8 Wend. 645 | N.Y. Sup. Ct. | 1832
It is contended on behalf of the defendant, that the replication admits that the plaintiffs have become dissolved as a corporation, and therefore having no legal existence, that a suit cannot be prosecuted in their name. The dissolution of the corporation, or the surrender of their rights, privileges and franchises, admitted by the pleadings, is such surrender or dissolution, and such only, as the 6th section of the act of 1825, page 450, declares shall be the consequence of its insolvency, or of its neglect or refusal to redeem its notes, or of the suspension of its ordinary business, for one whole year. A surrender in any other manner is possitively denied. The question then is whether, after such a dissolution or surrender, the receiver of the bank can institute a suit in its name for a cause of action which accrued before such surrender. 2. If it be conceded or shewn that such suit can be maintained for a debt due to the bank arising upon contract, can it for a cause of action like this—a penalty? 3. Is it sufficiently shewn by this replication that this suit was instituted by the directions of the receivers ?
The act of 1825 merely authorizes the court of chancery, -upon the application of the attorney general, or any creditor
It is very obvious that the surrender of the franchises or dissolution of a corporation, spoken of in the 6th section of the act of 1825, is but a quasi, not an absolute and consummated surrender .or dissolution; for the very next section makes it the. duty of the attorney general to prosecute such corporation, and obtain judgment that it be dissolved; and the 17th section authorizes the attorney general, or any creditor of a bank which shall have become insolvent, &c. to apply for - an injunction and the appointment of a receiver. The corporation continues in esse, although shorn of its powers, until it is formally adjudged to have been dissolved, and its name may be used in the legal proceedings necessary to the winding up of its concerns.
The case of Slee v. Bloom and others, 19 Johns. R. 456, was very much relied upon by the counsel for the defendant. That was a bill filed by the creditor of the Dutchess Cotton Manufactory against the stockholders, to compel them to pay, or contribute to. the payment-of his debt, under the provisions of the 7th section of the act relative to incorporations for manufacturing purposes, under which that company had been incorporated. 1 R. L. 245, 7. The 7th section of that act provides, that for all debts which shall be due and owing by said company at the time of its dissolution, the persons then composing said company shall be individually responsible to the extent of their respective shares of stock. To establish the fact of a dissolution of the company, the bill, which was filed in April, 1819, charged, among other things. 1. That at a meeting of the stockholders in October, 1816, it was resolved that it was inexpedient to continue the factory in operation, and the superintendent was directed to shut it up and discharge the workmen; 2. That no election of trustees had been made since April, 1817, and the stockholders had come to a resolu
I am also of opinion that the receiver may prosecute for the penalty given by the act, as well as upon contracts in the name of the bank. The penalty is a debt, and the act expressly provides, (2d section, page 449,) that the individuals who shall incur the penalty shall be liable therefor to the said cor-ration, and to the creditors thereof, in the event of its dissolution. It is to be collected for the benefit of the creditors of the bank. The cause of action does not die with the corporation. But the statute gives no direction as to the manner or name in which the suit is to be brought The replication avers that this action is brought for the benefit of such creditors.
The replication does not aver that this suit was brought by the direction of the receivers. This is assigned as a special cause of demurrer, and as such appears to me to be well taken. The replication shews that this claim was transferred from the bank to the receivers, and it ought to have averred that the suit was brought by their direction. On this ground the defendant is entitled to judgment, with leave to the pliantiffs to amend, on payment of costs.
The 3d and 7th pleas of the defendant are bad, inasmuch as they do not shew any fact by which the plaintiffs had surrendered their corporate rights. A mere general allegation that they had surrendered, is not sufficient. It will be found in all the cases that particular acts and circumstances are stated as evidence of the surrender, &c.