Hewett v. Adams , 54 Me. 206 ( 1866 )

Cutting-, J.,

dissenting. — The Shipbuilders’ Bank was incorporated by a special law of this State, on March 7, 1853, subject to the usual restrictions and liabilities of banking corporations. During that year the bank was duly organized and went apparently into successful operation.

The liabilities of banking corporations, at that time, were created by force of c. 1, § 45, of the Act of Amendment to the revision of 1841, which provides that,—

" The holders of stock in any bank, at the time when its charter may expire, shall be liable, in their individual capacities, for the redemption and payment of all bills, which may have been issued by said bank, and which shall remain unpaid, in proportion to the stock they may respectively hold at the dissolution of the charter.”

Section 60, directs the Governor, with the advice of the Council, to appoint two bank commissioners, who, by § 61, are authorized and required to visit every bank in this State, as often as they deem it expedient for the public safety, &c.

Section 62. " If, upon examination of any bank, said commissioners shall be of opinion that the same is insolvent, or that its condition is such as to render its further progress hazardous to the public, or to those having funds in its custody, or that said bank has exceeded its powers, or has failed to comply with all the rules, restrictions and conditions provided by law, they may apply to some one of the Justices of the Supreme Judicial Court, to issue an injunction to restrain such corporation, in whole or in part, from further proceeding with its business, until a hearing of said corporation can be had. And said Justice shall’forthwith issue such process; and, after a full hearing of the said corporation upon the matters aforesaid, may dissolve or modify, or make perpetual the same; and make such orders and decrees to suspend, restrain or prohibit the further prosecution of the business of said corporation, as may be needful in the premises, according to the course of chancery proceedings ; and, at his discretion, may appoint agents or receivers to take possession of the property and effects of the corporation, subject to such rules and orders as may from time to time be prescribed by the Supreme Judicial Court, or any Justice thereof in vacation.”

The foregoing section and its reenactment, by § 57, c. 47 of R. S. of 1857, are the only provisions authorizing the bank commissioners to apply to this Court for a temporary or permanent injunction, or the Court, or any Justice thereof, to grant the same. Qther provisions in the statutes refer to the remedies of the creditors of a bank, who neglect to pay any of its bills, when’duly presented, and, upon certain facts appearing, require the Court to appoint three receivers and require bonds, instead of two or more, as in case of injunction, without a provision for bonds, but confer no power to grant injunctions. It is necessary that this distinction should be noted, since it obviates many points raised by the respondents’ counsel. Hewett v. Adams, 50 Maine, 280.

On Dec. 28, 1854, the bank commissioners, as the exhibits show, made a written application to Judge Rice for an injunction against the Shipbuilders’ Bank, for causes therein alleged. A temporary injunction was accordingly granted, which, on January 10,-1855, after a hearing by the bank, was made perpetual by an order and decree, wherein "the said corporation, its stockholders, officers and agents were prohibited, restrained and enjoined from the further prosecution of the business of said corporation and thereupon receivers were appointed, as provided by § 62, before cited, who were required to " demand and receive of the officer^ of said bank, all its real and personal estate, with all its books, papers, title deeds and evidences of debts due said bank,” — and to "pi’oceed with due diligence to sell and dispose of said property and collect the debts due said corporation, and with the proceeds thereof to pay the claims against said corporation, in such manner and at such times as thereafter should be ordered by the Supreme Judicial Court, or any Justice thereof,” &c.

Thereupon the chartered rights of the corporation terminated. Wiswell v. Starr, 48 Maine, 401; recognized in Hewett v. Adams, 50 Maine, 279 and 283; in which case the Court remark, on page 280, that "the proceedings under § 62 and § 67 have a different origin and contemplate different results.”

