
    King et al. v. Armstrong, Rec’r.
    
      Equitable set-off—Insolvent debtor can not defeat by assignment of his claim—Stockholders in National Banks—Rights and liabilities of.
    
    1. When a person entitled to share in the distribution of a trust fund, is also indebted to the fund, and is insolvent, his indebtedness may, in equity, be set off against his distributive share; and the right of set-off will not be defeated by the assignment of his claim, though made before the amount of his indebtedness or distributive share is ascertained.
    2. Bach shareholder of a national banking association is individually liable for its debts, to the extent of the amount of his stock, at its par value, in addition to the amount invested in the shares held by him; and a receiver appointed to wind up the affairs of such an association that has become insolvent, is authorized, untier the direction of the comptroller of the currency, to enforce the liability of its stockholders, and collect from each of them the necessary amount, up to the extent of his liability, for the payment of the creditors.
    3. The indebtedness of the stockholders on their individual liability, together with the other assets of the insolvent bank, constitute a trust fund for the benefit of its creditors; and in equity, such indebtedness of a stockholder who is insolvent, may be set off against a dividend, payable out of the trust fund, on a balance due him on his deposit account with the bank at the time of its failure.
    4. An assignment by the-stockholder of his claim against the bank, before the direction of the comptroller to enforce his liability, but after the insolvency of the bank, does not affect the right to set off his liability against the dividend due on his claim; nor, does the fact that the comptroller, at the time of the assignment, had not determined the amount necessary to be collected from the stockholders for the payment of the creditors; it is sufficient that such direction has been given, and amount so determined, when the set-off is made.
    (Decided April 25, 1893.)
    Error to the Superior Court of Cincinnati.
    The case is stated in the opinion.
    
      Bateman & Harper, for plaintiffs in error.
    1. If any right of set-off exists in this cause, it must be the right to set off Brownell’s liability against the balance due upon his bank account. The application of such a set-. off would extinguish the whole right of action on the bank account, and leave Brownell indebted only for the excess of his liability over his bank account. So, on the other hand, the effect would be to pay the bank account in full to Brownell or his assignee, giving him thereby an advantage over other creditors in the application of a fund intended for the equal benefit of all. Sawyer v. Hoag, 17 Wall., 610.
    
    
      2. The fact that the receiver of a bank becomes authorized also to enforce the liability of the stockholders, does not change the relation of the debts. He becomes a trustee in two trusts; the one is held for the joint benefit of the bank, the creditors aud the stockholders; all have an interest in the assets through him as receiver of the bank. He is authorized to enforce the liability of stockholders; his trust 'is for the benefit of the creditors alone. The bank has no interest in it; it cannot be enforced for the benefit of these stockholders. He holds one claim in a single right; the other in a triple one. It would be just as illegal to allow a creditor to set off .his liability as a stockholder against his claim as a creditor, whether the stockholders’ liability is asserted in the name of the creditors or the name of the receiver. The set off at law is of causes of action presently due, between the parties litigant, in the same right. Revised Statutes, section 5075, 5077. Granger Adm. v. Granger, 6 Ohio, 85, 42; McDonald v. Black, Adm., 20 Ohio, 185, 195; Fuller v. Steiglitz, 27 Ohio St., 356; Receiver v. McVey, 31 Ohio St., 231; Ross v. Johnson, 1 Handy, 388.
    3. The right of action upon the stockholders’ liability did not accrue until after the assignment of the bank account to the plaintiffs. Indeed, the idea of its set off never seems to have occurred to any party in the case until long after suit was begun. The answer setting it up was filed nine months after the petition and eight months after the first answer. The Comptroller of the Currency did not determine that any enforcement of the liability of the stockholders was necessary, until four months after the answer claiming it as aforesaid was filed, and after the first judgment has been entered in the cause; The claim was assigned by Brownell to plaintiffs on July 30, 1888, nearly eight months before action was taken by the Comptroller. The obligation to pay, on part of the stockholders, did not accrue until the accounting bj^ the receiver made the necessity apparent, and that was ascertained by the Comptroller. This court, in Barrick v. Gifford, 47 Ohio St., 180, held that mere alleged insolvency is not sufficient to constitute a right of action.
    But the laws of the United States prescribe how and by whom this insolvency shall be ascertained, and the necessitj' of resorting to the stockholders’ liability shall be determined Kennedy v. Gibson, 8 Wall., 498, 505.
    
