other incorporated bank, current at the time in this state at par value, for want of funds, or shall have closed its doors during banking hours, or taken any other measures with intent to prevent the creditors of the said bank from demanding payment of their just debts, or from presenting the notes or bills of the said bank for redemption as aforesaid; or shall have suspended the ordinary business of the said bank for want of funds to carry on the same; the said banking company shall from the time thereof, be deemed and considered insolvent within the true intent and meaning of this act.

72. Court of chancery may appoint receivers. Powers of receivers.

It shall and may be lawful for the court of chancery, if the circumstances of the case and the ends of justice require it, at the time of ordering the said injunction, or at any other time afterwards during the continuance of the said injunction, to appoint a receiver or receivers, or trustee or trustees, with full power and authority to demand, sue for, collect, receive and take into their possession, all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes and property of every description belonging to the said company at the time of their insolvency or suspension of business as aforesaid; and to sell, convey or assign all the said real or personal estate; and to pay into the court of chancery, all the moneys and securities for money arising from such sales, or which the said receiver or receivers, or trustee or trustees shall collect or receive by virtue of the authority vested in them to be disposed of by the said receiver or receivers, or trustee or trustees, from time to time, under the order of the said court, among the creditors of the said company; first making to the receiver or receivers, or trustee or trustees, such reasonable compensation as the chancellor may deem just and proper, and also deducting the costs of the proceedings in the said court.(1)

73. Qualification of receivers. Form of oath.

Before the said receiver or receivers, or trustee or trustees, shall be capable of acting, he or they shall comply with such terms as the chancellor in his order appointing him or them, may prescribe, and he or they shall respectively take and subscribe

(1) On the appointment of a receiver of an insolvent corporation its title to its property is divested by force of law. Freeholders, &c., v. State Bank, 2 Stew. Eq. 268. S. C., 3 Id. 311.

the following oath or affirmation, before one of the masters of the court of chancery, or before the chancellor: "I, do swear (or affirm) that I will faithfully, honestly and impartially execute the powers and trusts reposed in me, as receiver or trustee, (as the case may be), for the creditors and stockholders of the

and that without favor or affection," which oath or affirmation shall be filed in the office of the clerk in chancery within ten days after the taking thereof.

74. Receiver may examine witnesses respecting effects of the company.

It shall and may be lawful for the receiver or receivers, or trustee or trustees, in order to enable them to ascertain and secure the property and effects of the company, for which he or they shall be appointed as aforesaid, to send for persons and papers, and to examine the said persons, and the president, directors, managers, cashier, and all other officers and agents of the said company, on oath or affirmation (which oath or affirmation the said receiver or receivers, or trustee or trustees, are hereby empowered to administer), respecting the affairs and transactions of the said company, and the estate, money, goods, chattels, credits, notes, bills, and choses in action, real and personal estate and effects of every kind of the said company; and if any such person shall refuse to be sworn or affirmed, and to make answer to such questions as shall be put to him, or shall refuse to declare the whole truth touching the subject-matter of the said examination, then it shall be lawful for the chancellor, on report made to him by the said receiver or receivers, or trustee or trustees, to commit such person to prison, there to remain until he shall submit himself to be examined as aforesaid, and shall pay all the costs of such proceedings against him.

75. May break doors and make search.

It shall be lawful for the said receiver or receivers, or trustee or trustees, with the assistance of a peace officer, to break open, in the day-time, the houses, shops, warehouses, doors, trunks, chests, or other places of said company, for which he or they shall be appointed receiver or receivers, or trustee or trustees, as aforesaid, where any of the said company's goods, chattels, choses in action, notes, bills, moneys, books, papers or other writings or effects, have been usually kept, or shall be, and to take possession of the same, and also to take possession of the lands and tenements belonging to said corporation.

76. Receiver to file inventory and accounts.

It shall be the duty of the receiver or receivers, or trustee or trustees, so to be appointed, as soon as they conveniently can, after taking possession of the estate and effects of the company for which he or they shall be appointed as aforesaid, to lay before the court of chancery a full and complete inventory of all the estate, property and effects of the said company, its nature and probable value, and an account of all the debts due from the said company and of the debts due to it, as near as the said receiver or receivers, or trustee or trustees, can ascertain the same at that time; and also to make a report of their proceedings to the said court every six months thereafter, until the said trust shall be completed.

