that such corporation has a good and substantial defence on the merits, ART. 1. which shall be disclosed by affidavit.20 suit, S 10. If such defence consist of a set-off, and be of such a nature Reference of that the cause might be referred, the court shall immediately refer the cause to the clerk thereof, or to some other fit persons, to hear the proofs of the parties, and report thereon; and the proceedings thereon shall be the same in all respects as in cases of reference. issues in such $ 11. Every issue of fact joined in such cause, shall have a pre- Preference to ference at the court at which it shall be noticed for trial, to all other suits. 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, shall have a preference in the argument thereof in any court where the same may be pending, 20 ages in certain cases. S 12. When judgment shall be rendered against any incorporated Rate of dam bank, for the amount of any bills or other evidences of debt, payable absolutely, the payment of which shall have been refused by such bank, and no measure of damages shall be specified in the act incorporating such bank, the plaintiff shall recover interest on such amount from the time of such refusal, at the rate of ten per cent. a year, instead of the rate of interest established by law.21 tion. $ 13. In actions by or against any corporation created by or under Reciting acts any law of this state, it shall not be necessary to recite the act or acts of incorpora. of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof, but the same may be pleaded by reciting the title of such act, and the date of its passage. S 14. In suits or proceedings by or against any corporation, a mis- Mistake in take in the naming of such corporation, shall be pleaded in abate-ning corment; and if not so pleaded, shall be deemed to have been waived. poration. $15. Suits brought in the supreme court by a resident of this state, Attachment against any corporation created by or under the laws of any other against fo state, government or country, for the recovery of any debt or dama- rations. ges, may be commenced by attachment. reign corpo 16. The court, or any judge thereof in vacation, and any officer By whom is authorised to perform the duties of such judge, in vacation, may, on the sued. application of the plaintiff, issue such attachment to the sheriff of the county in which any property of such corporation may be, commanding him to attach and safely keep all the estate, real and personal, of such corporation. $ 17. Such application shall be in writing, and shall be accompa- Proof to ob nied by the affidavit of the plaintiff, or one of the plaintiffs, specifying tain it. the sum in which such corporation is indebted to him, over and above (20) Laws of 1825, p. 449, § 4. (21) Laws of 1818, p. 243, § 3. TITLE 4 all discounts; or specifying the amount of damages to which he shall claim to be entitled.. Vouchers in certain cases. When wit ness required. Bond for costs. Powers of sheriff. Proceedings in certain cases. Ib. Proceedings on judgment S 18. If such suit be for the recovery of a debt, the original security if any, shall be produced at the time of making such application, and a copy thereof shall be annexed to the affidavit: if there be no written security, then the original accounts shall in like manner be produced, and a copy thereof be annexed to the affidavit. $ 19. If such suit be for the recovery of any damages, the facts and circumstances to establish the grounds of such claim, and the amount thereof, shall be proved by the affidavit of at least one disinterested witness. $ 20. Before such attachment shall issue, a bond shall be executed by or on behalf of the plaintiff, to the defendants, in the penalty of two hundred and fifty dollars, with sureties to be approved by the officer to whom the application is made, conditioned to pay all costs which shall be awarded against such plaintiff in such suit, which bond shall be filed by the officer receiving the same, in the office of a clerk of the court. $21. The sheriff to whom such attachment shall be directed and delivered, shall proceed thereon in all respects, in the manner prescribed by law in case of attachments against absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such suit. $ 22. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such corporation, or if any part of it consist of a vessel belonging to any port or place in this state, or any of the United States, or of any foreign vessel, or of any share or interest in any vessel, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors. $23. Any bond required in any such case to be given by a petitioning creditor, may be given by the plaintiff in the suit; and any bond required to be given to the sheriff serving such attachment, shall be held for the benefit of the plaintiff in such suit. S24. In case judgment be rendered for the plaintiff in any such suit, for plaintiff. and an execution be awarded thereon, the sheriff shall assign to the plaintiff any bond taken by him in the course of the proceedings, shall pay over to such plaintiff the proceeds of all sales of perishable property, or of any vessel or share or interest in a vessel, sold by him, or so much thereof as may be necessary to satisfy such execution; and if any balance remain due, he shall sell, under such execution, so much of the property of such corporation remaining in his hands, as may be necessary to satisfy such balance. ment is for $25. If the plaintiff in such action be non-suited, or discontinue ART. 2. the same, or judgment for any cause pass against him, every such bond Proceedings taken by the sheriff, all the proceeds of such sales, and all the proper- when judg ty of such corporation remaining in his hands, shall be delivered by defendants. such sheriff to the defendants or their agents, in the same manner and upon the same terms, as are prescribed in the case of an attachment against an absent debtor being discharged; and in case of the failure of such corporation to comply with such terms, the sheriff shall proceed in like manner as directed in case of an absent debtor. vexatious $ 26. If it shall appear to the court that any such suit against a Penalty for foreign corporation was brought vexatiously and without just cause, suit. they shall award double costs against the plaintiff; and such plaintiff shall be liable to the defendants for all damages which they may sustain by such proceedings. of defendants. S 27. At any time before the plaintiff in such suit shall have lost Appearance a trial therein, and after such time, upon good cause shown, the court may allow such corporation to appear in the action and defend the same, upon such terms as the court shall think proper. attachment. $ 28. Whenever such corporation shall have appeared in such suit, Discharge of they may apply to the officer who issued such attachment, or to the court, for an order to discharge the same. given; its $29. Upon such application, the said corporation shall deliver to Bond to be the court or officer, a bond to the plaintiff in the suit, with at least two contents. sureties, residents and freeholders in this state, to be approved by such court or officer, in a penalty at least double the amount of the claim of such plaintiff, proved as herein before directed, conditioned that the obligors in such bond will, on demand, pay the amount of the judgment that may be recovered against such corporation, in such suit. in case of $30. If there be more than one attachment issued against any Proceedings foreign corporation, in behalf of several plaintiffs, at the same term, or several suits. during the same vacation of a term, and judgments be rendered in favor of such plaintiffs, the court shall apportion the proceeds arising from the sale of the defendant's property, among the said plaintiffs, in proportion to the amount of their respective judgments. ARTICLE SECOND. Of Proceedings against Corporations, in Equity. SEC. 31. Authority of chancery to restrain usurpation of corporate powers, &c. 33. Jurisdiction of chancellor over officers of corporations. 