The rights of an assignee in insolveuey are determined by the deed of assignment unless a statute controls his action.

9 Dickerson v. Cass Co. Bank, 64 N. W. R 395.

10 People's Sav. Bank v. Superior Court, 103 Cal. 27; Bank Commissioners v. Bank of Buffalo, 6 Paige, 497; Bank Commissioners v. Central Bank, 5 R. L 12.

11 Dickerson v. Cass Co. Bank, 64 N. W. R 395.

12 Warren v. Fake, 49 How. Pr. 430.

13 People's Sav. Bank v. Superior Court, 103 Cal. 27. Compare Murray v. Am. Surety Co., 70 Fed. R 341.

14 Dayton v. Borst, 7 Bosw. 115; Dobson v. Simonton, 78 N. C. 63.

15 See United States v. Church, 5 Utah, 361, 136 U. S. 1.

16 People v. Central City Bank, 53 Barb. 412.

17Wiswell v. Starr, 50 Me. 381, tinder a statute: but the rule is the same without a statute.

18 Dayton v. Borst, 7 Bosw. 115.

19 Bank Comnrrsv. Franklin Sav. Inst., 11 R. L 557.

20 But only for the original appointment, where the bond was executed for that purpose. Governor v. Bowman, 44 I11. 499; Governor v. Lagow, 43 I11. 134

A receiver upon his appointment takes the title that the bank possessed, no more and no less.1 But where a fraudulent conveyance has been made by the corporation or a fraudulent preference has been given, the receiver may sue to set it aside.2 Where the statute forbids preferences by an insolvent bank, the receiver's title is superior to an attachment levied while the bank was insolvent.8 It would also be an unlawful preference.4 The receiver will not be estopped by the fact that he has paid part of the claim without knowledge thereof.5 He becomes an assignee of the assets,6 and represents both the bank and its creditors. He may revive a judgment in favor of the bank though a forfeiture has been decreed.7 He may sue upon the note of directors given to the bank to replace reduced capital.8 He supersedes the officers of the bank in the management of it,9 and may, of course, be substituted in all actions pending against the bank.10 He is entitled to seek the advice of the court,11 and one case has held that he can transfer the assets of the bank in payment of claims against it.12 There is one other species of claim which a receiver may sue for under some statutes,13 while under other systems he cannot.14 It is useless to seek to reconcile the decisions upon this subject, but the clear weight of authority is that the stockholders' liability belongs to the creditors, and a receiver without an express statute or a fair implication from a statute cannot sue for this liability.15 But since this liability will not be enforced except when the bank is insolvent, and since the rule of equality ought to prevail among general creditors, the rule ought to be that the receiver can sue. Yet in those states which permit a creditor to sue a stockholder at law and gain a preference, this suit by the receiver cannot well be allowed.16 But in all those jurisdictions which permit or require a suit for the stockholder's liability only in equity, where all the creditors and stockholders are parties, the receiver and no one else ought to be permitted to bring the action.17 And this may be said to be the general trend of the cases

1 Casey v. Credit Mobilier, 2 Woods, 77; Lincoln v. Fitch, 42 Ma 456; Hubbard v. Hamilton Bank, 7 Met 340; Bank of Lyons v. Dun-more, Hill & D. Supp. 398.

2 Carey v. Giles, 10 Ga. 9; Casey v. Cavaroc, 96 U. S. 467; Lamb v. Cecil, 25 W. Va. 288. These two cases were suits by the assignea There is some authority to the effect that an assignee cannot sue to set aside the assignor's fraudulent conveyanca Leavitt v. Yates, 4 Edw. Ch. 139; Atkinson v. Rochester Printing Co., 114 N. Y. 16a

3 Crane v. Pacific Bank, 106 Cal. 64 Compare New Orleans Imp. Co. v. Citizens' Bank. 10 Rob. (La.) 14. But contra, Dodson v. Wightman, 49 Pac. R. 790 (Kan. App.); and see cases in the next note.

4 But see Hubbard v. Hamilton

Bank, 7 Met. 340; Arnold v. Wei-mer, 40 Neb. 216. Foreign receivers are not protected against attachment. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367.

5 Lamb v. Cecil, 25 W. Va 288.

6 Bradford v. Jenks, 2 McLean, 130. Holders of notes, on the other hand, are not assignees. Wood v. Dummer, 3 Mason, 308.

7 Robertson v. Agricultural Bank, 28 Miss. 237.

8 Sickles v. Herold, 36 N. Y. Supp. 488.

9 This follows from the order appointing the receiver.

10 This is usually upon motion in the action.

11In re Van Allen, 37 Barb. 225; People v. St Nicholas Bank, 76 Hun, 522.

12 Atkinson v. Davidson, 2 Pin. 48.