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other trustee who shall voluntarily invest any trust funds in such stock; and no trust funds in the hands of such guardian or trustee shall be in any way liable under the provisions of this act, by reason of any such investment, nor shall the person for whose benefit any such investment may be made, be responsible in respect to such stock, until thirty days after the time when such persons, respectively, become competent and able to control and dispose of the same; but the guardian or other trustee making such investment as aforesaid, shall continue responsible as a stockholder until such responsibility devolves upon the person beneficially interested therein; and in respect to stock held by a guardian or other trustee, under a transfer of the same by a third person, or under positive directions by a third person for such investment, the person making such transfer, or giving such directions, and his executor and administrators, shall for the purposes of this act, be deemed a stockholder, and the estate of such person, if he be deceased, shall be responsible for the debts and liabilities chargeable on such stock according to the provisions of this act.

CHAP. XX.

stockhold

ed in the

$3. The persons who shall be stockholders of any corpora- Liability of tion or association described in the first section of this act, at ers describ the time of contracting any debt or liability by such corpora- first section tion or association, shall be responsible therefor, as declared in the said first section, but shall be exonerated from such responsibility in respect to any stock which shall have been transferred, previous to any default in the payment of such debt or liability, on the books of such corporation or association, to any resident of this state, of full age, in good faith and without any intent to evade such responsibility; and every assignee of any stock so transferred previous to such default, shall be responsible for debts and liabilities to the extent of such stock, in the same manner as if he had been the owner at the time of contracting such debt or liability, with the same exception in his favor, in respect to any stock transferred by him as herein provided; and the same rule of responsibility shall apply to each subsequent assignee.

25 B., 416.

a

residences

holders to

be kept in

book prothat pur

vided for

pose.

$4. A book shall be provided and kept by every corpora- Names and tion and association described in the first section of this act, of stock in which shall be entered the names and residences of the stockholders in such corporation or association on the first day of January, one thousand eight hundred and fifty, and the names and residences of the original stockholders of every corporation or association organized after the day last mentioned, so far as the same are known to the officers of the bank; the number of shares held by each stockholder; every registered transfer of stock upon the books of the bank after the said last mentioned day; the names of the assignor and assignee, with their residences and the number of shares transferred. The said book shall be at all times, during the

PART I

kept open for inspec

tion.

Penalty.

Book to be usual hours of transacting business, open to public inspection. And a refusal by any officer of such corporation or association to exhibit such book to any person demanding the inspection thereof, as herein provided, shall subject the said corporation or association to a penalty of fifty dollars for every such refusal. And every refusal by any such officer having once refused to exhibit such book as aforesaid, is hereby declared to be a misdemeanor, and the officer so offending, upon conviction thereof, shall be adjudged guilty of a misdemeanor, and be punished by a fine not exceeding one hundred dollars for every such subsequent refusal, or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment. The said penalty may be sued for and recovered, with costs, by any person who will prosecute for the same; the one moiety thereof to be paid to such person, and the other moiety to be paid into the treasury of the state. In all proceedings under the provisions of this act, the said book shall be presumptive evidence of the truth of the contents thereof; but such presumption may be repelled by evidence by any party or person interested in repelling the same. Thus amended by Laws of 1859, ch. 365.

After 20

days, plain entitled to

tiff may be

enter an order or rule for

S5. After the expiration of twenty days from the service of any summons or complaint or declaration, or proceeding for the recovery of any demand against any corporation or association described in the first section of this act, upon any judgment. debt or liability exceeding one hundred dollars, contracted after the first day of January next, in which the precise sum demanded shall be stated, the plaintiff shall be entitled to enter an order or rule for judgment, upon filing such complaint or other proceeding with due proof of personal service thereof upon any officer of such corporation or association, and judgment shall be rendered thereon for such demand, with interest and costs, whether an answer to such complaint or other proceeding has been served or not, unless an order shall have been filed in the office of the clerk where such judgment might be entered, granted by a justice of the supreme court or county judge, that the entry of such judgment be stayed until the issue joined or to be joined by the parties be disposed of. But no such order shall be granted without proof by affidavit to the satisfaction of such judge that the defendant in such suit has a good defence on the merits to such demand, or some part thereof, arising upon facts set forth in such affidavits.

Corpora

tion when to be de

solved.

$6. Upon the return of an execution against the property of any corporation or association described in the first secclared dis- tion of this act unsatisfied in whole or in part, or upon proof satisfactory to any justice of the supreme court, that any such execution although not returned, cannot be satisfied out of any property of the defendant, he shall at once make an order declaring the insolvency of such corporation or association.

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CHAP. XX.

made for

lution.

$7. Any creditor of any such corporation or association Application having a demand exceeding one hundred dollars arising when to be upon a debt or liability contract after the first day of January such dissonext, the payment of which shall have been refused by such corporation or association, may, at any time after ten days from the time of such refusal, apply to a justice of the supreme court for an order declaring such corporation or association insolvent and for an injunction as hereinafter provided. If in the opinion of such judge, upon the facts presented, it be expedient in order to prevent fraud or injustice, he may grant an order for a temporary injunction, restraining such corporation or association, and its officers from paying out or in any way transferring or delivering to any person, any money or assets of such corporation or association, or incurring any debt or obligation, until such order be vacated or modified.

