New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-01-13
LAW INTELLIGENCE

the Ceots OF the BSnk among the sockoo1ers, 80 ln
the amount Yet remaining due those debts shoslA
be collected Of the stockholders in proportion u Their
respective smoupts Of stock
Judge Edmords with whom was associated J. u.
SHERWOOD. in behalf OF Jonathan Purdy, Isaac o.
Barker, and other stockholders, moved for writ q
Prohibition or for an order restraining the referee from
any further proceedings TO appotion the debts sucsg
tie stockholders on the ground that the time limited
BY the act Of the Legislature, within which the APP
portion meut must be made had expired without any
report from the r. ftrec and that therefore, all power
unde- the statute to make such spPOrioument had
ceased
The Statute provides thai on Bank being declared
insolven the Supreme Court shall appoint receiver
who .ha within specified time proceed TO make
dividend smons the creditors and shall then report 20
the Court the debts owing by the Bank and the names
of the Stockholders, wheroupOn the Court shall ap-
point referee, who shall make the apporioomsnt
within specified time. The time mentioned in tbs
Statute is six weeks and the Court is clothed with the
power to extend the time not exceeding 20 days.
Ia this case the Court had made three extensions Of
that time two for six months each and Tor three
months and now, on the ground that by reason Of
these extensions all favor under the Statute
hausted. A motion was made to stay all further pro-
ceediugs.
MI j. VI. MASON, lW tle htCtNeI, opposeh INC
motion.
The Court granted perpetual stay of proceedings
thus e1omptng the Stockholders from all liability W
| the creditors.
The following opinion was delivered:
DAVIS J-Ordinarily the time within which q
thing IL 10 be done Is TO be reg sred directory
IT, and its legality ID not affected by its being done AT
ter the expiration Of the time within which the statute
| directed the thing {, be done
The authorities on this point are collected in Smith
| on Construction of Statutes PIP. ~! 10 80.
IT, however, the statute contained any negative
words restraining the doing Of the act acrvdd, tho
naming of the tine will not be considered as directory,
but NJ mitstion of authority In the set nov uodor
consideration Chap. 226 Laws OF lSi9 It ID declared
by section II that The receiver appointed TO close up
the affairs OF iDsOlvtnt hank, shall, witbih Doey
dave from the date Of his appointment, unless tho tune
shall be enlarged by Jmtce ct the NJ prene Curt
which he may do for period not exceeding ninety
DAYS declare dividend Of the Cash ia his hands among
the creditors OF such bank.
Ii is apparent therefore tina, the time for declaring
such dividend not directory but that the act may 10
done AT H. farthest within 100 days.
Section IL OF tie same act directs the referee 10
whom the matter should be referred TO make his report
at the first special term to be held In the county n
which he resides after the expiration OF six weeks iro
the date Of Biz apr ointment and IT, in the opinion OF
the Justice holding such term, further time required
10 enable the referee 10 complete his report, no may
grant such further time, not exceeding ninety days.
TIE retre in this appointed on tho ith Of
Aueuit 1853. The irst special run held 10 this county
after The expiration of six weeks from the date OF thai
appointment was that commencing on the first Monday
Ia October 1879. The Judge holdlog that term had
rover there fore 10 extend the time for making such
ieport for a period not exceeding ninety days.
Section 20 Of the act decsres that the dividend
authorized by said act TO be made ss the appOrtion-
nent ef the debts Of the said Bank among the stock
holders thereof sba not be delayed suspended By
r. aeon of Il PEI dency of any litigation controversy
by o. aesr i ouch Bank upess the same DO expressly
directed by Justice Of the Supreme Court, and sach
delay shsll in 10 care exceed one year
IL would seem, therefore, to be clear that the re-
ceiver must make hIs DIV i5cnd within ninety de-. from
the date of bis appointment the time for making 1t b.
ing certain ard definite and Il seems to mo equally
Gle or that in the declaration OF such divi
dend be delayed TO exceed the year from that tins.
Go in regard TO the apportionuent 10 be made BY
the referee He is TO report at the hrst Speci, Term
held a. the expiration of SIX weeks after his appoint
ment but such appOroUmoht may be- delayed by the
orter Of Justce Of this Court but in no Gaze shall
such delay exceed one year. This apportionment wS
to be made at the October Term OF 1855. Thst tern
eSIhec with that month The de ay tbereupon author
lied BY the act not TO exceed year from thai tme
This tie view undoubtedly entertained by the
Judge holding that Term, who u ca made an order az
tenG the time for the referee t. make the apporos
mtnt six moLlbs. This, of urse, under section
., under section IL be could only have exteadsd It
for uiDsty days
BEFORE the expiration of ihi. six months tho time WA
furtl extended by Justice Of this CDut for anoth9
~ rod Of elk mODihs and TIL, Ia the utn0et extent 10
NY judgment, which The statute allows.
TIE spporionmeIt not being made within that time,
this Court bas power f1rth-r TO extnd the time aud
the motion mutt therefore be grated
Before Judge CLERKE
WIN. H,npes,y ast Sarah Heune.y
Judgment Of divorce granted.
Before Judge MITCHELL
A POINT OF PHACTICE.
Ars,!o Mouiecorboh agf. julius NJ ndei = al
Tbs acutn uas commenced 10 October, 1851. 70 re-
cover the proceeds Of SAILS Of certain merchandise
Defendants a. factCrs The defendants et up couner
claim al,O the proceeds OF consgnment 10
The talt who sides ia LeQhOrn 10 Italy tO which
tie plant II fails 10 reply In time; wbereupDp about
year thtrea ter defendants counsel moved for Jndg
mont fcr want Of reply, 10 which, aieTdi'a plaintiffs
council iItposed al aTe-6d stipulation Ia relation 70
the psyu eDt Of plaintiff claim, upon The dlsehrke %
atthcbns ut the action n aLst one oi the oeonh
ants 4hO resides 10 Paris. Thus supushon was given,
however. under the impression that tue detennanb
claim al BEEN s't-ed between the plainth and tue
dCi6DdaHt in Paris.
ma. ct thu, time, that a, there appesed 20 be a
sUL dessndirg between the parties, ue m J'i0n for
iuC gue cit be denied witkou, cosis and that the pia
tff have ten days from the Both Of December 1851. ts
serve a reply, upon psymsns Of costs-Ehch plaintiff
faed 10 DO. Neither party entered This ORDER; ssd
the plajnH moves for leave 10 enter such order,
MITcHEGL Tile plaiDiif should have tentered
lis reply ard the Sl0 costs ~ leis before he nocei
he for ula inste-1 Of that be- weoi u no Cf
cui' with the peadines resdy for uriaI, bat without
rpy ard as the reply u s0Ce drawn sud syo'n 70 he
II 10 default. H. -Honio pay 'he coat, Of tss
presept Cicuii The $40 before oder,d and $40 costs
u this notion ana serve his reply IN three days from
notice If this order and the aogsnent Of rho costs
Tie csuse nav then remain the calender bat not 10
he rid a. tbs Circuit without The defend ,1ts consent
DefenfAnt usy bave leave 10 apply ~ postpone tho
trial s 'ur-Ler be chooses now " move 10 ,bs: Of
feet. M Larocque for plaintiff; Mr. Bosiey fcf
defendants
SUPERIOR COCRT-F,nIL T,sN-JH. n-BssF' '1as'
30 WosTH-
rs PAY