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. 27 N. Y., 393. 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. 39 B., 358. $15. The said justice shall thereupon refer the said report and list of stockholders to a referee, to be appointed by him, 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 List of stockhold ers to be re ported. Report and list to be referred to referee. PART L report his proceedings to such justice, or some other justice of the supreme court in the same district. Hearing when to be the referee. 17. The said referee shall cause notice of his appointment, had before and the time and place of hearing on the matters so referred to him, to be given to each stockholder whose name appears on the said list at least ten days before such time, which notice shall be served on such of the said stockholders as may then reside in the county where the principal office or place for conducting the business of such corporation or association was situated, either personally or by leaving a copy thereof at the residence of such stockholder, with some person of suitable age, and such notice may be served upon all other stockholders, by publishing the same in one advertisement, containing the names of all such last mentioned stockholders, for at least three weeks, in such newspapers as any justice of the supreme court may direct, and the same shall always be published in the paper designated by law for the publication of legal notices, and in a paper, if there be one, printed in the county where the chief office for conducting the business of such corporation or association was located. Allegations and proofs ties to be heard. S18. On such hearing the said referee shall hear the alleof all par- gations and proofs of all parties and persons interested in the matter referred, and particularly shall ascertain the persons who are chargeable as stockholders for the debts and liabili ties contracted as aforesaid, and the amount chargeable to each according to the rules and principles declared in this act. At the first special term of the supreme court held in the county in which such receiver resides, or in an adjoining county, after the expiration of six weeks from the time of his appointment, such referee shall report to the justice holding such term, the apportionment of the debts and liabilities among the stockholders made by him in detail, with the proofs taken by him on such hearing. If, in the opinion of such justice, further time is requisite to enable the said referee to complete the apportionment directed, or to take further proof in reference to the same, he may grant such further time not exceeding ninety days. Apportionment, when to be reported to supreme court. Report, when to be $ 19. On the final completion of such apportionment, the same shall be reported at a special term of the supreme court, as hereinbefore directed, and on the coming in of any such report, the justice holding such term shall proceed to examine the same, and hear the allegations of the parties and persons interested, and may modify or amend the same, or may refer the same back to the same or another referee for further proof or examination, or may confirm the same. If there be a further reference, notice of hearing thereon may be given by a general notice published in the same newspapers in which the first notice appeared for two weeks, and a report shall be made thereon within the time, to be specified in the order of reference. $20. When the report of a referee, made according to the CHAP. XX. office. preceding sections of this act, shall have been confirmed by a ted in justice of the supreme court at any special term thereof, after clerk's being modified or amended by him, the same, together with the order of confirmation, shall be filed in the office of the clerk of such county as shall be directed by such justice; and unless an appeal be allowed and entered therefrom as hereinafter provided, the said order of confirmation shall be final as a judgment against each stockholder for the amount found chargeable against him; and one or more executions thereupon may be issued against any one or more of the stockholders named in such report or order, for the sum or sums chargeable against him or them, in the same manner and with the like effect as upon a judgment in the supreme court; at the instance of the receiver of such corporation or association, and the money collected on such execution shall be paid to and received by such receiver. divided. $21. The money so collected, after deducting all expenses Money to be of proceedings, shall be without delay divided, distributed and paid over to the creditors of such corporation or association, in the same manner as herein before provided, in relation to the first dividend, by the said receiver. expenses to $22. The justice to whom any report by a receiver or by a Necessary referee, shall be made as herein provided, shall ascertain and be allowed. allow the necessary expenses attending the execution of their duties, including the hire of such and so many clerks and such professional assistance as may appear to have been useful to expedite the business committed to them, and shall allow to them such reasonable compensation for their services, not exceeding the rate of five dollars for each day actually employed, as he shall deem proper, which allowances and expenses shall be deducted and defrayed out of the cash in the hands of the receiver before making dividends thereof. and appor year. $23. Neither the dividends herein directed to be made, nor Dividends the apportionment of the debts of such corporation or associa- tionments tion among the stockholders thereof, shall be delayed or delayed bosuspended by reason of the pendency of any litigation or con- vond one troversy, for the recovery of any demand by or against such corporation or association, unless the same shall be expressly directed by a justice of the supreme court, residing in the district where the business of such corporation or association was conducted; and such delay shall in no case exceed one year, and if at the time of declaring any dividend, there shall be any prosecution pending in which any demand against such corporation or association may be established, the