26 B., 305, 310.

S8. Upon a hearing of the parties on such short notice as Duty of the judge shall appoint, he shall determine whether such cor- judge on poration or association be clearly solvent or otherwise, and parties. may require the officers thereof to exhibit any and all of its books, papers, accounts, assets and effects, and to be examined on oath touching the same before him, or a referee to be appointed by him. If he determine that such corporation or association is clearly solvent, he shall notwithstanding continue the order for a temporary injunction if one has been granted, until the demand of the applicant be fully paid with his costs on such application; unless it shall have appeared by affidavit or otherwise that such corporation or association have a good defence on the merits to such demand.

make an

59. If the judge determine that such corporation or asso- When to ciation is not clearly solvent, he shall make an order declaring to rethe same insolvent and shall also by order restrain such cor- strain. poration or association and its officers from exercising any of its corporate rights or any rights or privileges granted to it by law, and from collecting or receiving any debts or demands and from paying out or in any way transferring or delivering to any person any of its property, money or effects, until such order be vacated; and he shall immediately appoint a receiver of the property of such corporation or association.

more stock

may apply

corporation

310. Any one or more stockholders of any such corporation One or or association owning stock to the amount of one-tenth part holders of the capital thereof paid in, may at any time, in like manner for an order apply to any justice of the supreme court for an order declaring to declare such corporation or association insolvent, or in imminent dan- insolvent. ger of insolvency. And if on the facts verified by affidavit presented such justice shall deem it necessary or expedient in order to prevent fraud, undue preference or injustice to creditors, he may grant an order in the nature of a temporary injunction, as specified in the seventh section of this act; upon a hearing of the parties as soon as may be practicable, he may

PART I.

Power and

duty of receivers.

Securities

when to be into cash.

converted

require the exhibition to him, or to a referee to be appointed by him of all the books, papers, accounts, assets and effects of such corporation or association; and an examination of the officers, servants and agents thereof under oath; and if he determine that such corporation or association is not clearly solvent, or that it is in imminent danger of insolvency, he shall make an order declaring such determination, and shall by order restrain the said corporation or association and its officers, in the same manner as provided in the ninth section of this act, and shall also appoint a receiver of the property of such corporation or association.

$ 11. Every receiver appointed according to this act, after giving security, shall take into his possession all the property, effects, books, papers, accounts and demands against such corporation or association; including the securities, if any, which may have been deposited with the superintendent belonging to such corporation or association, excepting therefrom so much of the same as may be necessary to enable the superintendent of the banking department to pay and redeem the outstanding circulation of such corporation or association. He shall immediately give notice, by publication in such newspapers as the superintendent or any justice of the supreme court shall direct, requiring the creditors of such corporation or association to exhibit and establish their demands before him within thirty days from the time of his appointment. Such receiver shall possess all the powers of receivers of corporations under the third article of title four of chapter eight and part third of the Revised Statutes in respect to the settlement of all demands exhibited to them, and in all other respects, except as herein otherwise provided; and all such powers now conferred by law on trustees of insolvent debtors as may be applicable, and shall be subject to all the duties and obligations by law imposed on receivers of corporations except as herein modified.

Thus amended by Laws of 1855, ch. 69.

S 12. Under the direction of the comptroller, all securities deposited with him belonging to such corporation or association, shall be converted into cash by the receiver, with the least possible delay, and the receiver shall also convert into cash the effects and demands of such corporation or association, and for that purpose may sell at auction any of the said demands which any justice of the supreme court shall authoDividends rise to be sold; and within ninety days from the time of his appointment, unless such time be enlarged by a justice of the supreme court, which may be done for a period not exceeding ninety days, such receiver shall declare a dividend of the cash in his hands among the creditors of such corporation or association.

to be made.

Expenses to be deducted be

S13. Before making such dividend, the receiver shall deduct and retain the sums necessary to defray the expenses of the proceedings, and all sums which he may have paid in order to

CHAP. XX.

dividend.

exonerate any property of such corporation or association fore making from any pledge or specific lien or levy, under execution or attachment. He shall then apply the money in his hands to the payment of the bills or notes held by bill holders of such corporation or association, who shall have presented the same in just and equal proportions. If any surplus remain he shall divide and pay the same to and among the creditors of such corporation or association having demands founded on any debt or liability contracted after the first day of January one thousand eight hundred and fifty, whose demands shall have been ascertained, in proportion to their respective demands; and if any further surplus remain, he shall divide and pay the same to and among all other creditors of the said corporation or association whose demands shall have been ascertained, in proportion to their demands respectively. Such payments to creditors shall be made in the order prescribed by law, in respect to the duties of receivers of corporations.

be made in

unsatisfied

$ 14. If there shall remain unsatisfied any debts or liabili- Report to ties of such corporation or association, contracted after the relation to first day of January, one thousand eight hundred and fifty, debts. the receiver shall within thirty days after the declaration of the said first dividend, and without waiting for the actual payment of the sums divided, render to a justice of the supreme court residing in the district where the business of such corporation or association was conducted, a particular account of the said debts and liabilities so remaining unsatisfied, and a preliminary account of all his proceedings, under oath, in which shall be set forth the amount of cash realized by him, the expenses and allowances claimed by him, all payments that he may have made, the amount on hand to be divided, and the dividends declared by him.

$ 15. The said receiver shall at the same time report and submit to such justice a true and accurate list and statement of the persons who, since the first day of January, one thousand eight hundred and fifty, were stockholders of such corporation or association, the nominal amount of stock held by each, and the residence of each stockholder, so far as the same can be ascertained. The said list and statement shall be made up from the stock books, ledger and list of stockholders kept by such corporation or association, and shall show when each stockholder acquired and transferred the stock standing in his name.

List of

stockhold

ers to be re

ported.

list to be

referee.

§ 15. The said justice shall thereupon refer the said report Report and and list of stockholders to a referee, to be appointed by him, referred to with directions, after giving notice to all persons concerned, to apportion the debts and liabilities of such corporation or association contracted after the first day of January, one thousand eight hundred and fifty, and remaining unsatisfied among the said stockholders, ratable in proportion to their stock, according to the principles in this act declared, and to

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