      It is therefore manifest that no obligation of a stockholder ' to pay and no right to demand payment of him existed at the time the answer was Sled making a set off, nor at the time the account was transferred to plaintiffs. The claim against him was not due until the Comptroller ascertained and declared it necessary for the payment of the debts of the bank. The statute of limitation would not begin to run until that time. The receiver had no right to take any steps toward its collection or to assert any right concerning it until that time. One of the conditions of a set off is that both debts should be due and payable.
    4. The set off made in the judgment is against the dividend, and not against the claim upon which the dividend is made. In fact the decree finds that the claim belongs to the plaintiffs, and they had and still hold the right of action thereon. It is against the dividend the right of set off is asserted. How can this be? If there is no right of set off against the bank account, how can there be one against the dividend? A dividend is merely a partial payment of the debt. If jrnu have no claim on the debt, you can not interfere with its payment. The right to demand payment inheres in the ownership of the debt, and is inseparable from it. Both the judgment of court and the certificate of the receiver declared and established the title of the plaintiffs. The dividend was made in their name and the check of the Comptroller therefor was payable to their order. Brownell never had any interest in the dividend, and there is no rule in the law of set off that will justify its appropriation for the payment of his debt.
    But the court held that after a dividend had been declared and ordered to be prepared by Comptroller, and a check issued to receiver therefor, the difficulty in the way of set off was removed. It then ceases to be an undivided interest in trust property, but becomes a several right to the payment of money which is a debt, and can then be set off against the several stock liability of Brownell. But there is difficulty in this proposition. The right of set off did not accrue confessedly until the dividend was made, viz.: February 18, 1889. Previous to that time the right to transfer the bank account as against any subsequent set off, is clear. Fuller v. Steiglitz, 27 Ohio St., 355. Both demands must be not only in existence, but due, before a right of set off accrues. The bank account was assigned for a valid consideration, on July 30, 1887, to plaintiff. On September 15, 1887, the receiver certifies that “legal and satisfactory proof” was made to him, and he issued to them his certificate thereof, as creditors of the bank, upon the account. This assignment and the receiver’s certificate was. made more than eighteen months. before the dividend was-declared and the alleged right of set off accrued.
    The nature of this proceeding and the relation Armstrong bears to his trust is to be determined by the provisions of the Federal Statutes providing for his appointment and duties. Sections 5234, 5235. 52:;6.
    But even if there had been no assignment, the attempt to-set off statutory liability against dividend does not escape-the rule in Sawyer v. Hoag, supra. The claims would be held in different rights; the one would be held for the sole use of Brownell and the other is owned for the benefit of all creditors, the plaintiff included. Unless special equities exist, authorizing it, a partnership claim can not be set off against an individual claim of one of the partners. Second National Bank v. Hemingray, 35 Ohio St., 381.
    There is no claim that any special equities exist in this-case. It is to be governed by the general law of set-off and the technical rules that govern its application.
    5. The effect of this proceeding, therefore, if permitted, will not be that of a set-off but that of a creditor’s bill or other proceeding in the nature of execution. The assignment of the claim has been made by Brownell to plaintiffs; that assignment has been recognized and certified by the receiver upon due proof; it has been found and established by the court in the judgment in this case, placing the plaintiffs in the situation of one of the creditors of the bank entitled to a dividend. Their right has further been recognized by the comptroller, who has made dividend to them and a check therefor payable to their order has been forwarded to the receiver, who holds the same for delivery. The effect of this proceeding is to subject that check, belonging to plaintiffs, for the payment of another person's debt. There exists no situation of set-off in the case, the action being to ■compel the receiver to perform his duty by the delivery of ■the check. If it were an action upon the check, such situation might exist, but that is not the case.
    Is there anything in the circumstances of this case, any ■consideration of equity that requires that the court should ■take this money from the plaintiffs and give it to persons who are total strangers to the transaction out of which it -arises and to the contract upon which it is ordered to be paid? Creditors and stockholders alike, of this bank, have been overwhelmed with the consequences of a crime for which none of them are responsible, and no circumstances •are shown that <authorizes, in the way of equity, the misfortune of many to be relieved by taking the property that properly belongs to the few.
    Herron, Gatch & Herron, for defendant in error.
    1. The first claim that we make in this case is, that the ■defendant in error is not in any way liable in the present action. The receiver of a National Bank neither makes nor pays the dividends to the • creditors. Section 5236 of the Revised Statutes of the United States. The receiver deposits in the treasury of the United States all moneys collected by him, and has neither the possession of nor control ■over that money after such deposits are made.
    2. We claim next, that the deposit account in this case •cannot be assigned so as to prevent the dividends upon it being retained as credits on the claim against Brownell for his indebtedness as .a stockholder of the bank. Brownell was a stockholder in the Fidelity National Bank, to the extent of fifty shares; and he was liable on that stock in the sum of five, thousand dollars. This liability is fixed by the statutes of the United States, section 5151, Revised Statutes of the United States.
    Charles A. Brownell was, therefore, at the date of the failure of the Fidelity National Bank, responsible for the ■debts and habilites of that bank to the extent of five thousand dollars. Irons v. Manufacturers' National Bank, 21 Fed. Rep., 188; Bailey v. The First National Bank of Duluth, 9 Chicago Regal News, page 191; Hobart, Receiver v. Johnson, 8 Fed. Rep.,.498; Bowden v. Johnson, 107 U. S. 252; Winters v. Sowles, 32 Fed. Rep., 137; Brown v. Hitchcock, 36 Ohio St., 667.
    Upon the failure of the Fidelity National Bank, this liability of Charles A. Brownell to the extent of five thousand dollars became absolute. The bank at that date became unable to discharge its indebtedness, and the contingency on which the shareholders’ liability might cease to exist was removed. At that date Brownell was indebted in the sum of five thousand dollars to the creditors of the bank. This indebtedness had become fixed as of that date by the insolvency of the bank. It was a liability as principal, the same as if he had given his note for that amount to the creditors; and it was due and collectible at that time. Nor does the decision in the case of Kennedy v. Gibson, etal., 8 Wall., 498, controvert this position. Barrick, v. Gifford, et al., 47 Ohio St., 180.
    3. Judge Blodgett, in Hobart, Receiver, v. Johnson, before cited, defines this indebtedness of the shareholders as “an asset of the bank.” Section 5234 of the Revised Statutes provides: “Such receiver, under the direction of the comptroller, shall take possession of the books, records and assets of every description” etc.
    This applies to the collection of the indebtedness of the stockholders on their liability under consideration, as well as to bills receivable and other paper discounted by the bank.
    Section 5242 of the Revised Statutes prohibits transfers of its assets, etc., except in certain contingencies.
    It has been over and over decided by the courts of the United States that the object and intent of these sections is to secure an equal distribution of the assets of the bank of every description among its general creditors, and that every act done, whatever form it may assume, intended or calculated to defeat such equal distribution, is covered by the statute and null and void. National Bank v. Colby, 21 Wall., 613; Pacific National Bank v. Mixter, 124 U. S., 725; Ve
      
