as do not pay voluntarily. The levying of such an assessment holders of an insolvent state bank. Elson v. Wright, 134 Iowa 634, 112 N. W. 105; State v. Union Stock Yards State Bank, 103 Iowa 549, 70 N. W. 752, 72 N. W. 1076; Tompkins v. Blakey, 70 N. H. 584, 49 Atl. 111. See also Sioux City Stock Yards Co. v. Fribourg, 121 Iowa 230, 96 N. W. 747. Maryland. A court of equity administering the assets of an insolvent bank may, on petition of the receiver, make an order assessing the stockholders and directing the receiver to enforce the same. Mister v. Thomas, 122 Md. 445, 89 Atl. 844. Michigan. The liability of stockholders of banks to depositors may be enforced by means of an assessment to be collected by the receiver. The circuit court is placed in the position occupied by the comptroller of the currency under the National Banking Act, and has jurisdiction to determine the necessity for an assessment and the amount thereof, and this may be done by an ex parte order. Foster v. Row, 120 Mich. 1, 77 Am. St. Rep. 565, 79 N. W. 696. See also Citizens' Sav. Bank v. Person, 98 Mich. 173, 57 N. W. 121. Minnesota. It is provided by Laws 1899, c. 272, that when a receiver has been appointed for a corporation or it has made an assignment for the benefit of creditors, the court shall, upon application of the receiver or assignee, or any creditor who has filed his claim, and after notice and hearing, and upon determining that the ordinary assets of the corporation will not be sufficient to pay its debts and the expenses of the assignment or receivership, levy a ratable assessment upon all parties liable as stockholders for such an amount as the court may in its discretion deem proper, and direct the same to be paid to the assignee or receiver. The act further provides for an order to the assigned or receiver to collect the amount so assessed, unless it is paid voluntarily, and in default of payment the receiver is to bring suit. Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754; Way v. Barney, 116 Minn. 285, 38 L. R. A. (N. S.) 648, Ann. Cas. 1913 A 719, 133 N. W. 801; London & Northwestern American Mortg. Co. v. St. Paul Park Improvement Co., 84 Minn. 144, 86 N. W. 872; Straw & Ellsworth Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co., 80 Minn. 125, 83 N. W. 36; Selig v. Hamilton, 234 U. S. 652, 58 L. Ed. 1518, Ann. Cas. 1917 A 104; Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, Ann. Cas. 1913 D 1292, rev'g judgment 136 Wis. 589, 118 N. W. 190; Converse v. Ætna Nat. Bank, 212 U. S. 567, 53 L. Ed. 654 (mem. dec.), rev'g judgment 79 Conn. 163, 7 Ann. Cas. 75, 64 Atl. 341, 79 Conn. 603, 65 Atl. 1064; Bernheimer · v. Converse, 206 U. S. 516, 51 L. Ed. 1163; Hamilton v. Titus, 185 Fed. 140; Hamilton v. Simon, 178 Fed. 130; Converse v. Ayer, 197 Mass. 443, 84 N. E. 98. Gen. St. 1894, c. 76, provided a similar remedy. Hanson v. Davison, 73 Minn. 454, 76 N. W. 254; Hale v. Hardon, 95 Fed. 747, rev'g judg ment 89 Fed. 283. Former stockholders may be assessed under this provision in respect to debts antedating the transfers of their shares. Selig v. Hamilton, 234 U. S. 652, 58 L. Ed. 1518, Ann. Cas. 1917 A 104. The statute provides for notice to creditors by publication. Hale v. Calder, 113 Fed. 670. Common-law proof of service of notice of hearing is not necessary in an action by the receiver to recover the assessment. The stockholders are bound by the order levying the assessment without personal service, and are represented by the corporation, and hence are bound by the roll and its recitals, and hence proof of service by affidavit filed in the parent suit is suf is but preliminary to and the foundation for the suits subsequent ficient. Hamilton v. Simon, 178 Fed. 130. Notice of the assessment after it is made is not required, and no demand is necessary to enable the receiver to sue. Hamilton v. Simon, 178 Fed. 130. Nebraska. Before the individual liability imposed upon stockholders in banks by the Nebraska Constitution can be enforced, the amount of the corporation's assets and liabilities, and the amount necessary to be paid by each stockholder, must be judicially ascertained, and an assessment levied on the stock. Goss v. Carter, 156 Fed. 746; Francis v. Hazlett, 192 Mass. 137, 116 Am. St. Rep. 230, 78 N. E. 405; German Nat. Bank of Lincoln v. Farmers' & Merchants' Bank, 54 Neb. 593, 74 N. W. 1086. See also Hamilton Nat. Bank v. American Loan & Trust Co.,72 Neb. 81, 100 N. W. 202; Id. 66 Neb. 67, 92 N. W. 189, 190; Hastings v. Barnd, 55 Neb. 93, 75 N. W. 49; State v. German Sav. Bank, 50 Neb. 734, 70 N. W. 221; Farmers' Loan & Trust Co. v. Funk, 49 Neb. 353, 68 N. W. 520. A judicial ascertainment of the corporate debts must be had before an action by the receiver to enforce the constitutional liability of the stockholders of an insolvent bank may be maintained. This ascertainment may be had in the action in which the receiver is appointed by the presentation and allowance of claims, provided the petition is sufficient and the order appointing the receiver contemplates such a course, and provided the bank is personally served with summons in such action or appears, but not otherwise. Holcomb