Defenses to this class of actions instituted by a receiver in a statutory proceeding are not, as a rule, available. Thus, it is no defense that the entire stock had not been subscribed;' nor is error in the appointment; nor fraudulent acts of the officers of the corporation; nor the fraudulent character of the corporation, or misrepresentation in procuring the subscription; nor fraud in procuring the appointment of the receiver; nor that the incorporation is not indebted; or that its assets have not been collected;" nor that fraudulent claims have been allowed. But the shareholder is not liable to the receiver if he was not liable to the corporation; nor can the receiver collect subscriptions in a foreclosure case if the bonds are invalid." § 78. Suits against stockholders on statutory liability. In general the statutory liability of stockholders is a liability to the creditors of the corporation and a receiver of an insolvent corporation in the absence of statutory power has no authority to enforce such liability, and this inability is based upon the fact that such liability is not a corporate asset and does not go to the receiver as such." Upon the same principle the receiver has no Borst, 31 N. Y. 435; Tracy v. First Nat. Bank, 37 N. Y. 523; Weeks v. Love, 50 N. Y. 571; 08good v. Laytin, 5 Abb. Pr. N. S. 1; Briggs v. Penniman, 8 Cow. 387; Mills v. Stewart, 41 N. Y. 384; Morgan v. New York & A. R. Co. 10 Paige, 290. Ohio: Clarke v. Thomas, 34 Ohio St. 46; Jewett v. Valley R. Co. 34 Ohio St. 601. Rhode Island: Tobey v. Russell, 9 R. I. 58; Atwood v. Rhode Island Ag. ricultural Bank, 1 R..I. 376. Washington: Elderkin v. Peterson, 8 Wash. 674. 1 Stillman v. Dougherty, 44 Md. 380; Ruggles v. Brock, 6 Hun, 164. Stewart v. Lay, 45 Iowa, 604. Stewart v. Lay, 45 Iowa, 604; Ruggles v. Brock, 6 Hun, 164. 4 Litchfield Bank v. Church, 29 Conn. 137; Schoonover v. Hinckley, 48 Iowa, 82. Schoonover v. Hinckley, 48 Iowa, 82; Stewart v. Lay, 45 Iowa, 604. Schoonover v. Hinckley, 48 Iowa, 82. Stark v. Burke, 9 La. Ann. 341. But see Chandler v. Keith, 42 Iowa, 99; Mills v. Scott, 99 U. S. 25, 25 L. ed. 294. 8 Foote v. Glenn, 52 Fed. Rep. 529. Billings v. Robinson, 94 N. Y. 415; Winters v. Armstrong, 37 Fed. Rep. 508. 10 Farmers' Loan & T. Co. v. San Diego Street Car Co. 49 Fed. Rep. 188. 11 Arenz v. Weir, 89 Ill. 25 (statutory); Butler v. Walker, 80 Ill. 345; Liberty Female College Asso. v. Watkins, 70 Mo. 13; Billings v. Robinson, 94 N. Y. 415; Cutting v. Damerel, 88 N. Y. 410; Cuykendall v. Corning, 88 N. Y. 129; Jacobson v. Allen, 20 Blatchf. 525; Lane v. Morris, 8 Ga. 468; Davis v. Gray, 83 U. S. 16 Wall. 203, 21 L. ed. 447; Wright v. McCor right to enforce the individual liability of a partner to the firm in behalf of the firm creditors,' or his assignee. § 79. Suits to invalidate liens. In the absence of special statutory powers, and in the absence of a conveyance to him from the mortgagee, a receiver cannot maintain a suit to determine the validity of liens of parties in, and parties out of possession, as against the lien of a mortgage in the foreclosure of which he is appointed, where neither the mortgagee nor mortgagor is a party. If complainant claims the legal title to real estate he cannot, in a court of equity, sustain an action against persons in possession claiming adversely; nor can he mack, 17 Ohio St. 86; Farnsworth v. Wood, 91 N. Y. 308. Cf. Chemical Nat. Bank v. Colwell, 132 N. Y. 250; Story v. Furman, 25 N. Y. 214. 