35. Preceding powers, how and at whose instance exercised. 36. When property of corporation to be sequestered, &c. 37. Upon final decrec, distribution how to be made. 38. Certain acts and omissions of corporations to dissolve them. TITLE 4. Injunctions against cor SEC. 42. Their general powers and duties. 43. When and how directors and stockholders may be made parties. 45. Jurisdiction over stockholder, &c. for debts of corporation. 47. Decree when corporation is insolvent. 48. Distribution of property of corporation. 49. When stockholders compelled to pay up arrears on their stock 50. Liabilities of directors and stockholders, how enforced. 51. Discovery by corporations, may be compelled. 52. When officers, stockholders, &c. compelled to discover. 53. Answers of officers, how far evidence. 54. Answers in what cases only compelled. 55. Persons compelled to answer exonerated from prosecution, &c. 56. When proceedings at law against corporations to be stayed. $31. Upon a bill being filed by the attorney-general in the court porations, &c. of chancery, the chancellor shall have power to restrain by injunction any corporation from assuming or exercising any franchise, liberty or privilege, or transacting any business, not allowed by the charter of such corporation; and in the same manner, to restrain any individuals from exercising any corporate rights, privileges or franchises, not granted to them by any law of this state. When issued; $32. Such injunction may be issued before the coming in of the answer, upon satisfactory proof that the defendants complained of, have usurped, exercised, or claimed any franchise, privilege, liberty, continuance. or corporate right not granted to them; and after the coming in of the answer, such injunction may be continued until judgment at law Jurisdiction over officers, shall have been had. $33. The chancellor shall have jurisdiction over directors, mana&c. gers, and other trustees and officers of corporations, To compel account of 1. To compel them to account for their official conduct, in the their conduct, management and disposition of the funds and property committed to their charge: Payment over of monies, &c. To suspend them. To remove them. To direct new elections governor. 2. To decree and compel payment by them, to the corporation whom they represent, and to its creditors, of all sums of money, and of the value of all property which they may have acquired to themselves or transferred to others, or may have lost or wasted, by any violation of their duties as such trustees : 3. To suspend any such trustee or officer from exercising his of fice, whenever it shall appear, that he has abused his trust: 4. To remove any such trustee or officer from his office, upon proof or conviction of gross misconduct : 5. To direct new elections to be held by the body or board duly authorised for that purpose, to supply vacancies created by such removal : To report to 6. In case there be no such body or board, or all the members of such board be removed, then to report the same to the governor, who shall be authorised, with the consent of the senate, to fill such vacancies: ART. 2. To vacate 7. To set aside all alienations of property made by the trustees or other officers of any corporation, contrary to the provisions of law, or for purposes foreign to the lawful business and objects of such corpo- certain alienration, in cases where the person receiving such alienation, knew the purpose for which the same was made: and, ations. them. 8. To restrain and prevent any such alienation in cases where it To prevent may be threatened, or there may be good reason to apprehend it will be made. of last sec to execute S 34. When any of the visitatorial powers enumerated in the last Construction section, over any corporation, are or shall be vested, by statute, in ton. any corporate body or public officer, the provisions of that section shall not be construed to divest or impair the powers so vested. $35. The jurisdiction conferred by the preceding thirty-third sec- Proceedings tion, shall be exercised as in ordinary cases, on bill or petition, as powers. the case may require, or the chancellor may direct, at the instance of the attorney-general prosecuting in behalf of the people of this state, or at the instance of any creditor of such corporation, or at the instance of any director, trustee or other officer of such corporation, having a general superintendence of its concerns. ing corporate $36. Whenever a judgment at law, or a decree in equity, shall Sequestratbe obtained against any corporation, incorporated under the laws of property. this state, and an execution issued thereon shall have been returned unsatisfied in part or in the whole, upon the petition of the person obtaining such judgment or decree, or his representatives, the court of chancery may sequestrate the stock, property, things in action and effects of such corporation, and may appoint a receiver of the same.22 $37. Upon a final decree on any such petition, the court shall Distribution cause a just and fair distribution of the property of such corporation, and of the proceeds thereof, to be made among the fair and honest creditors of such corporation, in proportion to their debts respectively, who shall be paid in the same order as provided by this Title, in the case of a voluntary dissolution of a corporation.22 upon decree corporate $38. Whenever any incorporated company shall have remained Surrender of insolvent for one whole year; or for one year shall have neglected rights. or refused to pay and discharge its notes or other evidences of debt; or for one year shall have suspended the ordinary and lawful business of such corporation; it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this state, and shall be adjudged to be dissolved. 22 against cer $39. Whenever any corporation having banking powers, or hav- Proceedings ing the power to make loans on pledges or deposits, or authorised by an insolvent law to make insurances, shall become insolvent or unable to pay its &c. corporations, (22) Laws of 1825, p. 450, § 5. |