      nango Bank v. Taylor, 52 Penn. St., 16; Stephens, Receiver, v. Shuman, 32 Mo. Ap., 333.
    4. But are these- liabilities mutual or in different rights? The liability of the stockholders is a trust for the benefit of the general creditors. The receiver, through the comptroller becomes a trustee of that trust, and, therefore, he holds this asset as trustee for the benefit' of the general creditors. The liability of the depositor, as attempted to be enforced in this case, is against the receiver in the same capacity. It is not like the case of Sawyer v. Hoag, in 18 Wallace, 610, cited by counsel on the other side.
    In the present case the liability of the receiver as trustee for the creditors, is on the one side, and the liability to the receiver, as trustee for the creditors, is on the other side. They affect the same fund, and are mutual. The true application of the principles governing this class of cases is clearly stated by Morse on Banking, section 334.
    In the present case both claims in fact affect the same fund, and, therefore, properly come within the rules laid down in this authority.
    But it is claimed that the receiver of the bank, as to the ordinary assets, is trustee for the stockholders and creditors both; but as to the indebtedness of the stockholders on their stock, he is trustee for the creditors only. This difference is altogether formal and without substance.
    5. Upon another well settled principle of equity, the claim of the defendant in error in this case should be allowed. Brownell is wholly insolvent. On the same day that this deposit account was assigned to the plaintffs in error, he made a general assignment of all his property for the benefit of his creditors; and no dividend under this assignment has ever been declared by the assignee. Insolvency authorizes a set-off in many cases when otherwise it would not be allowed. Brownell was insolvent at the time when his assignment of the deposit account was made, and the assertion by the receiver of his right to proceed against him upon his liabilities to the bank, was the occasion and excuse of his making this assignment, and of the plaintiffs in error demanding it.
    