'Wallace v. Milligan, 110 Ind. 498. The court in Wincock v. Turpin, 96 Ill. 135, says: "It may be a state of facts might exist which would authorize a court of equity to bring before it all the stockholders and depositors and determine their rights and adjust equities, marshall the fund and distribute it pro rata, but no such case is made by this bill; and until such a case shall be made we must leave the depositors to pursue their remedies under the law. We have held in a number of cases that as the right is given by statute the remedy is at law. Culver v. Third Nat. Bank, 64 Ill. 528; Corwith v. Culver, 69 Ill. 502; Tibballs v. Libby, 87 Ill. 142; Arenz v. Weir, 89 Ill. 25; McCarthy v. Lavasche, 89 Ill. 270; Fuller v. Ledden, 87 Ill. 310. The authorities upon this subject in other jurisdictions are not uniform. If the liability was joint then equity would be the proper forum, as was held in Eames v. Davis, 102 Ill. 350. Where the liability creates a common fund for the benefit of all creditors entitled to share in it, and the secur ing of a ratable distribution of it among all such creditors, it is a proper case for equitable jurisdiction. Merchants' Bank v. Stevenson, 5 Allen, 401; Crease v. Babcock, 10 Met. 532; Briggs v. Penniman, 8 Cow. 387; Hornor v. Henning, 93 U. S. 228, 23 L. ed. 879. Low v. Buchanan, 94 Ill. 81; Har per v. Union Mfg. Co. 100 Ill. 225. And equitable jurisdiction may also be maintained on the ground of avoiding a multiplicity of suits. Some courts have given creditors in case of a personal statutory liability of stockholders a concurrent remedy by suit at law or suit in equity for the enforcement of the liability. Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Van Hook v. Whitlock, 3 Paige, 409; Norris v. Johnson, 34 Md. 485; Perry v. Turner, 55 Mo. 418; Adkin v. Thornton, 19 Ga. 325; Robinson v. National Bank, 95 N. Y. 637. Harland v. Bankers' & M. Teleg. Co. 32 Fed. Rep. 305; Frost v. Spitley, 121 U. S. 556, 30 L. ed. 1012; Alexander v. Pendleton, 12 U. S. 8 Cranch, 462, 3 L. ed. 624; Peirsoll v. Elliott, 31 U. S. 6 Pet. 95, 8 L. ed. 332; Orton v. Smith, 59 U. S. 18 How. 263, 15 L. ed. 393; Crews v. Burcham, 66 U. S. 1 Black, 352, 17 L. ed. 91; Ward v. maintain a bill for an accounting for damages suffered by the mortgagor, growing out of a breach of contract made with him, where it is claimed that the mortgage covered the property embraced in ench contract.' But a receiver appointed under the provisions of the New York Code of Civil Procedure was ordered to commence a proceeding to determine what bonds issued by the company were secured by the mortgage, and what bonds, if any, were to be excluded from participation in the proceeds, and also to determine the ownership of such bonds, and the validity of others, it was held that the receiver's action was sustainable as a proceeding in equity. Where the receiver desires to test the validity of a levy upon the receivership property, his proper course is to bring an independent action to set aside the levy, and not by motion for a rule on the sheriff to show cause. The reason of this rule is based upon the fact that neither the receiver, the creditor, nor the sheriff, was a party to the proceeding in which the receiver was appointed.' § So. Suit on debtor's bond, replevin, distraint, etc. The receiver of an insolvent debtor has no right of action on an official bond of the debtor and his sureties, the general rule being, as we have seen, that a receiver has no right of action other than is vested in the debtor himself, except where he sues as the representative of creditors. Nor has he a right to maintain a suit in replevin for personal property mortgaged by the judgment debtor, and reduced to possession by the mortgagee before the commencement of the proceedings in which the receiver is appointed. His right to distrain has been recognized, and he may appoint a bailiff for that purpose, but he connot distrain and attach at the same time." An action cannot be sustained by a receiver against an assignee Chamberlain, 67 U. S. 2 Black, 430, 17 Hubbell v. Syracuse Iron Works, 42 Andrews V. Paschen, 67 Wis. 413. And see Gelpeke v. Milwaukee & H. 4State, Shepard, v. Sullivan, 120 of the judgment debtor under an assignment for the benefit of creditors to recover damages resulting to the judgment debtor from' failure of the assignee to properly discharge his duty as such assignee.' § 81. Defenses to actions brought by receivers-set-off. The general rule, in all actions brought by a receiver is that the defendant may interpose such defenses as might have been available to him had suit been instituted by the person or corporation for whose estate the receiver is appointed. Thus in an action by the receiver the defendant may interpose a counterclaim or set-off,' provided the right of set-off accrued before the receiver's appointment, and the respective rights of action are of the same nature, and the receiver sues as the representative of the debtor and not creditors, and where the claim of defendant is free from fraud,' and if the demands are liquidated. The debts 'La Follett v. Akin, 36 Ind. 1. 