, 47 C. C. A. 49) in the conclusion that the liability of a bankrupt indorser of commercial paper which did not become absolute till after the filing of the petition is a debt provable in bankruptcy.
The order appealed from is affirmed, with costs.