v. Tierney, 79 Neb. 660, 113 N. W. 204. North Carolina. The liability of the stockholders in an insolvent bank for which a receiver has been appointed should be enforced by the receiver in the original action or creditors' bill in which the receiver was appointed. The usual and better practice is to have an assessment upon the stockholders made by the court upon an ascertainment from the report of the receiver, and notice issued to each stockholder to show cause why such an assessment should not be enforced. Smathers v. Western Carolina Bank, 135 N. C. 410, 47 S. E. 893. Ohio. Under Act April 16, 1900, 46 Ohio Laws, p. 359, Page & Adams Ann. Gen. Code, §§ 8690-8697, the li ability is enforced by means of an assessment in a creditors' suit and the court is authorized to appoint a receiver to collect the amounts found due from the stockholders. Zieverink v. Kemper, 50 Ohio St. 208, 34 N. E. 250; Marriott v. Columbus, S. & H. R. Co., 16 Ohio Dec. (N. P.) 135; Irvine v. Baker, 225 Fed. 834; Blackburn v. Irvine, 205 Fed. 217, aff 'g 198 Fed. 360; Irvine v. Elliott, 203 Fed. 82; Irvine v. Putnam, 167 Fed. 174; Burr v. Smith, 113 Fed. 858; Middletown Nat. Bank. v. Toledo, A. A. & N. M. Ry. Co., 113 Fed. 587, 127 Fed. 85, 197 U. S. 394, 49 L. Ed. 803; Pfaff v. Gruen, 92 Mo. App. 560, 69 S. W. 405; Shipman v. Treadwell, 208 N. Y. 404, 102 N. E. 634, aff'g 150 N. Y. App. Div. 57, 133 N. Y. Supp. 970, rehearing denied 209 N. Y. 545, 102 N. E. 1113. See also Baltimore & O. R. Co. v. Smith, 54 Ohio St. 562, 44 N. E. 240, aff'g 4 Ohio Cir. Dec. 356; Id. 48 Ohio St. 219, 31 N. E. 743. The third section of the act provides that the act shall ap ply to pending actions. Irvine v. Baker, 225 Fed. 834; Blackburn v. Irvine, 205 Fed. 217, aff 'g 198 Fed. 360; Irvine v. Elliott, 203 Fed. 82. Washington. In the absence of any statutory provision as to the method of enforcing the double liability of stockholders in banks, it is held that it can only be enforced by a receiver after an accounting of the assets and liabilities of the bank has been had ly to be brought for its collection,22 and under some statutes, at least, the proceedings are summary and informal in character.23 The corporation represents the stockholders, and they need not be made parties or notified of the proceedings in order to be bound by the assessment unless the statute so provides.24 Some statutes, however, require personal service on resident stockholders and notice by publication to nonresident stockholders.25 Generally if a stockholder is served or appears, the assessment, as to him, may not only be declared, but enforced in the parent suit.26 and an assessment has been levied See also § 4237, infra, and the cases there cited. 22 Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. The action to collect the assessment "is a secondary proceeding based upon a previous action in which the character of the corporation and the assessibility of its stock have been ju dicially determined." Neff v. Lamm, 99 Minn. 115, 108 N. W. 849. 23 The proceedings for levying an assessment under the Minnesota statute are summary and informal, and are not controlled by all the forms of ordinary judicial procedure. There are no formal pleadings, and the stockholders are not entitled to a jury trial of the questions involving the authority of the court to order the assessment. Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. The court is not required to make findings of fact upon which to base the order of assessment. Straw & Ellsworth Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co., 80 Minn. 125, 83 N. W. 36. a 24 See § 4237, infra. 25 The Ohio statute contains such requirement. Irvine V. Baker, 225 Fed. 834; Mottinger v. Hendricks, 208 Fed. 824; Blackburn v. Irvine, 205 Fed. 217, aff'g 198 Fed. 360; Irvine v. Elliott, 203 Fed. 82. See also Burr v. Smith, 113 Fed. 858. 26 Irvine v. Baker, 225 Fed. 834; Mottinger v. Hendricks, 208 Fed. 824; Blackburn v. Irvine, 205 Fed. 217, aff'g 198 Fed. 360; Irvine v. Elliott, 203 Fed. 82. See also Burr v. Smith, 113 Fed. 858; Baltimore & O. R. Co. v. Smith, 54 Ohio St. 562, 44 N. E. 240, aff'g 4 Ohio Cir. Dec. 356; Id. 48 Ohio St. 219, 31 N. E. 743. If property belonging to such stock But as against stockholders who are not personally served and do not appear, the assessment can only be enforced by means of ancillary suits brought against them by the receiver,27 in which the stockholders may present all matters available to them in defense.2 28 In determining the amount of the assessment the court is generally required to take into consideration the probable indebtedness, the probable expense of the receivership, and the probable solvency or insolvency of the stockholders, 29 and generally may hear and consider such evidence, by affidavit or otherwise, as is pertinent to those questions.30 An appellate court will interfere with an assessment only holder is found within the jurisdiction of the court, either before or after judgment in the original action, it may be attached or sequestered in the original action, and a separate action against him to reach it is neither necessary nor proper. Hanson v. Davison, 73 Minn. 454, 76 N. W. 254. 