      6. A further defense in this case, founded upon the special character of this action, leads to the same result as that already considered. This is an action against Armstrong as the receiver of the bank, for the amount of a check sent to him by the comptroller of the currency. It is not an action to compel him to allow the claim founded upon the bank deposit. Such an action could have been brought at any time after the rejection of that claim by the receiver or the comptroller, the claim having been properly authenticated. But the claim was allowed by the receiver and by the comptroller, and, therefore, no such action could have been brought. This action, therefore, is not for the claim, nor for its allowance, but for dividends declared upon the claim.
    7. One other question is raised in this case. It is said that the receiver issued a certificate in the name of the assignees, the plaintiffs in error, and that, therefore, he cannot dispute their right to the dividend. This certificate gave no new cause of action. It simply certified to a settlement of the account, and to the amount that appears by the books of the bank to be due upon it. The receiver has no power to incur a liability by any act of his, nor in the present case did he attempt to incur any such liability. Had the plaintiffs in error been placed in any different position from that previously occupied by them, in consequence of this certificate having been issued in their name, or had they given any new consideration for the issuing of this certificate, it might estop the receiver from attempting to correct the form of the paper which he signed, if he had power to execute such paper at all. But no claim of this kind is made. No new consideration did pass. No change in the position of the parties took place. Under the circumstances, then, of the present case, any error committed may be corrected.
   Williams, J.

The Fidelity National Bank of Cincinnati, a banking association organized under the national bank act, became confessedly insolvent, and suspended business, on the 21st day of June, 1887; and, on the 27th day of that month, the defendant, David Armstrong, was appointed by the comptroller of the currency, receiver to wind up its affairs. The franchises of the bank were adjudged forfeited, and the association dissolved, by a decree of the Circuit Court of the United States, at Cincinnati, on the 12th day of July, 1887. When the bank failed, it was indebted to Charles A. Brownell in the sum of $3,330.52, that being the balance then standing to his credit on his deposit account; which balance, on the 30th day of July, 1887, he assigned to the plaintiffs, Joseph King, M. Schroder, and Charles E. Brownell, as a security for, or payment on, a pre-existing debt which he owed them. The plaintiffs, soon afterward, presented their claim to the receiver, and on the 15th day of September, 1887, obtained from him a certificate .stating they had made satisfactory proof of the assignment, and that they were creditors oY the bank to the amount of the balance due Charles A. Brownell on the deposit account. On the 1st day of November, 1887, the comptroller of the currency declared a dividend of twenty-five per cent, on the claims of the creditors, and issued to the receiver checks for the amount of the dividend due each creditor, payable to the creditor; among them was a check for $832.63; the dividend on the claim assigned to the plaintiffs. The defendant refused to pay that dividend to the plaintiffs, who, thereupon, brought the action below, to recover it.