2 Cox v. Volkert, 86 Mo. 505; Colt v. Brown, 12 Gray, 233; Brooks v. Bigelow, 142 Mass. 6; Moise v. Chapman, 24 Ga. 249; Litchfield Bank v. Peck, 29 Conn. 384; Clarke v. Hawkins, 5 R. I. 219; Van Wagoner v. Paterson Gaslight Co. 23 N. J. L. 283; Chase v. Petroleum Bank, 66 Pa. 169; Hyde v. Lynde, 4 N. Y. 387; Thomas v. Whallon, 31 Barb. 172; Williams v. Babcock, 25 Barb. 109; Devendorf v. Beardsley, 23 Barb. 656; Berry v. Brett, 6 Bosw. 627; Clark v. Brockway, 3 Keyes, 13. Armstrong v. Warner, 49 Ohio St. 376, 17 L. R. A. 466; Hade v. McVay, 31 Ohio St. 231; Lindsay v. Jackson, 2 Paige, 581: Com. v. Shoe & L. Dealers' F. Ins. Co. 112 Mass. 131; Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059; Holbrook v. American F. Ins. Co. 6 Paige, 220; Colt v. Brown, 12 Gray, 233; Re Van Allen, 37 Barb. 225; State Bank v. Bank of New Brunswick, 3 N. J. Eq. 266; Re Middle District Bank, 1 Paige, 585; Cook v. Cole, 55 Iowa, 70; Berry v. Brett, 6 Bosw. 627; Davis v. Stover, 58 N. Y. 473; Com. v. Phanix Bank, 11 Met. 129; Scammon v. Kimball, 92 U. S. 362, 23 L. ed. 483. As to the rule in mutual insurance companies see Lawrence v. Nelson, 21 N. Y. 158; Hillier v. Allegheny County Mut. Ins. Co. 3 Pa. 470. But see Berry v. Brett, 6 Bosw. 627; Vanatta v. New Jersey Mut. L. Ins. Co. 31 N. J. Eq. 15. And savings banks see Osborn v. Byrne, 43 Conn. 155; Stockton v. Mechanics' & L. Sav. Bank, 32 N. J. Eq. 163. 4 Smith v. Mosby, 9 Heisk. 501; Lanier v. Gayoso Sav. Inst. 9 Heisk. 506; United States Trust Co. v. Harris, 2 Bosw. 75; Cook v. Cole, 55 Iowa, 70; Smith v. Felton, 43 N. Y. 419; Bradley v. Angel, 3 N. Y. 475; Smith v. Fox, 48 N. Y. 674; Newcomb v. Almy, 96 N. Y. 308; Van Dyck v. McQuade, 85 N. Y.616;Jordan v.Sharlock,84 Pa.366. 5 Williams v. Traphagen, 38 N. J. Eq. 57; Singerly v. Fox, 75 Pa. 112. "Osgood v. Ogden, 4 Keyes, 70; Clark v. Brockway, 3 Keyes, 13; Osgood v. Maguire, 61 N. Y. 524. 'Gillet v. Phillips, 13 N. Y. 114. Olyphant v. St. Louis Ore & S. Co. 39 Fed. Rep. 308. must, however, be due to and from the same persons, at least equitably.' The defendant in an action by a receiver is entitled to a set-off of any debts due to him by the insolvent, at the time of the stopping payment by the insolvent, and the appointment of a receiver as a rule does not change the relationship of the parties. The receiver will not be permitted to allow as a partial accord and satisfaction an uncompleted agreement of an insolvent made prior to his suspension,' and the receiver has no right to set up as a defense to the claim of a judgment creditor, matters which might have been pleadable in behalf of the corporation against the recovery of a judgment. In a suit brought by a receiver it is no defense that he has not filed a bond, where the decree of appointment does not make the giving of such bond a condition to his appointment, nor can the validity of the appointment of the receiver be questioned. The sufficiency of the allegations in regard to the time and place, and court in which the receiver was appointed cannot be raised on a motion in arrest of judgment.' 'Re Van Allen, 37 Barb. 225; Newcomb v. Almy, 96 N. Y. 308; Dale v. Cooke, 4 Johns. Ch. 11; Barber v. Spencer, 11 Paige, 517; Mollan v. Griffith, 3 Paige, 402. *In Re Middle District Bank, 1 Paige, 585, it was held the debt may fall due after the act of insolvency and be a proper matter of set-off. See also Van Wagoner v. Paterson Gaslight Co. 23 N. J. L. 283. The general rule is that in a suit by the receiver the defendant has a right to all defences, or |