27 Irvine v. Baker, 225 Fed. 834; Blackburn v. Irvine, 205 Fed. 217, aff 'g 198 Fed. 360. If a stockholder's liability is not enforced in the original action because the court had no jurisdiction of him or his property, or for other cause, an ancillary action may be maintained against him for that purpose by the receiver. Hanson v. Davison, 73 Minn. 454, 76 N. W. 254. 29 Minnesota Gen. St. 1913, § 6646, provides that the court shall receive and consider such evidence by affidavit or otherwise as may be presented upon the following points: (1) The nature and probable extent of the indebtedness of the corporation; (2) the probable expense of the receivership; (3) the probable amount of available assets; and (4) the persons liable as stockholders, the nature and extent of their liability, and their probable solvency or responsibility, and thereupon determine the propriety and necessity of the proposed assessment. Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754; London & VII Priv. Corp.-4 Northwestern American Mortg. Co. v. St. Paul Park Improvement Co., 84 Minn. 144, 86 N. W. 872. There can be but one assessment. Marriott v. Columbus, S. & H. R. Co., 16 Ohio Dec. (N. P.) 135. The court must determine the difference between the liability of the corporation and the value of its assets, and hence must necessarily determine the validity and amount of the respective claims of the creditors. It is within the discretion of the court to find the amount of the deficiency before the actual application of the assets to the payment of the claims of creditors. Shuey v. Adair, 24 Wash. 378, 64 Pac. 536. 30 See Bennett v. Thorne, 36 Wash. 253, 68 L. R. A. 113, 78 Pac. 936. Minnesota Gen. St. 1913, § 6646, provides that the court shall receive and consider such evidence by affidavit or otherwise as may be presented. Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. This provision does not compel the court to receive anything but competent evidence, and does not deprive an interested party of any rights he may have to insist that proper and sufficient proof be made as to the matters involved. Straw & Ellsworth Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co., 80 Minn. 125, 83 N. W. 36. This provision deals with a rule of evidence, and the fact that it author 31 in those cases in which it is palpably beyond all reasonable necessity.3 When the assessment is paid, the money is applied under the order of the court to the payment of the debts of the corporation and the expenses of the proceeding,32 and any surplus remaining is returned. to the stockholders.33 In some jurisdictions it is held that where the liability is enforced in a creditor's suit for the benefit of the plaintiff and all other creditors who may come in, the proper practice is to enter judgment against all the stockholders for the full amount of their liability, and then to make such assessments from time to time as may be found to be necessary.33a § 4224. Assessment by public officer. The statutory liability. of stockholders of national banks is enforced by means of an assessment levied by the comptroller of the currency and collected by a receiver, who is authorized to bring suit for that purpose, if necessary.34 In some jurisdictions the statutory liability of stockholders in state banks is enforced by means of an assessment levied by the superintendent of banks or other similar officer, who is given the right to collect the amount assessed against each stockholder by suit in case the same is not paid.35 Under such a statute it has been held that it is for the commissioner to decide when it is necessary to enforce such liability izes the court to receive affidavits in support of the application does not deprive the stockholders of their property without due process of law. Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754; Straw & Ellsworth Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co., 80 Minn. 125, 83 N. W. 36, followed in London & Northwestern American Mortg. Co. v. St. Paul Park Improvement Co., 84 Minn. 144, 86 N. W. 872. Affidavits by the receiver and his attorney and by the attorney for certain of the corporate creditors, which tended to show facts essential to the authority of the court to order the assessment, and schedules filed in bankruptcy proceedings against the corporation, showing the claims filed in such proceedings, the names of the creditors, and the unpaid amount of each claim were held to be admissible in Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. 31 Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. 32 Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754. 33 Finch, Van Slyck & McConville v. Vanasek, 132 Minn. 9, 155 N. W. 754; Straw & Ellsworth Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co., 80 Minn. 125, 83 N. W. 36. 33a Man v. Boykin, 79 S. C. 1, 128 Am. St. Rep. 830, 60 S. E. 17. 34 See § 4225, infra. 35 Arkansas. Acts 1913, p. 462, approved March 3, 1913; Davis V. Branch, 202 S. W. 705; Davis v. Moore, 130 Ark. 128, 197 S. W. 295. The duty of enforcing the liability is imposed upon the bank commissioner independently of the chancery court, and an |