of set-off may be adjudicated in proceedings instituted by or in behalf of the trust company, as is shown in Bailey v. Commissioner of Banks, 244 Mass. 499, 501, and cases there collected. Equitable rights and obligations may be adjudicated under § 36 in all cases where required in order to do justice. See, for example, Beecher v. Cosmopolitan Trust Co. 239 Mass. 48, Steele v. Commissioner of Banks in re Prudential Trust Co. 240 Mass. 394, Hecker-Jones-Jewell Milling Co. v. Cosmopolitan Trust Co. 242 Mass. 181. There is also right of action by a creditor against a trust company for the purpose of enabling the liability of stockholders for the “contracts, debts and engagements" of the trust company to be enforced. G. L. c. 172, § 24; c. 167, § 24; c. 158, § 49. That right, although not conferred by the express words of the statute, arises by necessary implication from that clause of G. L. c. 167, § 24, authorizing the commissioner of banks in possession of a trust company for purposes of liquidation to enforce the liability of stockholders under the conditions set forth in c. 172, § 24, and c. 158, § 49. Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128. Commissioner of Banks v. Cosmopolitan Trust Co. 247 Mass. 334. Thus no arbitrary power is conferred upon the commissioner of banks in the liquidation of a trust company. Ample opportunity is afforded to all creditors, whose claims are not fully allowed by the commissioner, to establish their claims and enforce their rights to dividends according to recognized principles of law in courts of justice. No judicial powers are conferred upon the commissioner of banks, who is a purely administrative officer. Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 116, 117, 118. Every creditor of a trust company in process of liquidation, so far as necessary to protect his rights and secure full recognition of his just claims, may enforce all his rights in the courts by forms of procedure which are expeditious and which will not offer means for undue delay in the final settlement and distribution of the assets among the many entitled to share.

There is under our statutes no general right of election by creditors of an insolvent trust company in the possession of the commissioner of banks for purposes of liquidation, either

(1) to prove their claims before the commissioner of banks or (2) to institute actions at law. That election is afforded by the express terms of the national bank act. U. S. Rev. Sts. § 5236. Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 401, 402. Kennedy v. Gibson, 8 Wall. 498, 506. Chemical National Bank v. Hartford Deposit Co. 161 U. S. 1,7. Rankin v. Emigh, 218 U. S. 27. The terms of our statute, although following in many respects the national bank act, Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 114, 115, are different and more restricted in this particular.

There is ground for argument that presentation of its claim by the knitting mills to the commissioner of banks, and its allowance for its face without subsequent withdrawal, constituted an election by the knitting mills to rely on that procedure as its means of enforcing its claim. Hewitt v. Hayes, 205 Mass. 356, 364.

The trust company remains in existence as a corporate entity even though the commissioner of banks has taken possession of its property and business and is subject to suits and actions in appropriate cases. American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249. Beecher v. Cosmopolitan Trust Co. 239 Mass. 48. Foreign Trade Banking Corp. v. Cosmopolitan Trust Co. 240 Mass. 413. Bates v. Cosmopolitan Trust Co. 240 Mass. 162. HeckerJones-Jewell Milling Co. v. Cosmopolitan Trust Co. 242 Mass. 181. John A. Wogan, Inc. v. Tremont Trust Co. 242 Mass. 505. Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128. Commissioner of Banks v. Cosmopolitan Trust Co. 247 Mass. 334. But the liquidation statutes confer no general right sufficiently extensive to justify the present action in the absence of some special reason requiring recognition of the right of action in order to do justice and fully to protect the rights of the creditor.

The comprehensive terms of our present statutes as to the liquidation of trust companies distinguish the case at bar from cases arising under general equity jurisdiction concerning receivers. Watson v. Phoenix Bank, 8 Met. 217, 222.

It is manifest that, so far as concerns the liquidation of a trust company, no such action at law as disclosed in the

