Imágenes de páginas
PDF
EPUB

§ 66-67 their attributes and equities. The receiver is the representative of the creditors, and as such may, by suit or defense, avoid any instrument which is void as against them. As such representative he may sue stockholders at law for unpaid subscriptions. (Receiver v. Spielmann, 50 N. J. Eq., 120, 796; Hopper v. Lovejoy, 47 N. J. Eq., 573; Natl. Trust Co. v. Miller, 33 N. J. Eq., 155, 158; Hood v. McNaughton, 54 N. J. Law, 425; Barkalow v. Totten, 53 N. J. Eq.. 573; Falk v. Whitman Cigar Co., 36 Atl. Rep., 1094.)

66. Court may appoint receivers; powers of receivers.-The court of chancery, at the time of ordering said injunction, or at any time afterwards. may appoint a receiver or receivers or trustees for the creditors and stockholders of the corporation, with full power and authority to demand, sue for, collect, receive and take into their possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes and property of everv description of the corporation, and to institute suits at law or in equity for the recovery of any estate, property, damages or demands existing in favor of the corporation, and in his or their discretion to compound and settle with any debtor or creditor of the corporation, or with persons having possession of its property or in any way responsible at law or in equity to the corporation at the time of its insolvency or suspension of business, or afterwards, upon such terms and in such manner as he or they shall deem just and beneficial to the corporation, and in case of mutual dealings between the corporation and any person to allow just set-offs in favor of such person in all cases in which the same ought to be allowed according to law and equity; a debtor who shall have in good faith paid his debt to the corporation without notice of its insolvency or suspension of business, shall not be liable therefor, and the receiver or receivers or trustees shall have power to sell, convey and assign all the said estate, rights and interests, and shall hold and dispose of the proceeds thereof under the directions of the court of chancery; the word receiver as used in this act shall be construed to include receivers and trustees appointed as provided in this act.

P. L. 1829, pp. 60, 61, 62; Act of 1875, $$ 72, 77

67. Receiver to qualify and take oath.-Every receiver shall, before acting, enter into such bond and comply with such terms as the court may prescribe, and take and subscribe the following

oath or affirmation: "I,

, do swear (or affirm) that I § 68-69 "will faithfully, honestly and impartially execute the powers and 'trusts reposed in me as receiver, for the creditors and stock"holders of the and that without favor or affection," which oath or affirmation shall be filed in the office of the clerk in chancery within ten days after the taking thereof.

[ocr errors]

P. L., 1829, p. 61; Act of 1875, § 73.

68. Property, franchises, etc., of insolvent corporation vest in receiver upon appointment.—All the real and personal property of an insolvent corporation, wheresoever situated, and all its franchises, rights, privileges and effects shall, upon the appointment of a receiver, forthwith vest in him, and the corporation shall be divested of the title thereto.

[ocr errors]

P. L., 1829, p. 61.

This section was intended to settle the question as to whether the property of an insolvent company vests in the receiver. Willink v. Morris Canal & Banking Co. (4 N. J. Eq., 377) held that it did not; that the title to the property is not changed by the appointment, and that a power only is delegated to the receivers to take charge of it and sell it. Corrigan v. Trenton Del. Falls Co. (7 N. J. Eq., 489, 496), held that "the statute, and the appointment of receivers under it, are a conveyance or transfer of all the property of the insolvent company to the re"ceivers for the benefit of the creditors of the company, to be distributed "in the mode pointed out by the statute." To the same effect Freeholders of Middlesex v. State Bank (29 N. J. Eq., 268, 274), and Minchin v. Second Natl. Bank (36 N. J. Eq., 436, 442). In Receiver v. First Natl. Bank (34 N. J. Eq., 450, 456) the contrary view is expressed by ViceChancellor Van Fleet, who states that the decision of Chancellor Halsted was made in ignorance of the prior decision in Willink v. Morris Canal & Banking Co. (4 N. J. Eq., 377). And to the same effect is Kirkpat

rick v. Corning (37 N. J. Eq., 54, 59).

The question seems settled by this and the succeeding section. Under this section assessment calls may properly be made by the receiver rather than by the court itself. He should give thirty days' notice as required by Section 22. (Falk v. Whitman Cigar Co., 36 Atl. Rep., 1094; Meley v. Whitaker, 61 N. J. Law, 602; see also Thompson on Corporations, Sections 2003, 2004.)

69. When debts paid or provided for, court may direct receiver to reconvey property, or may dissolve corporation.-Whenever a receiver shall have been appointed as aforesaid and it shall afterwards appear that the debts of the corporation have been paid or provided for, and that there remains or can be obtained by further contributions sufficient capital to enable it to resume its business, the court of chancery may, in its discretion, a proper

70-71 case being shown, direct the receiver to reconvey to the corporation all its property, franchises, rights and effects, and thereafter the corporation may resume control of and enjoy the same as fully as if the receiver had never been appointed; and in every case in which the court of chancery shall not direct such reconveyance, said court may, in its discretion, make a decree dissolving the corporation and declaring its charter forfeited and void.

