cognizances in the Supreme Court, obtained leave to appeal, and thereupon presented their petition of appeal to His Majesty in Council, praying that the judgment might be reversed, and that the verdict entered for the plaintiffs might be ordered to stand for the sum of sicca rupees 30,176. 10a. 1p. and interest, after the rate and from the date mentioned in the special case, for the following Reasons: 1st. Because, by the assignment made by the insolvents in pursuance of the Act of the 9 Geo. 4, c. 72, the whole interests which the insolvents then had in the Company's paper and Government securities deposited with the respondents, and the right to redeem the same, became vested in the assignees, in trust for all the creditors of the insolvents, and the interest and right so vested in them could not be defeated by any subsequent default of the insolvents, so as to give the respondents a right of set-off, which they did not possess at the date of the assignment. 2d. Because the Company's paper and Government securities in question were deposited with the respondents under express contracts that the same should be returned upon payment of the respective sums, to secure which they were respectively deposited; and The respondents, on the other hand, contended that the judgments ought to be affirmed, for the following Reasons: 1st. Because the Act of 9 Geo. 4, c. 73, for the Relief of Insolvent Debtors in the East Indies, pro 1836. YOUNG v. BANK OF BENGAL. 1836. YOUNG v. BANK OF vides, by section 36, that where there has been a mutual credit given by the insolvents and any other person or persons, one debt or demand may be set off against the other; and all such debts, deeds and claims as may be proved under a commission of bankruptcy, according to the provisions of the English Bankrupt Act, may be proved under the Indian Insolvent Act, in the same manner, and subject to the like deductions, conditions and provisions, as prescribed in the English Bankrupt Act. The 2d. Because the contracts stated in the declaration, by which the Bank of Bengal agreed to pay to the insolvents the surplus remaining after the sale of the Government paper, beyond the amount of the loans which it was given to secure, were a credit given by the insolvents to the Bank to the amount of such surplus; and the promissory notes held by the Bank were a credit to the amount of such notes given by the Bank to the insolvents, thus constituting a mutual credit, and therefore a subject of set off between the Bank and the insolvents. assignees therefore, by tendering the amount of such respective sums before default had been made, might have recovered the said Company's paper and Government securitics in specie, by an action of trover, to which no set off, or other defence could have been made; and although default was afterwards made in payment of the loans, and the securities were sold before any tender made, yet the surplus monies arising from such respective sales were monies had and received for the use of Palmer & Co. 3d. Because no claim of him upon such surplus monies can be set up by the respondents, in oppo sition to their express contract to render such Sir W. Follett and Mr. Deacon (with whom Relied upon the grounds stated in the Reasons of the appellants' case, and cited the following authorities: Anon. 1 Mod. 215; Chapman v. Derby, 2 Vern. 117; Hewison v. Guthrie, 2 Bing. N. C. 755; Exparte Deeze, 1 Atk. 228; Exparte Ockenden, 1 Atk. 235; Green v. Farmer, 4 Burr. 2214; Exparte Prescott, 1 Atk. 230; Collins v. Jones, 10 B. & C. 777; Hankey v. Smith, 3 T. R. 507; Exparte Hale, 3 Ves. 304; Gibson v. Bell, 1 Bing. N. C. 743; Olive v. Smith, (a) Exparte Ockenden, 1 Ath. 235. Green v. Farmer, 4 Burrows. 2214. (b) The appearance of Mr. Deacon's report of this case while the present number was in the press has induced the Reporter to omit his note of the argument on either side, for, as he could not hope to furnish a more accurate report than one who himself assisted in arguing the case, he feels he would not be justified in imposing on the Profession a repetition of the same matter, though perhaps varied in form. He has, however, set out the reasons assigned on either side in the printed cases, and the authorities cited in support of them, and refers, for the able and elaborate arguments of the counsel in the case, to the full and accurate report of Mr. Deacon, in his 1st vol. of Cases in Bankruptcy, p. 622. 1836. YOUNG v. BANK OF 1836. YOUNG บ. BANK OF BENGAL. Dec. 15, 5 Taunt. 56; Rose v. Hart, 8 Taunt. 499; French v. Ferne, 1 Cook. Bankpt. Law, 536, 7 Ed.; Smith v. Hodson, 4 T. R. 211; Parker v. Carter, 1 Cook. B. L. 548; Sampson v. Burton, 2 Brod. & Bing. 89; Easum v. Cato, 5 Barn. & Adol. 661; Rose v. Sims, 1 Barn. & Adol. 521; Clarke v. Fell, 4 Barn. & Adol. 404; Key v. Flint, 8 Taunt. 21; Exparte Flint, 1 Swanst. 30; Buchanan v. Findlay, 9 Barn. & Cress. 738; Mountford v. Scott, 1 Turn. 274; Exparte Whitbread, 19 Ves. 209; Exparte Marsh, 2 Rose, 239; Exparte Alexander, 1 G. & J. 409; Exparte Hannen, 1 Deac. & C. 407. The Attorney-General (Sir John Campbell) and Commented on the cases above, and insisted that it was a question of mutual credit; they also cited M'Gillivray v. Simpson, 9, Dow. & Ry. 35; 9 Barn. & C. 746; note (a). Lord BROUGHAM: This was an appeal from the judgment of the Supreme Court of Calcutta, in an action brought by the assignees of Palmer & Co. against the Bank of Bengal, in which a verdict had been taken by consent, subject to the opinion of the Court on a special case. The case stated that Palmer & Co. had been in the habit of obtaining loans from the Bank on the deposit of the Company's negotiable paper, as well as on the discount of their own and other securities: that in the month of November 1829, Palmer & Co. obtained in this way six several loans from the Bank, amounting in the whole to 417,000 sicca rupees, depositing Company's paper to the amount of 460,000 sicca rupees and giving their own promissory notes at three months' date for the sums thus advanced by the Bank. By these six several promissory notes Palmer & Co. engaged to pay the several sums advanced with interest, and each note contained a further statement, that so much Company's paper had been deposited as collateral security, with an authority to the Bank to sell the paper deposited for the reimbursement of the Bank at the expiration of the three months' credit, rendering to Palmer & Co. any surplus arising from such sale, and with an undertaking of Palmer & Co. to make good any deficiency, and to pay 12 per cent. interest from the expiration of the credit until the debt should be discharged, or the paper be sold. The several credits expired in February 1830: the first on the 15th of that month, the last on the 28th; and on the 4th of January, while the whole of the loans remained unpaid, and the whole of the deposits were in the hands of the Bank unsold, Palmer & Co. were adjudged insolvent under the 9 Geo. 4, c. 73, and the plaintiffs were appointed assignees of their estate and effects; at the same period, the 4th of January, the Bank held promissory notes of Palmer & Co. at three months' date, for 40,000 and 60,000 sicca rupees, payable, the former the 24th January, and latter the 7th February 1830. These notes the Bank held as indorsees for value, Palmer & Co. having discounted them with the Bank in the ordinary course of business, and before the first of the six loans, viz. on the 21st of October and the 4th of November 1829. None of the loans being paid by the insolvents or their assignees, the Bank proceeded to sell the paper deposited according to the terms of the assignments, and there remained a surplus upon the six sales of 1836. YOUNG v. BANK OF |