Page 104 U. S. 309
605. When, therefore, he becomes indebted to the bank, it is a
case of mutual debt and mutual credit, which may well be set off
against each other.
But in this case, there was no deposit. The relation of banker
and depositor did not arise; consequently there was no debt. When
A. sends money to B. with directions to apply it to a debt due from
him to B., it cannot be construed as a deposit, even though B. may
be a banker. The reason is plain. The consent of A. that it shall
be considered a deposit, and not a payment, is necessary, and is
wanting.
Another answer to the contention of the plaintiffs is found in
the language of the twentieth section of the Bankrupt Act of March
2, 1867, c. 176, which differs materially from that of the
twenty-eighth section of 5 Geo. II, c. 30. In our act, the terms
"credits" and "debts" are used as correlative. What is a debt on
one side is a credit on the other, so that the term "credits" can
have no broader meaning than the term "debts." We find no warrant
in the language of the section or its context for extending the
term "credits" so as to include trusts. Generally we know that
"credit" and "trust" are not synonymous terms. They have distinct
and well settled meanings, and we see no reason why they should be
confounded in interpreting the twentieth section of the Bankrupt
Act.
To authorize a setoff, there must be mutual credits or mutual
debts. The remitting of certain money assets by Hopkins to the
plaintiffs, to be applied by them according to his instructions,
did not make them his debtors, but his trustees. So that there were
in the case no mutual credits or debts. The indebtedness was all on
the side of Hopkins. The plaintiffs owed him nothing. They held his
money in trust to apply it as directed by him.
They refused to make the application as he directed. They held
it, therefore, subject to his order. They continued so to hold it
until the rights of the trustee in bankruptcy attached, and until
he sought to recover it by his counterclaim filed in this case.
The only contention of the plaintiffs set up in this court is
that the Supreme Court of Ohio approved of the action of the
Superior Court of Cincinnati, in refusing to allow the
plaintiffs
Page 104 U. S. 310
to set off the unsecured debt due to them by Hopkins against
funds entrusted to them by him for an entirely different purpose.
We are of opinion that the decision of the. Superior Court was
correct. The judgment of the Supreme Court of Ohio must therefore
be
Affirmed.