Norwich bulletin., 1914-04-30
THAMES LOAN AND
 TRUST DECISION
(continued from Page seven)


 With us, too. seton is regulated by statute.
 1 Under our earliest statute. 1920, tn, | debt due one partner could not bt | set off against the joint debt due iron l the partnership. The parties were not ], identical then essential of mutual l ity.
 | Judge Loomis in Meeker ct al. Thompson. 4S Conn. 77. has sum marized a the statutory changes iron 1920 through the Revision of 1875 He shows that the amendatory statute | passed in 1843, permitted @ setoff by any of the defendants of the debt due him from the plaintiff against the l debt sued in by the plaintiff, and that this statute was broadened by the language used in the Revision o1 1875 that these changes had the effect 1 somewhat to limit the scope of the word mutual" in our statute. That part of our statute which i'm l mediately concerns us is identical witt the language used in the Revision oi 1875.
 Tn all actions brought for the re- ccvery of a debt, if there shall be mu- tuaI debts between the plaintiff ol plaintiffs, or either of them, and the defendant or defendanH. or either ot the other G. $. 1902. Sec 649
 Based upon the right of setoff under the statute of 1920, in Pitl1in v Pit kin, Conn. 525, BPS, we defined mu- tua1 debts, ITO constitute mutuality the debts must be due to and from the same persons in the same capaci- ty.' And in Palmer V. Green, 6 Conn II. 1s, we held that mutual debts must exist between the parties in their own right and be of the same kind and quality, clearly ascertained and Hquidated.''
 
 as to parties first made in 1S43, was that the debt set off need no longer be due to all the defendants. but might De due to any of them.
 Snyder V. Spur, B Conn. 407.
 While the statutory changes have eliminated one of the fundamental es- sentials of the term mutual in the setoff statute, viz. the necessity for the identity of the parties and thus 1essened it's scope, they have not done away with it's other essentials.
 Mutual debts under our present statute are cross debts in the same capacity and right and of the same kind and quality
 And so we have held since these statutes were in force that a de- fendant could not set off his debt from the plaintiff and another against hie debt due the plaintiffff.
 Snyder Y. Spur (supra).
 We have also held in an action by eopartners the defendant could not set off indivirual debt against one of the partners.
 Meeker V. Thompson (supra).
 The debt due Rosenberg and Da- v;dson from the commercial and saw ings departments are their own in dividual debts; the debts due from Ro- senberg and Davidson may be their joint debts or their joint and several debts.
 If the notes of Rosenberg and David son be joint, the cross debts would not be in the same right or kird and so not mutual
 If the debts be joint and several they would be of the same kind and right. for each defendant is several 1y liable and hence the cross debts be mutual.
 Sledge Y, Swift, 53 Ala. no.
 Dunn V. West & Hacl1ley, B. Mon. 376, 3S5.
 Pomeroy Rem. & Rem. Rights, Sec. 761.
 34 Cyc. FPS:
 Note Gregg V. James 12 Am Dec. 156, and cases cited.
 Since neither copies of these notes nor such summary of their contents as would enable us to determine whether the notes were joint, or joint and several are in the record, we are not able to advise definitely as to this question of offset concerning them
 We are not unmindful that with va rious courts. certain apparent ex- captions to the general rule that n1u- tuality is essential to the validity of a setof have been recognized.
 Spinney V. Hall, 97 N. F. Gnd.) 571.
 None of the facts upon which such exceptions have been predicted ap- pear of record and hence we have not considered them
 {o wife's note held by the commercial de- partment. is a depositor in that de- partment and the receiver asks if this deposit can be set off against his liability on the note An endorSer upon note before insolvency may after insolvency set off his deposit in 8 bank against the banks demand up oB him under his endorsement of the note, provided the maker of the note is not able to pay and he himself has not been indemnified against loss.
 In Matter of Receiver of Middle District Bank, Cow, 414:
 Morse on Bankruptcy (3d Ed) See. 33S
 Yafd1ey V C1othier, 49 F. R. s37
 Lord Blackburn in McKinnon V. Armstrong Bros. Co. App. Gas. 63, held that for many years in England it has been decided that if an endorser of a bill became a party to the bill before the bankruptcy, he might set it off on becoming holder afterward
 The maker of this note was able to pay and therefore Worthington can not have a set off. This rule would seem to be based upon sound reason. The endorser cannot lose if the maker be good: while if the set of be allow ed the estate of the insoIvent may be diminished for the soie benefit of the debtor. He will thus in all proba- bility, by arrangement with the en- dorser pay less of his debt than any other debtor, or the endorser would get a larger percentage of his deposit than other depositors This result would be highly inequitable.
 Other questions relate to items sent the Thames Co. for collection by a New York Bank
 On April 2, 1913, the National Re serve Bank of New York sent the Thames Co., flor collection and re- mittance'' items of s523.29 and s647S4
 The Thames Co. was restrained by order of Court from paying out moneys on April Is. 1913, and the re- ceiver appointed on June 27. and qualified on July 1, 1913. Upon the beneath the signature appeared the following:
 For collection only. Please do not credit until paid
 On April 15. 1913, The Reserve Bank O., for collection and renni ittance" an item of s2715 which was coilect- ed and credited the bank on the same day.
 All three itef:ls were collected and credited the banks on collection ac-
 count, but no moneys were set apart for their payment.
 The bank at the time of the >ceiIee tiens was indebted to The Thames Ce..