Citation Numbers: 1 Barb. Ch. 122
Filed Date: 10/7/1845
Status: Precedential
Modified Date: 1/12/2023
There is nothing in the complainant’s bill in this case entitling him to an injunction, or to an order to stay the" receiver from collecting the amount which the assistant vice chancellor has decreed to be paid. Upon this application the court must presume that the decree against the complainant was right, and that the receiver was entitled to recover against him the whole of the balance due upon his stock in the corporation. For if there was any good reason why the present complainant ought not, in equity, to be required to pay to the receiver the balance due upon his stock, it was a proper ground of defence to the suit before the assistant vice chancellor. And if an equitable defence existed, and the facts constituting stich defence were properly before the court in that suit, the remedy of Pentz is by appeal from the decree of the assistant vice chancellor, and not by an injunction bill to Stay the proceedings upon that decree. The mere fact, however, that the whole amount of the balance due upon the complainant’s stock may not ultimately be wanted, to pay the debts of the corporation, if all the other solvent stockholders should pay their rateable proportions of what still remains due upon their stock, does not necessarily render it inequitable that the receiver should compel the several stockholders to pay the balances due from them respectively, in the first instance. For if any balance should remain in the hands of the receiver, after satisfying the debts of the corporation and the necessary expenses of executing the" trust, it will.be distributed among the several stockholders who shall have paid in full for their stock; so as to produce perfect equality among them. And it might be great injustice to the creditors, of an insolvent corporation, to compel them to wait for the whole amount, of their respective debts, until it could be
But as the complainant is not entitled te a stay of the- proceedings upon the decree,, either by an injunction, or by an order in this suit, the order to show cause must be discharged, with costs to be paid by the complainant.