Chase v. Lord. certificate thereof recorded as hereinbefore provided." What is meant by the word "raised"? It is not entirely clear, but I think the whole amount "to be raised" was meant. In common language a corporation may be said to have raised the whole amount of its capital, when it has procured subscriptions for the whole thereof; and when such subscriptions have been paid, then the whole amount has been raised and paid in. What certificate is meant by the last clause of the section? Clearly the certificate mentioned in section 11. No other certificate is before mentioned. Upon this the defendants base an argument that the personal liability was not to continue after organization, as that certificate was to be made and filed before organization. But I cannot yield to the force of this argument. A company may have its entire nominal capital subscribed and paid in, and then the certificate will show that fact, and there will be no personal liability after organization. If the directors and stockholders wish to escape continued personal liability, they must take that course and procure and file such a certificate. But as I have shown above, the company can be organized and commence business before the entire amount of capital has been paid in, and if that course is taken, then the personal liability attaches and continues. But it is said that there is no provision for a further certificate and that if this construction be given the personal liability could never end. But suppose this be so, the parties interested have placed themselves in this dilemma. They chose to organize and commence business before the whole amount of their capital was paid in, and they must take the consequences which the statute imposes. But there can be a further certificate. The comptroller can be required to make a further examination, and give a further certificate, which may Attorney-General v. North America Life Ins. Co. be made and filed as required in section 11, and then the personal liability will end. This liability is not in the nature of a penalty for not filing the certificate. The statute simply takes away from the corporators the protection which the incorporation would otherwise give them, and makes them liable as partners except that the liability is several as well as joint (Corning v. McCullough, Comst. 47 ; Harger o. McCullough, 2 Den. 119; Story v. Furman, 25 N. Y. 214). This action was not therefore well defended, and the judgment must be affirmed. FOLGER and MILLER, JJ., concurred. ATTORNEY-GENERAL 0. THE NORTH AMERICA LIFE INSURANCE CO. N. Y. Supreme Court, Third Department, Third District; Ulster Special Term, October, 1878. Again, N. Y. Court of Appeals, May, 1879. DISSOLUTION OF LIFE INSURANCE COMPANIES. INJUNCTION.-RECEIVER. WITHDRAWAL OF CONSENT TO BRING SUIT.— PARTIES INTERVENING BY LEAVE OF Court.— CODE CIV. PRO., § 1294. In a special proceeding pending before the supreme court for the purpose of winding up the affairs and distributing the effects of a dissolved corporation, the court has power to enjoin an action by a creditor against the receiver. If such an action will necessarily hamper the court and receiver in the performance of their duties, and greatly increase the costs and expenses of the trust, it will be enjoined. When a proceeding is pending for the dissolution of a corporation, under L. 1853, c. 463, the remedy of every creditor is in that proceeding only, and in the district in which the same is pending. Attorney-General v. North America Life Ins. Co. Leave to sue a receiver, improvidently granted in the supreme court, may be withdrawn by the court, though sitting in another district. In a proceeding by the attorney-general against an insurance company to close up its business, on account of its assets being insufficient to reinsure its outstanding risks, the court may permit parties in interest to appear and be made parties.* The proceeding for the appointment of a receiver under 2 L. 1869, p. 2273, c. 902, is summary and special. An order by the court permitting interested persons to appear and become parties to such a proceeding, includes the right to appeal from orders made affecting their interests. Such persons,-Held, to have been made parties in this case, by the service of the notice of application for confirmation of the actuary's report, and their appearance in pursuance thereof, on the hearing at the special term; and to be "parties aggrieved" within the meaning of section 1294 of the Code of Civil Procedure. Dissolution of life insurance company. The North America Life Insurance Company was organized under chapter 463 of the Laws of 1853, and it also transacted business as a registered policy