present cross action is allowed under our statute. The general plan of the statute is that the commissioner of banks shall gather all the assets of the trust company and convert them into cash at the earliest moment consistent with sound administration and distribute them after deducting necessary expenses in dividends of equal proportion among creditors of the same grade or class who have established claims in accordance with the statute. The fundamental principle is equality of treatment among all creditors of the same grade or class. This principle is of paramount importance. It cannot be circumvented by any accident of procedure. It already has been held that creditors of the class to which the knitting mills belongs, that is, depositors in the commercial department of the trust company, cannot set off claims of that nature against their liability to the savings department upon obligations held by it against them. Kelly v. Commissioner of Banks, 239 Mass. 298. Cosmopolitan Trust Co. v. Rosenbush, 239 Mass. 305. Bachrach v. Commissioner of Banks, 239 Mass. 272. Tremont Trust Co. v. Baker, 243 Mass. 530, 532. Tremont Trust Co. v. C. H. Graham Furniture Co. 244 Mass. 134, 137. Bailey v. Commissioner of Banks, 244 Mass. 499. Those decisions have been rendered in actions with respect to obligations held by savings departments of trust companies in liquidation against their debtors who at the same time were creditors of the commercial departments. Those decisions are based on the ground that the investments of the savings department are held in trust for the depositors in that department and that its assets cannot be depleted to the detriment of those depositors by allowing a depositor in the commercial department to set off his deposit in that department against a debt owed by him to the savings department. That reason applies with equal force to any attempt to accomplish the payment, in whole or in part, of an obligation arising from a debt due directly to the savings department with an obligation of the commercial department, whatever may be the form of the attempt. The set-off of executions under G. L. c. 235, § 27, is as obnoxious to the reason of those decisions and to the underlying principle on which they rest as a set

off of claims in an action at law under G. L. c. 232. Any such set-off is violative of the basic principle of liquidation of a trust company to the effect that there shall be absolute equality of liability and of dividends among debtors and creditors of the same class, and that one debtor of the savings department shall not pay his debt with a debased coinage as compared with other debtors of that department, nor a creditor of the commercial department get a larger dividend on such claim because at the same time he is a debtor of the savings department.

The time when the commissioner of banks took pcssession of the property and business of the trust company has been established in numerous cases as the date for adjusting the rights of parties and fixing the amounts due to general creditors. Cosmopolitan Trust Co. v. Ciarla, 239 Mass. 32. American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249. Commissioner of Banks in re Prudential Trust Co. 244 Mass. 64, 77. Gerold v. Cosmopolitan Trust Co. 245 Mass. 259, 262. Commissioner of Banks v. Hanover Trust Co. 247 Mass. 347. Although the matter of interest is probably not very large, still a creditor by bringing action cannot, with due regard to the principle of equality and equity governing liquidation proceedings, be permitted to increase his provable claim by the amount of interest due since the date when the commissioner of banks took possession of the trust company over general creditors whose claims are ascertained as of that date.

Since the amount of the claim of the knitting mills must be ascertained as of September 25, 1920, it is not necessary to discuss further the question of interest. See Williams v. American Bank, 4 Met. 317, 323; Thomas v. Minot, 10 Gray, 263; Thomas v. Webster Car Co. 149 U. S. 95, 116, 117; American Iron & Steel Manuf. Co. v. Seaboard Air Line Railway, 233 U. S. 261, 266; National Bank of the Commonwealth v. Mechanics' National Bank, 94 U. S. 437; Billings v. United States, 232 U. S. 261, 285. The divergent principles illustrated by the foregoing decisions have no relevancy to the case at bar.

This cross action is not necessary in order to make founda

tion for enforcement of the liability of stockholders. That already had been done. Commissioner of Banks v. Cosmopolitan Trust Co. 247 Mass. 334.

The liquidation statutes and the facts already set forth distinguished the case at bar from Coburn v. Boston Papier Maché Manuf. Co. 10 Gray, 243, and Watson v. Phoenix Bank, 8 Met. 217, 222.

If there appeared to be any reason for the entry of a judgment, general or special, or with stay of execution, in order to conserve the rights of the knitting mills, doubtless that might be done. Davenport v. Tilton, 10 Met. 320, 330. Loring v. Eager, 3 Cush. 188, 191. Barry v. New York Holding & Construction Co. 229 Mass. 308. No ground was suggested at argument as justification for this course, and we have been unable to think of any.

It was said by the court, speaking through Mr. Justice Holmes in Archambeau v. Platt, 173 Mass. 249, 251, "Apart from statute, we cannot see how it is possible to justify bringing an action which it is admitted never can result in satisfaction from the defendants." Train v. Marshall Paper Co. 180 Mass. 513, 515. There is nothing on this record to indicate that there can ever be further satisfaction on the claim of the knitting mills after the payment of the final dividend in this liquidation proceeding. While we might hesitate to rely on this ground alone, it is worth mentioning among the general considerations attendant upon the case at bar.

The conclusions irresistibly flowing from these considerations are that the knitting mills cannot recover judgment in its cross action for the purpose of setting off its execution against that of the trust company, nor of increasing the amount of its claim by interest since the commissioner took possession of the trust company. Its claim sought to be enforced in this cross action has been already presented to the commissioner of banks and allowed for its full face. Sharing in the assets of the trust company according to its ratable proportion is all the gain that can come to it out of the trust company as far as shown on this record.

The cross action in the case at bar does not fall within any