70. Upon reorganization company may issue bonds and stock to creditors. Whenever a majority in interest of the stockholders of such corporation shall have agreed upon, a plan for the reorganization of the corporation and a resumption by it of the management and control of its property and business, such corporation may, with the consent of the court of chancery, upon the reconveyance to it of its property and franchises, mortgage the same for such amount as may be necessary for the purposes of such reorganization; and may issue bonds or other evidences of indebtedness, or additional stock, or both, and use the same for the full or partial payment of the creditors who will accept the same, or otherwise dispose of the same for the purposes of the reorganization.

P. L. 1882, p. 167.

(See Sections 150-6, p. 111, post.)

71. Power of receiver to examine witnesses, etc.-Such receiver shall have power to send for persons and papers and to examine any persons, including the creditors and claimants, and the president, directors and other officers and agents of the corporation, on oath or affirmation (which oath or affirmation the receiver may administer), respecting its affairs and transactions and its estate, money, goods, chattels, credits, notes, bills and choses in action, real and personal estate and effects of every kind, and also respecting its debts, obligations, contracts and liabilities, and the claims against it; and if any person shall refuse to be sworn or affirmed, or to make answers to such questions as shall be put to him, or refuse to declare the whole truth touching the subject-matter of the said examination, the court of chancery may, on report by the receiver, commit such person to prison, there to remain until he shall submit himself to be examined, and pay all the costs of the proceedings against him. Act of 1875, $ 74.

72. Power to search, etc.-Such receiver, with the assistance of a peace officer, may break open, in the daytime, the houses, shops, warehouses, doors, trunks, chests, or other places of the corporation where any of its goods. chattels, choses in action, notes, bills, moneys, books, papers or other writings or effects, have been usually kept, or shall be, and take possession of the same, and of the lands and tenements belonging to the corporation. Act of 1875, $ 75.

73.

Acts of majority of receivers or trustees valid; receivers may be removed and others appointed.—Every matter and thing by this act required to be done by receivers or trustees shall be good and effectual, to all intents and purposes, if performed by a majority of them; and the court of chancery may remove any receiver or trustee and appoint another or others in his place or fill any vacancy which may occur.

P. L. 1829, p. 63; Act of 1875, § 79.

74. Inventory and report.-Such receiver, as soon as convenient, shall lay before the court of chancery a full and complete inventory of all the estate, property and effects of the corporation, its nature and probable value, and an account of all debts due from and to it, as nearly as the same can be ascertained, and make a report to the court of his proceedings every six months thereafter during the continuance of the trust.

P. L. 1829, p. 62; Act of 1875, $ 76.

75. Court may limit time to present and make proof of claims.— The court of chancery may limit the time within which creditors. shall present and make proof to such receiver of their respective claims against the corporation, and may bar all creditors and claimants failing so to do within the time limited from participating in the distribution of the assets of the corporation; the court may also prescribe what notice, by publication or otherwise, shall be given to creditors of such limitation of time.

76. Claims to be upon oath.-Every claim against an insolvent corporation shall be presented to the receiver in writing and upon oath; and the claimant, if required, shall submit himself to such examination in relation to the claim as the receiver shall direct, and shall produce such books and papers relating to the claim as shall be required; and the receiver shall have power to

§ 72-76

§ 77-78 examine, under oath or affirmation, all witnesses produced before him touching the claims, and shall pass upon and allow or disallow the claims, or any part thereof, and notify the claimants of his determination.

P. L. 1829, p. 62.

77. Trial by jury allowed at the circuit.-Any creditor or claimant who shall lay his claim before such receiver may, at the same time, demand that a jury shall decide thereon, and in like manner the receiver may demand that the same shall be referred to a jury; and in either case such demand shall be entered on the minutes of the receiver, and thereupon an issue shall be made up between the parties, under the direction of one of the justices of the supreme court, and a jury impanelled, as in other cases, to try the same in the circuit court of the county in which the corporation carried on its business or had its principal office; the verdict of the jury shall be subject to the control of the supreme court, as in suits originally instituted therein, and when rendered, if not set aside by the court, shall be certified by the clerk of the supreme court to the receiver; the creditor shall be considered, in all respects, as having proved his debt or claim for the amount so ascertained to be due, and in all cases in which no trial by jury shall be demanded the court of chancery shall have jurisdiction to pass upon the claims presented and to determine the rights of the claimants, and to make such order or decree touching the same as shall be equitable and just.

P. L. 1829, p. 62; Act of 1875, $ 78.

78. Persons aggrieved by proceedings may appeal to court of chancery.-Every such insolvent corporation, or any person aggrieved by the proceedings or determination of such receiver in the discharge of his duty, may appeal to the court of chancery, which court shall, in a summary way, hear and determine the matter complained of, and make such order touching the same as shall be equitable and just.

P. L. 1829, p. 63; Act of 1875, § 82.

"The language of the seventieth section of this act [which Section 78 'of the Revision of 1896 practically restates] is very comprehensive, and "would seem to have been adopted for the purpose of embracing every "question which could possibly be brought before the receivers for their "action, and by which action any person could complain of being "aggrieved." (Jackson v. People's Bank, 9 N. J. Eq., 205.)

« AnteriorContinuar »