receiver may retain in his hands the proportion which would belong to such demand and the necessary costs and expenses of the suit or proceeding, to be applied according to the event of such prosecution, or to be distributed in some future dividend to creditors or among the stockholders. $24. If after paying and discharging the debts and liabili- After payties of such corporation or association as herein provided, and remaining ing debts, PART I. assets, how defraying all the expenses of the proceedings, there shall disposed of. remain or come to the hands of the receiver, any other assets or effects of such corporation or association the same shall be converted into cash as herein before directed, and shall be paid to the stockholders upon whom any such debts or liabilities were apportioned in just and equal proportion to the sums contributed and paid by them. Appeal, not to suspend $25. No appeal from any determination or order of a jusor delay ex- tice of the supreme court, made pursuant to the fifth, sixth, pursuant to seventh, eighth and ninth sections of this act, shall suspend certain sec- or delay the execution of such order or the effect of such ecution tions. Under sec tion ten. No appeal from an order of reference. Appeal may be taken by &c. determination, unless there shall be filed with the notice of the appeal to the clerk of the court, a certificate of a justice of the supreme court, to the effect that there is probable error in such order or determination, nor unless security be given satisfactory to such justice for the payment of the demand upon which the proceedings in those sections may be founded whenever judgment shall be rendered therefor, with interest at the rate of ten per cent and costs. S26. No appeal from any order or determination made pursuant to the tenth section of this act, shall suspend or delay the execution of such order or the effect of such determination, unless there be filed, together with the notice of appeal to the clerk of the court, a certificate in all respects corresponding with that required in the last preceding section, nor unless security be given satisfactory to the justice granting such certificate to indemnify the stockholders upon whose application such order or determination was made, against all damages, costs, expenses and losses by reason of any debt or liability of such corporation or association created after the first day of January, one thousand eight hundred and fifty. $27. No appeal can be made from any order of any justice of the supreme court under this act referring any matter to a referee. $ 28. An appeal from the determination of a justice of the receiver, supreme court confirming the apportionment of the debts and liabilities of a corporation or association among the stockholders thereof, as provided by this act, may be taken by the receiver of such corporation or association, or by any one or more of the stockholders affected by such apportionment, in the same manner and with the like security as provided by law in the case of appeals from a special term of the supreme court to a general term, or from the judgment of such general term, to the court of appeals in the same manner and with the like security and effect as appeals to the same court from any other like judgment, except that it shall not be necessary for a receiver so applying to give any security for costs or otherwise. tionment, New appor- $ 29. If any such determination or judgment shall be When to be reversed or modified so that a new apportionment of such made. debts and liabilities shall become necessary, the court in which such reversal or modification shall be made, shall direct a new apportionment, and the matter shall be remitted to the proper justice of the supreme court for that purpose; and the same proceedings shall be had thereon to complete such new apportionment as are herein provided in relation to the original apportionment. 23 N. Y., 510. CHAP. XX. where to be $30. Every security taken under the provisions of this act Securities, shall be filed with such clerk of the supreme court, as the jus- filed. tice taking the same shall direct; and the same may be enforced by suit in the name and for the benefit of any person for whose benefit or indemnity the same was taken. creditors who neglect their de to present mands. $31. Any creditor of any such corporation or association Right of who shall have neglected to present his demand to the receiver before the first or subsequent dividend, and who shall present the same before the second or any other subsequent dividend, shall receive the sum he would have been entitled to on any former dividend, before any distribution be made to other creditors. $32. Every issue of fact or of law joined in any suit against any corporation or association, described in the first section of this act, upon any debt or liability contracted after the first day of January, one thousand eight hundred and fifty, or against any receiver of such corporation or association or by any such receiver under the provisions of this act, shall have preference at the court at which it shall be noticed for trial, or argument to all other causes; and every case made, special verdict rendered, bill of exceptions and demurrer to evidence taken on such trial, and every issue of law joined on the pleadings in any such suit and every appeal from any order or determination, judgment or decree made or rendered under the provisions of this act, and every special motion relating to any proceedings had under this act, shall have a preference in the hearing and argument thereof in any court where the same may be pending. See Laws of 1863, ch. 372. Post, vol. 6, p. 128. CHAP. 313. AN ACT amendatory of the act entitled "An act to authorize the business of banking," passed April 18, 1838, and the acts amending the same. PASSED April 10, 1849. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Certain isor law join sues of fact ed in suit to have pro ference. be depos $1. The stocks which banking associations, or individual Stocks to bankers now or hereafter to be organized under the provisions ited with of the act "To authorise the business of banking," passed comp April 18, 1838, and the amendments thereto, shall hereafter troller. |