At the time of the failure of the Fidelity Bank, Charles A. Brownell was the owner of fifty shares of its capital stock, of the par value of one hundred dollars each, on which, under the provisions of the national bank act, he was liable for the indebtedness of the bank, to the amount of his stock, in addition to the sum invested in the stock held by him. That act provides, that “the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” U. S. Revised Statutes, Section 5151.

When the bank failed, as well as when Brownell assigned the balance due on his deposit account to the plaintiffs, he was, and still is insolvent; and immediately after the transfer to the plaintiffs, of the balance due him from the bank, he made a general assignment for the benefit of his creditors. At the time the plaintiffs obtained from the receiver the certificate alluded to, he was not aware of the liability of Brownell as a stockholder of the bank, but became aware of it before the checks for the dividend, on the claims of creditors, were received; and, they were received with instructions from the comptroller to withhold them from all stockholders, and others in any way indebted to the bank. Afterward, the comptroller decided that it was necessary to enforce the stockholders liability to the full extent of one hundred dollars on each share, in order to pay the indebtedness of the bank, and made his order accordingly, declaring such necessity, and directing the defendant to collect, by suit or otherwise, from each stockholder, including Charles A. Brownell, the full amount of his liability. On the liability of Brownell, which amounts to five thousand dollars, nothing has been paid; and the receiver sought, in the action below, to have it set off against the dividend in his hands, upon the claim assigned by Brownell to the plaintiffs. The Superior Court allowed the set-off; and it is of that, the plaintiffs are here complaining.

The question in the case, therefore, is whether, upon the facts stated, the receiver is entitled to retain the amount of the dividend due on the debt which the bank owed Chas. A. Brownell at the time of its failure, and apply it on his liability as a stockholder of the bank. His right to do so, is controverted by the plaintiffs, chiefly on the ground that the cross-demands are not due to and from the parties respectively, in the same right; or. more definitely stated, that the stockholder’s liability is for the exclusive and equal benefit of the creditors, and is not a debt due the bank, or an asset of the bank; while the balance due on Brownell’s deposit account, is a debt of the bank, payable out of its assets, which he could not set off against his stockholder’s liability, and consequently, the receiver, it is claimed, cannot set off the liabitity against the debt, or dividend due upon it.

There is a noticeable difference, of some importance, between the administration .of the effects of an insolvent Ohio corporation, and those of a National Banking Association. With respect to the former, the stockholder’s liability does not pass to the assignee, or receiver, as assets for administration, and no right of action can accrue thereon in his favor. It can be enforced only at the suit of the creditors; and hence, the assignee may not, lawfully, withhold from a creditor of such corporation, a dividend due him from its assets, on the ground that he is liable as a stockholder, and the creditors, on account of his insolvency, might not otherwise be able to enforce the collection of any part of his liability. The creditors, in such case, undoubtedly could, by appropriate action, reach the dividend, and compel its application to the payment of the indebtedness of the stockholder; but ,as between a stockholder and the assignee, the latter would not have the legal right to set off the former’s liability against a dividend due him as a creditor, because the assignee is wholly without authority to collect or receive any part of the amount owing by the stockholder. It is different with a receiver of a national bank, By the provisions of the national bank act, the comptroller of the currency may appoint a receiver of such banking association, whenever he is satisfied that it is in default in the payment of its circulating notes, or has become insolvent; and the receiver is required, under the direction of the comptroller, to “take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, * * * and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders.” Revised Statutes of the United States, Section 5234, act of June 30,1876, Supp. U. S. Revised Statutes, 107. The receiver is authorized to collect from each stockholder, the necessary amount, up to the full extent of his liability, to meet the demand» of the creditors, and appears to be charged with that duty. The amount due from the stockholders becomes assets to be administered by him, as the other assets of the hank in his hands; and all of the assets, including the individual liability of the stockholders, constitute a trust fund for the benefit of all creditors having valid claims against the bank. It therefore becomes the duty of the receiver, under the direction of the comptroller, to so administer the fund as to secure to each beneficiary his just proportion of it. In his trust capacity, he is the representative of all the creditors, and of all the stockholders, both in the collection of the assets, and their proper distribution; and the fund collected from the stockholders goes into that arising from the other assets, and is distributed in the same way to the creditors, without separation or distinction on account of the source from which it is derived. It altogether constitutes one common fund, for the equal benefit of all the creditors, according to their respective rights; so that, whatever is due from Charles A. Brownell, on his individual liability as a stockholder, is due the receiver in the same relation in which he owes the dividend on the claim of Brownell against the bank. If Brownell were solvent, so that the amount of his liability could be collected, the fund for the creditors would be increased five thousand dollars by its collection; and by the payment of the dividend to him, or his assignees, the plaintiffs, it would be reduced $832.63. If the dividend were paid to Charles A. Brownell, and not placed beyond the reach of legal process, it might be immediately subjected by the receiver, to the payment of his indebtedness on his stockholder’s liability. But, if it is required to be paid to the plaintiffs, the creditors’ fund will be permanently diminished to that amount, which, at the same time, will loose 'the amount due it from Brownell, because, on account of his insolvency nothing can be collected from him, unless the receiver is allowed' to retain the dividend now in his hands, and have Brownell’s indebtedness set off against it. While the relation of Brownell to the receiver may not, strictly speaking, be that of debtor or creditor, in the sense essential to the right of set-off at law, he was, before he assigned his claim to the plaintiffs, both a debtor to, and creditor of the fund which the receiver represents.

