(dissenting.) This action is brought to compel an accounting of the moneys received by defendant’s intestate, as liquidator of the Croton River Rational Bank. The bank in May, 1874, by consent of two-thirds of its stockholders under the provision of the national banking act, went into voluntary dissolution, and the defendant’s intestate acted as liquidator up to the time of his decease. One dividend, of 25 per cent., was paid by him to the stockholders. The plaintiff claims by assignment from an owner of 1,640 shares of the total 2,000 of the bank at the time it went into liquidation, and the suit is brought on behalf of herself and all other stockholders. I think the action is properly brought by a stockholder, and not by the bank. After proceedings for voluntary liquidation, the corporate existence of the bank doubtless continues for the purpose of suing or being sued by others. Bank v. Insurance Co., 104 U. S. 54. But, as between the liquidator and the stockholders, that rule does not apply. The liquidator was not an ordinary agent of the bank, who was to collect and turn over moneys to his principal. His duty was to convert the assets into money, and, having satisfied the claims of creditors, distribute the surplus to the stockholders according to their holdings, not to pay such surplus to the bank as an existing corporation. The liquidator was therefore trustee, and the oestuis que trustent were not the corporation, but the stockholders. Assuming, therefore, that the action can be maintained, I think the judgment rendered by the trial court cannot be sustained. The plaintiff’s remote assignor, at the time of the liquidation, was indebted to the bank. This indebtedness was not a lien on the stock. But from the moment the bank went into liquidation he was not in the position of a stockholder in a continuing or “going” corporation. His only right was to share in the distribution of the assets, and to such share the amount of his debt was a proper offset. This proposition has properly been conceded by the plaintiff’s counsel. It is therefore to be determined whether there would be any sum due.to the plaintiff on account of the liquidator’s collections, over and above the debt due from her assignor. It is unnecessary, for the purposes of this appeal, to review all the items of the account. It is enough to' say that if the liquidator is charged with the note of one Howe, indorsed by himself and discounted by the bank, some amount will be due to the plaintiff. This note the trial court found was a part of the assets of the bank in the hands of the liquidator. It also found that it had never been paid, and that the liquidator was not guilty of negligence in not collecting it. This position cannot be sustained. Defendant’s testator was the indorser of the note. He was responsible for its payment, in case the maker failed to pay. If demand and notice were necessary to charge him, which we think not, then he was negligent in failing to have the note protested. His failure to protest the note must be considered as a waiver of notice, if notice was necessary. In any view, he was liable for the amount of the note, which has now become outlawed. As to the other items with which it is claimed the liquidator should have been charged, it is unnecessary to examine them, as the character of these charges, and the evidence concerning them, may be varied upon the next trial. . For the reason given, the judgment should be reversed and a new trial ordered, costs to abide event.