majority"> Smith, J.

It is made the duty of the assignee of an insolvent bank to take possession of the property, rights, and credits of the *216 bank, and demand, receive, sue for, and recover the same. G. L., e. 166, 14. Tbe statute is sufficient authority for bringing this action in the name of the assignees as such. All the property of the bank is held by them in trust. The legal estate is in them, and the equitable interest is in the creditors and depositors. The bank has been practically dissolved, except so far as may be necessary for the purpose of carrying into effect the objects of the assignment, and as a corporation it has no interest, legal or equitable, in any of the property. In re White Mountains Bank, 46 N. H. 143, 144, 146.

No person shall act as attorney in any cause in which he has acted as judge. G. L., c. 218, s. 8. The claims which it was the duty of the commissioner to examine and allow, were claims between the several creditors on the one side and the bank on the other. The claim in this suit is the bond given by the defendants to the bank for the faithful performance by the treasurer of his duties, — a claim which was in no way before the commissioner for determination. It is not the same action nor the same cause of action as the claims determined by the commissioner, nor is it connected with them, nor are the parties the same, nor are they privies. The judgments rendered by the commissioner (so far as they may be called judgments) are not binding upon the defendants, and cannot be used as evidence against them. They were not parties to the claims adjudicated by the commissioner, and are not bound by the adjudication.

Whatever communications were made to the commissioner while acting as such were made to him while in the discharge of his official duties, and it does not appear that they were or could be privileged; and Mr. Wiggin is not disqualified from acting as counsel for the plaintiffs in this suit.

Qase discharged.

Clark, J., did not sit: the others concurred.

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