Equity will enforce the set-off, or compensation of cross-demands, so far as they equal each other, when necessary to prevent one of the parties from losing his demand on account of the insolvency of the other. Upon the same principle, when a person entitled to share in the distribution of a trust fund is also indebted to thfe fund, and is insolvent, his indebtedness may, in equity, be set off against his distributive share; and, as a general rule, the right of set-off will not be defeated by the assignment of his claim, though made before the amount of his indebtedness, or of his distributive share, is ascertained. That application of the principle is not in conflict with the case of Sawyer v. Hoag, 17 Wall. 610, which is relied on by counsel for plaintiffs. Sawyer was indebted to the Eumbermans’ Insurance Company of Chicago, in the sum of $4,250, on his stock subscription, and after the company became insolvent by reason of its losses in the great fire in that city, bought up, for a small sum, a certificate of an adjusted loss of $5,000, against the company, and sought to have it set off against his stock liability, after the company had been adjudged a bankrupt. The court held, that the stock subscription was a trust fund for the equal benefit of all the creditors of the company, and Sawyer was not entitled to the set-off he was demanding, because, to allow it would give him an undue proportion of the fund, and deprive other creditors of their just share. It was contended in behalf of Sawyer, that the right to the set off was given by the bankrupt act, which provided that, “in all cases of mutual debts or credits between the parties, the accounts between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid.” That provision of the bankrupt law it was held, was not intended to enlarge the doctrine of set-off; and in speaking of the right of set-off under it, Mr. Justice Mirrer said: “The debts must be mutual; must be in the same right. The case before us is not of that character. The debt which the plaintiff owed for his stock was a trust fund, devoted to the payment of all the creditors of the company. As soon as the company became insolvent and this fact became known to the plaintiff, the right of set off for an ordinary debt to its full amount ceased. It became a fund belonging equally, in equity', to all the creditors and could not be appropriated by the debtor to the exclusive payment of his own claim.”