77. Receiver may sue, compound debts, allow set-offs, etc. The receiver or receivers, or trustee or trustees, so to be appointed, shall be deemed and taken to be a receiver or receivers, or trustee or trustees, for the creditors and stockholders of the company for which they shall be appointed, with full power and authority, whenever they shall deem it proper, to institute suits at law or in equity in his or their own name or names, as receiver or receivers, or trustee or trustees, as aforesaid, for the recovery of any estate, real or personal, debts, rights in action, damages and demands whatsoever and wheresoever existing in favor of the said company at the time of the insolvency or suspension of business, as aforesaid, of the said company, or accruing subsequent thereto; and with power and authority, in their discretion, to compound and settle with any debtor of the said company, or with persons having possession of their property, or in any way responsible, in law or equity; to the said company at the time of its insolvency or suspension of business as aforesaid, upon such terms and in such manner as the said receiver or receivers, or trustee or trustees, shall deem just and beneficial, under all the circumstances, to the persons interested in the funds and property of the said corporation; and in case of mutual dealing between the said corporation and any other person or persons, to allow just set-offs in favor of such persons, in all cases in which it shall appear to the said receiver or receivers, or trustee or trustees, that the same ought to be allowed, according to law and equity; provided, that where a debtor shall have paid bona fide his debt to the said company, without notice that the said company had become insolvent, or had suspended its business as aforesaid, he, she or they shall

not be liable to pay the same to the receiver or receivers, trustee or trustees.

78. Disputed claim may be tried by jury.

Any creditor who shall lay his claim before the receiver or receivers, or trustee or trustees, appointed in pursuance of this act, may, at the same time, declare his desire that a jury may decide thereon; and in like manner the said receiver or receivers, or trustee or trustees, may require that the same shall be referred to a jury; and in either case, such request shall be entered on the minutes of the said receiver or receivers, or trustee or trus tees, and thereupon an issue shall be made up between the parties, under the direction of one of the justices of the supreme court, and a jury empaneled, as in other cases to try the same at the circuit court next to be holden in the county in which the said company carried on their business; the verdict of such jury shall be subject to the control of the supreme court, as in suits originally instituted in the said court, and when rendered, if not set aside by the court, shall be certified by the clerk of the supreme court, to the said receiver or receivers, or trustee or trustees; and such creditor or creditors shall be considered, in all respects, as having proved their debts, for the amounts so ascertained to be due them. 79. Majority of receivers may act. Receiver may be removed.

Every matter and thing by this act required to be done by the receiver or receivers, or trustee or trustees, of any such incorporated company shall be good and effectual, to all intents and purposes, if performed by a majority of them; and it shall and may be lawful for the court of chancery to remove any receiver or receivers, or trustee or trustees, so to be appointed, and to appoint another or others in his or their place or places, or to fill any vacancy or vacancies which may occur, as the said court may deem expedient and proper.

80. Distribution of assets of insolvent corporation.

In payment of the creditors and distribution of the funds of any such company the creditors shall be paid proportionally to the amount of their respective debts, excepting mortgage and judgment creditors when the judgment has not been by confession for the purpose of preferring creditors; (m) and that the said

(m) Judgment creditors are preferred only so far as they have acquired liens. Doane v. Millville Ins. Co., 18 Stew. Eq. 274. The State of New Jersey does not possess the crown's common law prerogative to have its debts.

creditors shall be entitled to such distribution on debts not due, making in such a case a lawful rebate of interest, when interest is not accruing on the same; and the surplus funds, if any, after payment of the creditors and the costs and expenses as aforesaid, and the preferred stockholders, may be divided and paid to the general stockholders proportionally, according to their respective shares; provided, however, that the provisions of this section shall not be held or construed to in any way change, alter or affect the provisions of section sixty-three of said act.

[The proviso is an amendment added by supplement of March 8th, 1877. P. L. 1877, p. 74.]

81. Receiver may be substituted in pending suit.

In all suits in any court of law or equity, which shall be pending in the name of any such incorporated company, as aforesaid, at the time of the appointment of a receiver or receivers, or trustee or trustees, as aforesaid, it shall be lawful for the said courts and they are hereby directed, on application of the said receiver or receivers, or trustee or trustees, to cause the said receiver or receivers, or trustee or trustees, to be substituted as plaintiff or plaintiffs, in the place and stead of the said company, or to carry on such suit in the name of the said company, for the use of the said receiver or receivers, or trustee or trustees. (n)

82. Appeal to the chancellor from receiver's determination.

In case any such company or person or persons, whatever, shall think themselves or himself aggrieved by the proceedings or determination of the said receiver or receivers, or trustee or trustees, in the discharge of their duty, it shall be lawful for the party aggrieved to appeal to the chancellor, who shall, in a summary way, hear and determine the matter complained of, and make such order touching the same as shall be equitable and just; and the chancellor, in the execution of the powers and authority under this act, is hereby vested with all the jurisdiction and power which is lawful for the court of chancery to exercise in suits depending in that court, and may proceed according to the rules, principles and practices of that court, except when otherwise directed by this act; (o) and all cases brought before the chan

paid in preference to the debts of other creditors. Freeholders, &c., v. State Bank, 2 Stew. Eq. 268. S. C., 3 Id. 311.

(n) The death of the receiver does not abate the action against him. Section 149.

(0) The language of this section embraces every question which may possibly come before receivers for their action. 1 Stock. 205.