Such was the law and such were the incipient proceedings in this case up to March 16, 1855, when an additional Act was passed, c. 164, § 6, which provides that, " if it shall be made to appear to the Court that the assets aforesaid are insufficient to pay the said claims against the bank, said receivers shall, forthwith, file their bill in equity in their own names, but in behalf of the claimants, against the persons who are or were stockholders in such bank, and who by law may be liable to contribute to the payment of its debts. And they shall be cited^to appear before the Court or Judge upon such notice as he shall order to be given.”

The mode and manner by which " it shall be made to appear to the Court” is disclosed in § 3. "And said receivers shall make a report in detail to the Supreme Judicial Court, at such time or times as the same shall direct, specifying all claims presented, and the amount allowed in each case; which report shall be accepted, if no objection shall be made thereto, and the Court shall be satisfied the same is correct.” § 4. " When such report shall be presented to the Court for acceptance, any claimant, whose claim shall be disallowed in whole or in part, or any claimant interested in the rejection of any claim, may make his objection and the Court shall hear the parties and determine the same,” &c. By § 5, when the assets are insufficient to pay the claims allowed, then " it has been made to appear to the Court.”

The foregoing provision was remedial, otherwise it could not have affected past transactions, and might not, as it was, except for § 8, which enacts that, — "The foregoing pro visions shall be construed to apply to all cases where receivers Have been already appointed aud have not yet liquidated and paid the demands against any bauk.” The receivers in this case, being within such predicament, were embi-aced within that provision, but without the loss of their official identity as receivers of a corporation annihilated by a perpetual injunction.

Next in the order of time appears the Revision of the Statute of 1857, c. 47, which is a reenactment of previous laws relating' to banks, arranged and consolidated. § 57 corresponding with § 62 of the R. S. of 1841, and § 60 with § 67. And by § 64, the same distinction between the two sets of receivers is manifestly recognized.

We have thus seen that the bank commissioners, after having filed their complaint and procured a perpetual injunction, have discharged all their statute duties, and, consequently, are no longer in Court, and that the bank disappears for the same cause. That record is then made up. A new record only remains to be made of subsequent transactions between the receivers of the corporation funds, aud the creditors or claimants.

Who then " shall make it appear to the Court” that the funds in the hands of the receivers are insufficient to pay the claims? The bank cannot —the stockholders will not. It must then be the claimants.

So it appears, that, at the January term, 1859, William Wilson and others, creditors of the bank, filed their petition against the receivers, requiring them "to make to the Court á detailed report of their doings, and of the amount and value of the assets in their hands.” Whereupon, after due, notice, by order of the Court at the same term, the receivers filed their report and vouchers, showing a large bank indebtedness, and were ordered to " file a bill in equity against the stockholders, to compel each aud all of them to pay in to them the amount of their stock, in accordance with the statute.” At the January term, 1860, further action was had on the report, and, to cure any seeming defects, the same was accepted.

The bill was acordingly filed on or about May 10th, 1860, which is now before us, together with the respondents’ several answers and the proofs.

It is now contended by the respondents, and is the material objection raised in defence, that the acceptance of the receivers’ detailed report, and the action of the Court thereon, was in response to Wilson and others’ petition, and that no person other than those therein named had legal notice of its pendency. That is an objection which neither of the respondents is authorized to make. They were never parties in any of the prior proceedings, and there is no law requiring them to be made such. What persons are permitted to make objections to the receivers’ report when presented?

An answer to this inquiry -carries us back to the sections of the statutes already cited. See § 71 of c. 47 of K. S. of 1857. " When such report is so presented, any claimant interested in the decision of the receivers in the allowance or rejection of any claims, may make his objection,” &c.

No claimants have ever objected, and do not now object, but, on the contrary, some of them, and for aught that appears, all of them, or at least a part for the whole, were the petitioners for acceptance of the report and for the proceedings in chancery.

When a party asks the Court, having jurisdiction over the subject matter, to nullify or set aside their recorded proceedings, it should appear that the party has been aggrieved, and the allegation should be sustained by proof. None such appears.

All the documents disclosing the whole proceedings are filed in the clerk’s office. From these and the docket entries a record can be made tip, which is never done until the termination of the suit.