¶1Opinion by
¶2This is a proceeding under the statute which authorizes the court, on motion and after notice, to order execution against any of the stockholders of a corporation to an extent equal to the amount of stock unpaid, in case wherejexecution has been issued against the property or effects of the corporation and no property can be found whereon to levy. R. S. Art. 595 ; P. D. Art. 5960.
¶3One of the defenses was that the defendant corporation, the Drover’s & Planter’s bank of the city of Denison, in July 1878, being insolvent,- at the request of some of its creditors, including plaintiff Collins, executed an assignment conveying to one Hanna “all assets whatsoever belonging to said bank,” for the benefit of its' creditors, that all the creditors assented to said assignment; that the plaintiff availed himself fully of its benefits and that Hanna was still proceeding to execute *47the same, having assets in his hands unadministered, it being yet impossible to tell what amount would be received by the creditors. ' The evidence was that the assignee had paid a dividend of 45 per cent, to the creditors including the plaintiff and that it was after receiving the dividend that plaintiff’ Collins sued on the balance of his claim and procured his j ndgment
¶4Our opinion is that the terms of the assignment, ‘"all assets whatsoever belonging-to said bank,” included whatever was due from stockholders for stock unpaid, ánd that by the deed of assignment the right to recover of stockholders what was so due by them rested in the assignee Ilanna. Having accepted a dividend under this assignment, the plaintiff' could not thereafter treat it as invalid and appropriate to his exclusive benefit assets which belonged to the assignee for the* benefit of all the creditors alike. Thompson’s Liability of Stockholders, Sec. 31-0-341.
¶5The statute provides the judgment creditor of a corporation with an efficient remedy against stockholders whose stock is unpaid, but was not designed to interfere with the operation of a valid assignment of an insolvent corporation covering its entire assets and therefore covering what is due from stockholders as well as others.
¶6The court iu its charge took a different view of the law, requiring a reversal of the judgment. Other questions presented need not be noticed. The judgment is reversed and the cause remanded.