company under chapter 902 of the Laws of 1869. At a special term of the supreme court, held in the city of Schenectady, by Mr. Justice LANDON, on March 8, 1877, on the motion of the attorney-general of the State, after due notice to the company, such corporation was restrained from the further prosecution of its business, and Henry R. Pierson appointed the receiver thereof. After this appointment, the receiver, with the approval of the superintendent of the insurance department, appointed an actuary, who, in conformity with the requirements of section 8 of said chapter 902 of the Laws of 1869, made a careful investigation into the affairs of said company, and reported, after such investigation, that the assets of the said corporation were not sufficient to meet its liabilities and the costs of the * See note on Intervening, at the end of this case. Attorney-General v. North America Life Ins. Co. receivership. Such report was presented to the court, and its conclusions affirmed by order, duly entered. On January 16, 1878, upon an order to show cause, duly served, and upon the application of the attorneygeneral, the court, at special term held by Mr. Justice LANDON, in the city of Schenectady, granted a second order under section 17 of chapter 463 of the Laws of 1853, dissolving the corporation, and again appointing Mr. Pierson its receiver. I. October, 1878. Motion for stay. On July 16, 1878, the court, at a special term held in the city of Schenectady by Mr. Justice LANDON, made an order appointing Albert Parsons, Esq., counselor-at-law of the city of New York, a referee to ascertain the claims against such company. The order contained full directions to such referee to give notice by publication for all creditors to present and establish their claims and to make full report to the court. The object of this order was to ascertain what were valid debts and obligations against the corporation, with a view to the distribution of its assets among them, as the court is empowered and required to do by both the acts aforesaid. Subsequently to such last-mentioned order, and on or about July 20, 1878, one Benjamin Ries, a policyholder, in behalf of himself and all other creditors of the said The North America Life Insurance Company, who should come in and contribute to the expenses thereof, brought a suit against the said corporation and the said Henry R. Pierson, its receiver, for the purpose of ascertaining and declaring the debts and obligations of the corporation, and for the distribution of its assets; or, in other words, a policy-holder of the late corporation brought an action in this court against the court's own receiver to do the very thing which the court, without such suit and without its aid, was fully competent to do, and was actually and in due form proceed Attorney-General v. North America Life Ins. Co. ing to do. That action this motion seeks to enjoin and restrain. R. W. Peckham, for the receiver and motion. Addison Brown (Stanley, Brown & Clark, attorneys), for Benjamin Ries, opposed.-No person can be enjoined in a cause to which he is not a party (1 Barb. Ch. 631; 19 How. Pr. 54; Van Sanf. Eq. Pl. 119; 4 Paige, 439; 10 Abb. Pr. 472; 5 Bosw. 703; 16 Ves. 338). The motion should be made in the action sought to be enjoined (1 Barb. Ch. 619; 1 Hoff. Ch. Pr. 89; 2 Paige, 66; 11 How. Pr. 366; 9 Abb. Pr. N. S. 37; 54 N. Y. 463). An injunction granted on this motion would be of no binding force, Ries not being a party (Fellows v. Fellows, 4 Johns. Ch. 25; Iveson v. Harris, 7 Ves. 257; 1 Barb. Ch. Pr. 633; 13 Wend. 642; Clarke, 34; 32 How. Pr. 51; 19 Barb. 356; 9 How. Pr. 425): The only exception to this rule is the case of a servant or agent of a defendant (1 Duer, 483, 4; 2 R. S. *534). The court has no authority in either of these two special proceedings to issue an injunction on Ries' suit on motion (Code Civ. Pro. § 602; Batterson v. Finn, 32 How. Pr. 503; R. S. § 56, tit. 4, c. 8, Part III). Legal proceedings are not allowed by a court of equity to be conducted by a receiver except upon neglect by the proper parties (Edwards' Receiver, 158; Parker v. Dunn, 8 Beav. 497; Ireland v. Eade, 7 Id. 55). As to the mode whereby creditors shall be heard, there is no difference in principle, whether it be by order in this special proceeding, or by action brought on leave. In this case, it should be by action, because less embarrassed with doubts than the other mode (L. 1853, c. 463, §§ 11, 17; 2 R. S. *464, § 42; Mann v. Pentz, 3 N. Y. 415; 59 Id. 163; Matter of Continental Ins. Co., 4 N. Y. Weekly Dig. 263; Attorney-General v. Life and Fire Co., 4 Paige, 224; Re Security Life Ins. Co., 11 Hun, 96; Harmony Fire Ins. Co., 45 N. Y. 310; |