The depositor's right of set-off has already been noticed,1 as well as the bank's right against the depositor.2 The debtor to the bank may set off against his debt owing to the bank any claim due to him at the time of insolvency,3 but not any claims purchased by him after insolvency.4 In equity he may set off any claim owned by him, but not matured at the date of insolvency,5 but the debtor has no right of set-off upon an unliquidated demand.6 A claim for pay for services rendered the bank is a good ground of set-off.7 The state may set off taxes due to it against its debt to the bank.8 The debtor or his surety may set off against his check upon another bank, cashed by the insolvent bank, an unpaid draft given for it,9 or his balance in the bank agreed by him to be appropriated to the debt.10 A bank holding a cashier's check upon the insolvent bank, though only for collection, may set it off against its debt to the insolvent bank.11 Certified or accepted checks would no doubt be a good set-off.12 In a few states where the holder of a check can sue upon it after presentation, when the drawee has sufficient funds, a holder of a presented check would probably have the right to set it off.13 But in those states holders of unpresented ficient.7 Or, if two corporations, both insolvent, are liable upon the same claim, the holder may receive dividends from both corporations until he receives one satisfaction.8 But where the claim has been actually satisfied by a recovery of a judgment against a bank officer and a satisfaction thereof, the claim is not entitled to allowance.9 Officers of the bank10 or stockholdersll holding claims may share in the distribution for claims which they hold. But a claim based upon an ultra vires sale by a stockholder of his stock to the bank is not entitled to allowance.12 Stockholders who have paid off depositors are entitled to be subrogated to the depositors' rights,13 and even though they bought up claims at a discount, they may share in the distribution for the face value of claims,14 although, of course, such claims would not be a good set-off for their stockholders' liability, except, perhaps, to the amount of dividends upon them.15 The allowance of a claim does not, of course, satisfy it or change its nature.16 The. creditor by submitting his claim has been held to waive the right to raise a question as to the constitutionality of the appointment of the receiver or assignee.17 If the claim is disallowed by the receiver the holder may contest the matter in the same action,18 or may ' sue the bank if it has any legal existence,19 or may sue the receiver.20

13 See Sec. 65, ante, note 1. The case of Steinke v. Loof bourrow, 54 Pac. R. 120, is a good instance of the uncertainty of the statute law. It held that under the Iowa statute the receiver could not sue, yet at about the same time the Supreme Court of Iowa held that he could sue. State v. Union Stock Yards Bank, 70 N. W. R. 752. See also Howarth v. Ellwanger, 86 Fed. R. 54 (C. C. A.); Watterson v. Master-son, 15 Wash. 511; Ueland v. Hau-gan, 73 N. W. R. 169.

14 See Sec. 65, ante, note 1, and cases cited in Steinke v. Loofbourrow, supra.

15 See Sec. 65, ante, note 1. But at the same time the same result can be achieved by a suit in equity against all the stockholders, except that non-resident stockholders cannot be reached in this way. See Howarth v. Ellwanger, 86 Fed. R. 54.

16 Both a suit at law and an equitable action are possible in Massachusetts as alternative remedies. Stebbins v. Scott, 52 N. E. R. 535. Equity has the jurisdiction without the aid of a statute.

17 This is to be understood with the qualification that, if the receiver will not sue, the creditors may in equity. Anderson v. Seymour, 73 N. W. R. 171. 1 See Sec. 144, ante. 2SeeSec. 140, ante.

3 Fennell v. Nesbit, 16 B. Mon. 351; Salladin v. Mitchell, 42 Neb. 859. See Jackson v. Bank of Paterson, 1 Stockt. 205.

4 Smith v. Mosby, 9 Heisk. 501; Colt v. Brown, 12 Gray, 233; Davis v. Knipp, 92 Hun, 297; In re Middle Dist. Bank, 1 Paige, 585. One case allows a set-off where the claim was assigned to the debtor after suspension. Beers v. Hussey, 1 Bailey, Eq. 168. It is wrong.

5 In re Middle Dist Bank, 1 Paige, 585; Arnold v. Nies, 36 Leg. Int. 437; Jones v. Robinson, 26 Barb. 310; and see Sec. 144, ante.

6 In re Van Allen, 37 Barb. 225.

7 Davis v. Industrial Mfg. Co., 114 N. C. 321.

8 Common wealth v.Phcenix Bank, 11 Met. 129.

9 Armstrong v. Warner, 49 Ohio St. 376.

10 Chase v. Petroleum Bank, 66 Pa. 169.

11 Farmers' Dep. Bank v. Penn Bank, 123 Pa. 283. The bank as bailee had the right to recover the whole amount. See the case of Shryock v. Brashore, 33 Leg. Int. 56, as to the effect of notice of the insolvency of the drawing bank upon a bank draft. It becomes a check revoked.

12 Such a check has become a debt of the bank, but the holder must have had it at the date of the bank's suspension.

13 The theory is that so much of the deposit as the check represents passes to the holder upon presentation. See Sec. 147, ante. Whether the checks, perhaps, and in all the other jurisdictions, including the United States courts in those very states, holders of unaccepted or uncertified checks cannot set them off against the bank's claim.14 Under the national banking act a setoff does not create an illegal preference, even if the claim against the bank is unmatured. The highest authority has permitted an equitable set-off where the bank while insolvent discounted a note and placed the proceeds to the credit of the discounter; the depositor was allowed a set-off for the balance of his deposit, though the bank's debt against him was not matured.15 But even if the depositor's claim were not connected with the bank's claim, he would none the less have an equitable set-off.16 But the claim must have belonged to the debtor at the date of the suspension of the bank.17 No demand for the set-off prior to bringing the cross-suit is needed where the bank has suspended.18 The debtor who is entitled to a set-off, but pays the bank's claim, may recover his demand in full, where he paid under procourts of Illinois will hold that the holder of an unpresented check gets no right of set-off no one can say with certainty on account of the language which that state's courts hold in regard to the check being an assignment at law. If it is, then the right of set-off arises because the check holder owned the claim at the date of insolvency if he then had the check. But imagine for one moment the iniquitous result. A man with a large deposit, who has suspicions of the bank, can give checks upon the bank to the bank's debtors, who can set them off against their debts to the bank, thus enabling themselves to pay him for the checks their face value. In this way he would get a full preference. The courts must therefore hold that unpresented checks are not subjects of set-off by the check holder, nor are presented checks when the holder or the drawer has notice of insolvency.

14 The holder has no right of action against the bank, and hence he could not have set-off.

15 Scott v. Armstrong, 146 U. S. 499, reversing 36 Fed. R. 63.

16Yardley v. Clothier, 51 Fed. R. 506, 3 U. S. App. 207; Adams v. Spokane Drug Co., 57 Fed. R. 888; Clots v. Bentley, 5 Alb. Law Jour. 286; Mercer v. Dyer, 15 Mont 317.

17 Venango Nat. Bank v. Taylor, 56 Pa. 14; Beckham v. Shackelford, 8 Tex. Civ. App. 660. In this case the receiver allowed the set-off, and the debtor gave up his security. Contra, Davis v. Knipp, 92 Hun, 297.

18 Chemical Nat Bank v. Bailey, 12 Blatch. 480. test.19 The bank has a right of set-off for a bill, whose proceeds represented the claim of an insolvent depositor, where the receiver of the bank had obtained the bill after the insolvency of the depositor.20