94 Ga. 95 | Ga. | 1894
The Brunswick State bank, which was a State depository, became insolvent while indebted to the State. On the petition of certain creditors of the bank, a receiver was appointed to take charge of its assets, and the State, in whose behalf the governor had issued an ■execution according to law, became, by intervention, a party to the case, claiming that it had a first lien on all the assets and praying for an order directing the receiver to turn over to the State, in preference to all other claims, all moneys received by him from the assets and securities of the bank, until the execution in favor of the State was fully satisfied.
Passing by a question of practice, the decision of which by this court was duly waived, there is but one question for our consideration.
To the granting of this order the State excepted. Were the notes in question assets of the bank upon which the State’s lien takes effect, without reference to the liability of the bank to the makers of these notes for amounts justly due them, respectively, on their deposits? We think not. On the contrary, in our opinion, these notes were assets only in so far as there might be due to the bank balances upon them after deducting the amounts of the respective deposits, if those deposits were made bona fide while the bank was engaged in the transaction of its regular business and had control of its books. In Ray v, Dennis, 5 Ga. 357, it was held that where the demands were mutual, a set-off' should be allowed in favor of a defendant against whom suit had been brought by an administrator on a demand due his intestate, the case proceeding upon the idea that only the net balance, after deducting the amount of the set-off, would be assets of an insolvent estate. Moise v. Chapman, 24 Ga. 249, lays down the doctrine that the debtor of a bank may make any defence to a suit brought against him by a receiver of the bank, which would .be available in a suit against him by the bauk itself. In this connection, attention is directed to section 2900 of the code, which distinctly recognizes the right of set-off'. It was held in Seay et al. v. Bank of Rome et al., 66 Ga. 609, that the lien of the State upon the property of a State depository was not limited to such property only as could be reached by levy and sale, but extended to all the property, including choses in action. This case, however, does not rule that claims held by the bank against others are assets of the bank
Judgment affirmed.