the law recognizes that a stockholder has certain rights in the corporation. One of those is to bring a suit in equity to enforce a right of the bank, when the controlling officers of the bank refuse to enforce the right, either because they are the wrong-doers or for some other reason. But it is plain that in the latter case he sues in right of the bank, and in such a suit the bank is a necessary party. The fruits of the litigation do not belong to the stockholder, but to the bank. If this distinction had been kept clearly in view no confusion would have resulted, but the stockholder in this latter suit has been allowed to mingle rights which belonged to him as an individual with rights which he was asserting in the name of the bank. But it is possible that in such a litigation a court could by its decree separate those rights and give one kind of a judgment to the stockholder as an But the principle is plainly correct. But if the statute gives the stockholder a remedy that is another matter. Buell v. Warner, 33 Vt. 570. 3 Smith v. Rathbun, 22 Hun, 150; Brinckerhoof v. Bostwick, 99 N. Y. 185; Wallace v. Lincoln Sav. Bank, 89 Tenn. 630; Ackerman v. Halsey, 37 N. J. Eq. 356; Nelson v. Burrows, 9 Abb. N. C. 280. 4 Dewing v. Perdicaries, 96 U. S. 193, as to a creditor's suit, to which the same rule must apply, if the suit is allowed. Chester v. Halliard, 34 N. J. Eq. 341. 5 Hand v. Atlantic Nat. Bank, 55 How. Pr. 231. A case that presents a remarkable confusion of ideas is found in Utah. Warren v. Robison, 57 Pac. R. 287. The case was a suit by creditors and stockholders against the directors, charging negligence in making loans and managing the affairs of the bank, whereby its funds were dissipated. The suit was not, of course, one by depositors alleging the reception of deposits while the bank was insolvent. Therefore it was a suit by the creditors and stockholders in right of the bank. To such a suit the bank was a necessary party. The receiver was a party, but he had been discharged. And although the point is made in the briefs, the court does not even notice it. The opinion makes a remarkable suggestion, and that is that the stockholders and creditors may have been guilty of such contributory negligence as to defeat their recovery. The learned court evidently supposed that the stockholders and creditors were suing for being run down by a railroad train. Contributory negligence in such a case as this is impossible. The plaintiffs had no control of the corporation. The opinion is by Bartch, J., who has won a deserved immortality. individual and another kind of a judgment to him for the corporation. § 81. Suits by bank assignees and receivers against officers. The rights of action which the bank has pass to its assignee or receiver. He, of course, can enforce whatever right the bank could enforce, against both officers and third persons. Even though the statute declares that by certain acts the bank is dissolved, the suit still remains to the bank,3 and a fortiori to the receiver. Whatever rights are given to the corporation by law or by statute, such as the bank's rights to recover illegal dividends, can be enforced by the receiver. But it will happen that the receiver may be appointed in a suit brought by the stockholders," when the court will take cognizance of the whole matter, and in the one suit settle all the rights of the corporation involved by proper proceedings in that action. The corporation would be a necessary party to such suit. But after the receiver was appointed he could proceed to enforce the corporation's rights either in ancillary proceedings in the same action or in actions at law. In suits either by the representative of the corporation or by the corporation itself, there is no necessity of joining all the tort-feasors. To such suits the creditors are not proper parties. As to a compromise of such claims by the receiver, we give below a case.10 § 82. Statutory liability of officers for debts.-There are some statutes which make officers liable for debts of the corporation. Such a liability is penal in its nature, to some extent, and does not arise out of contract. But it will be enforced in another state. The liability created is joint, and a director is liable even though he dissented. For the same reason a release of one director liable releases all.1 But the creditor need not join the personal representative of a deceased director," and need only join in the suit those who can be reached by process. In such case the action of debt lies against the officer. The officer liable cannot anticipate the creditor by buying up claims against the bank, since they are not proper matters of set-off, although it is held in one case that a claim against the bank by an officer can be set off by a claim against him for negligence. § 83. Liability of officers to creditors. We have already examined the liability to creditors established by statute in the last section. We come now to those rights which the creditor, without the aid of a statute, can enforce against the officers of the corporation. The creditor can sue the officer of the bank who commits a tort against him. But this action lies not because he is a creditor, for it would lie in favor of any person injured by a tort.1 In the next place, some courts recognize that a creditor has certain rights which he can enforce against the officers of a corporation, where he sues in right of the corporation. Still other courts maintain the doctrine that a creditor can sue the officers of a corporation for negligence in the management of the cor 1 Sturges v. Burton, 8 Ohio St. 215; Gregory v. German Bank, 3 Colo. 333; Ashley v. Frame, 45 Pac. R. 927. Contra, Banks v. Darden, 18 Ga. 318; Hargroves v. Chambers, 30 Ga. 580. But see the next case cited. 