The case is essentially different. from the one we have before us. The debt which Sawyer owed the insurance company was due to a trust fund, in which all the creditors were entitled to share equally; the debt which the company owed him was one which was only entitled to receive its proportion of the fund, and not entitled to payment out of it, in full. He could not, therefore, set off the whole amount of the debt due him, against that which he owed the fund, for that would result in an unequal distribution of the fund, and enable him to obtain more of it, proportionately, than the other creditors, and more than his proper share. That was the reason for denying the set-off which he sought to have made. The reason is wholly ■wanting in the present case. Here, the set off allowed by the court below, was not of the entire claim which the bank owed Brownell, against his obligation to contribute to the trust fund on his stockholders liability, but only of his proper share and proportion of that fund, payable on his claim against the bank, as ascertained by dividend duly made and declared. The allowance of the set-off took nothing fprom the other creditors to which they were entitled, and gave nothing more to the claim of Brownell than it was justly entitled to receive—its proper share of the trust fund. It in no way interferes with the equal rights and equities of the other creditors, but on the contrary, preserves and protects their rights, and inures to their benefit, by increasing the fund. We see no valid objection to the set-off adjudged by the court below, unless the right was defeated by the assignment of Brownell’s claim against the bank, to the plaintiffs; and we think it was not. It is contended by counsel for the plaintiffs, that the liability' of Brownell as a stockholder had not accrued when the assignment to them was made, and therefore, could not be set off against the dividend due on the claim. The position of counsel is, that the liability was not complete, and so not due, until the comptroller of the currency directed the receiver to enforce it, which was subsequent to the assignment. In support of this position, Kennedy v. Gibson, 8 Wall. 498, 505, is cited, in which it is said: “It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability', and whether the whole or a part, and if a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. * * He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action on his part is indispensible whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of suit by the receiver. The fact must be distinctly averred in all such cases, and if put in issue, must be proved.”

The power appears to be vested in the comptroller, to determine when it is necessary to collect from the stockholders, and the amount to be collected; but not to establish the liability, or determine when it accrues. The liability is complete, and subject to proceedings for its enforcement when the banking association becomes insolvent and suspends business; the comptroller simply directs at what time, and to what extent, the liability shall be enforced. It may require an investigation of the condition of the bank, its assets and liabilities, in order to determine whether resort to the stockholders is necessary, and for what amount; and while that duty is devolved upon the comptroller, and no proceeding can be instituted against the stockholders until directed by him, the maturity of the liability is not postponed until such direction is given; the proceeding only, is so postponed. By the provisions of the national bank act already quoted, the receiver is required, “under the direction of the comptroller, to collect all debts,”, etc., belonging to the banking association; and it could, with as much propriety be said, that, inasmuch as the receiver could only collect the debts due the bank, under the direction of the comptroller, a matured note held by the bank at the time of its failure, does not become due until the comptroller has directed it to be sued, as, that the liability of stockholders-does not mature, until instructions are received from the comptroller to institute proceedings for its enforcement. Receivers generally institute suits under the direction of the courts by which they are appointed; and, though the order of the court authorizing the suit may be essential to its maintainance, it does not follow that the claim sued on,' matured only upon the order being made. The receiver of an insolvent national bank obtains his appointment from the comptroller of the currency, and acts under his directions and orders, which are analagous to an order of court to a receiver appointed by it.

It is well settled, that the statutory liability'- of stockholders of Ohio corporations is complete, so as to set the statute of limitations running in their favor, when the corporate property has been placed in the hands of an assignee in bankruptcy or insolvency, or of a receiver to-wind up its affairs. The exact amount of the liability of each stockholder may not then be known, and can only be ascertained in the progress of the action; yet the court may retain control of the cause and parties until the amount is-definitely fixed, and the ultimate rights of the parties are adjusted. Younglove v. Lime Co., 49 Ohio St., 663.

The liability of Charles A. Brownell as a stockholder of the Fidelity Bank, was due, we think, in every sense essential to the set-off, when the bank failed; and the assignment of his claim against it to the plaintiffs, therefore, presented no obstacle to the allowance of the set-off. Nor, did the certificate which the plaintiffs obtained from the receiver. That, gave them no new right, and amounted to nothing more than an acknowledgment of the correctness of the-claim, and its assignment to them. Their position was in no way changed on account of it.

We are of opinion the court committed no error in retaining the cause until the amount of Brownell’s liability was determined, and then setting it off against the dividend due on his claim against the bank.

The judgment is affirmed.  