2 Huntington v. Attrill, 146 U. S. 657. 3 Banks v. Darden, 18 Ga. 318. 4 Robinson v. Bealle, 20 Ga. 275. 5 Hargroves v. Chambers, 30 Ga. 580. 6 White v. How, 3 McLean, 111; 8. C., Fed. Cas. No. 17,548. 7 Bullard v. Bell, 1 Mason, 243, agai st a stockholder on a statutory liability. 8 St. Louis School Dist. v. Broadway Bank, 12 Mo. App. 104. Contra, Ahl v. Rhodes, 84 Pa. 319. 1 The officer cannot shelter himself by saying that his act was outside of his duties as an officer. Mt. Vernon Bank v. Porter, 52 Mo. App. 244. This rule would apply also to suits by the bank, or its receiver, or by the stockholders. poration. The national bank act introduces further complication, which will be noticed in proper sequence. No subject is rendered more obscure on account of loose language used by the courts, but it is believed that the principles which underlie the subject are plain, and ought to be easy of application. 84. Relation of officers of a corporation to creditors. Since the officer is merely an agent of the corporation he stands in the same relation to a corporation's creditor that the agent of an individual stands in relation to that individual's creditor, where the agent has managed the business for the individual who is his principal. Such is the plain proposition, and although the courts have befogged the subject such the relation must be. Such a situation discloses no fiduciary relation between the officer and the creditor, and none exists. But just as the creditor of an individual can sue that individual's agent for a fraud perpetrated by the agent, or for a malicious act amounting to a tort, so the creditor of the corporation can sue the corporation's officer for a tort perpetrated by him against the creditor. The common instance of this action is one for fraudulent misrepresentations or deceit. But the law also recognizes that the capital stock and assets of a corporation constitute the security of the corporation's unsecured creditor, just as the debtor's property is the sole security of the debtor's unsecured creditor; and since the officers of the corporation have no right to absorb or give away this capital stock or assets, where they commit culpable acts which cause loss to the corporation, the creditor can follow by a creditor's bill that capital stock or assets into the hands of any one who is not a purchaser for value, or, if the corporation's property has so passed, may hold those who were guilty of wrongful conduct in disposing of the corporation's property. This is simply the case of following by creditor's bill the assets of the debtor, or, if they cannot be followed, then it is the case of subjecting the debtor's rights of action against his wrongly acting agent to creditor's bill. These seem to be the correct rules of law applicable to the subject. But courts have obscured the subject so much by fuliginous expressions in regard to bank directors being trustees for the creditors, and the capital stock of a corporation being a trust fund, that it is a devious work to find one's way among the cases. § 85. Liability to creditors for fraud.- When a bank officer makes a false and fraudulent representation to a man, whereby he becomes a creditor of, or a depositor in, a worthless or insolvent bank, and the creditor relies upon that fraudulent statement, the officer must respond in damages in an action of deceit.' But fraud may consist of a representation made either by words or by conduct. If bank officers, who control a bank, keep its doors open when it is insolvent, they thereby represent to every one who comes to the bank that it is competent to do business and a safe place to deposit money. This latter case is simply the former case, but the 1 Seale v. Baker, 70 Tex. 283; Giddings v. Baker, 80 Tex. 308; Prescott v. Haughey: 65 Fed. R. 653; Solomon v. Bates, 118 N. C. 311. Since this liability exists against the director, not as officer, but as an individual, a forfeiture of the bank charter is wholly immaterial. Hargroves v. Chambers, 30 Ga. 580. Such fraudulent representations may be contained in published reports. Merchants' Nat. Bank v. Thomas, 28 Wkly. Law Bul. 164. It has been said that the bank itself is not liable for the directors' false statements as to the condition of the bank, where a man loaned money on the stock of the bank. Merchants' Nat. Bank v. Armstrong, 65 Fed. R. 932. Whether a director would be liable would depend in such case upon whether the party had a right to rely on the statement as one to himself. The director is liable even though he resided away from the bank's location. Houston v. Thompson, 29 S. E. R. 827. If the director attests a report he is liable to one who acted on it, regardless of his knowledge. Gerner v. Mosher, 78 N. W. R. 384. 2 St. Louis & S. F. Ry. Co. v. Johnston, 133 U. S. 566, and the cases cited therein; Craigie v. Hadley, 99 N. Y. 131; Townsend v. Williams, 117 N. C. 330; Miller v. Howard, 95 Tenn. 407; Delano v. Case, 17 Bradw. 531; Higgins v. Hayden, 73 N. W. R. 280. See under a statute, Cummings v. Spannhorst, 5 Mo. App. 21; Cummings v. Winn, 89 Mo. 51. The statute may make a failure within thirty days prima facie evidence of an intent to defraud. Am. T. & S. Bank v. Manuf. Co.. 150 Ill. 336. Since such a statute is simply declaratory of the common law, it is nothing but an instance of judicial density to call it a penalty, as it is |