Case of the Empire City Bank. be presumed that it was intended to confer upon him powers of more extensive application than those devolved upon similar officers to whom duties of the same general character were assigned. There is no direct indication of any intention to extend them, and there does not seem to be any good reason why they should be extended. Upon the whole, I am satisfied that the city judge had no jurisdiction in the case under consideration, and that his order discharging the prisoner should be reversed; the prisoner should be remanded, and the writ should be quashed. CASE OF THE EMPIRE CITY BANK. Court of Appeals; December Term, 1858. INSOLVENT BANK.-SPECIAL PROCEEDINGS.-CONSTITUTIONAL LAW. -CONSTRUCTION OF STATUTES. It is an error for the court at general term to reverse an order of the special term for want of jurisdiction, where a portion of the papers, in which the fact conferring jurisdiction, if it existed, would regularly appear, were not before them. Proceedings to charge the stockholders of a bank with the debts of the corporation, commence with the order of reference and notice thereof in the nature of process, to the stockholders. The referee's report is to the Supreme Court, at special term, and the parties interested have a right to appeal to the general term. These proceedings are therefore had before a court of general jurisdiction, and in such cases jurisdiction is to be presumed until the contrary appear. Determinations in the nature of judgments obtained in such proceedings against the stockholders cannot be questioned for defect of jurisdiction, where the formal steps to subject the persons of the parties to the proceedings have been taken, and the proceedings are such that the existence of the jurisdictional facts may be fairly considered as implied. The General Banking Law (Laws of 1838, 253), exempted the stockholders from liability, but reserved to the Legislature the right to repeal or alter it. The constitution of 1846, and the act of 1849 (Laws of 1849, 340), made stockholders individually liable. Held, that the latter provisions were not unconstitutional within the provisions of the Federal Constitution, as impairing the obligation of contracts in their application to the stockholders in a bank organized subsequently to 1849. Case of the Empire City Bank. The provisions of the act of 1849 are not unconstitutional, as depriving stockholders of trial by jury; nor as depriving them of property without due process of law; nor as conflicting with the provision that corporations may sue and be sued. The latter provision is enabling, not restrictive, and does not preclude other forms of proceedings. What is "due process of law" considered. In proceedings under that act, the referee is to pass on and determine the amount of the debts to be paid, as well as the parties who are to pay them. The receiver's statement is not conclusive. The provision of the constitution of this State imposing individual liability upon the stockholders, requires from them besides loss of the amount of capital stock paid in, the contribution in addition of a sum equal to the amount of their respective shares of stock. Section 28 of the act of 1849 provides that the apportionment may be suspended for certain cause, not exceeding one year. Section 18 provides that if, in the opinion of the justice, further time is required, he may allow it not exceeding ninety days. Held, that where the apportionment was suspended for a year, and for some weeks after the expiration of the year, there was no special term in the district in session, it was competent for the justice at the first special term which was held, to order a delay for the whole period of ninety days, notwithstanding the delay that had already occurred in waiting for a special term. It seems, that even in special proceedings before a tribunal of limited jurisdiction, provisions of law fixing the time for intermediate steps after jurisdiction has been once acquired are to be deemed directory, and a disregard of them does not avoid the proceedings. Where the receiver reports certain claims against the bank as disputed and to be litigated, the referee should not charge them upon the stockholders, and if he does so his report should be referred back. Who are liable as "stockholders" in such proceedings. A stockholder who is also a creditor cannot offset his claim against his assessment as a stockholder. Appeal from an order reversing an order confirming the report of a referee in proceedings to enforce the personal liability of the stockholders of an insolvent banking association. The previous proceedings in this case are reported 4 Ante, 118, and 6 Ib., 385. From the order of the general term reorted in the latter volume, the receiver now appealed. Edgar & Van Winkle and John M. Mason, for the appelnts.-I. The act of 1849 is not unconstitutional. 1. It is not conflict with the constitution of the United States, article 1, ction 10. It is not a law impairing the obligation of contracts. is. prospective, and only applies to contracts made after the VOL VIIL-13 Case of the Empire City Bank. 1st of January, 1850. 2. It is not in conflict with § 2 of Art. 1 of the constitution of this State. That section gives a right to trial by jury only in cases in which it had been theretofore used. No such cases were known specifically before the constitution. This proceeding is purely equitable in its character, and jury trials were unknown in equity cases, except by special statutory regulation. 3. It does not violate § 6 of Art. 1. The parties are not deprived of property without due process of law: the act is under the provision of the constitution, and the act which carries out a specific provision of the constitution is due process of law. (Const., Art. 8, §§ 2-7.) Therein it differs from the statute declared unconstitutional by a majority of the court in Taylor a. Porter (4 Hill, 140). 4. The clause in § 3 of Art. 8 of the constitution, declaring that "corporations shall have the right to sue, and shall be subject to be sued in all courts in like cases as natural persons," was an enabling clause, but was not intended to and does not prevent their being proceeded against specially in cases of fraudulent insolvency. But this proceeding is a suit. A natural person can be sued by proceedings in equity, by attachment, by insolvency, &c. The constitution merely declares that those artificial persons may sue and be sued the same as natural persons. 5. It is not in violation of § 1 of Art. 1 of the State constitution which declares, that no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. Proceedings of the like nature were the laws of the land in 1846 and 1849. (Briggs a. Penniman, 8 Cow., 387; Murray's Lessee a. The Hoboken Land and Improvement Company, 18 How. (U. S.), 272; 1 Rev. Stats. (1830), 592, 593; Ang. & Ames on Corp., 2d ed., 494; Marcy a. Clark, 17 Mass., 335.) 6. It does not violate § 3 of Art. 8 of the constitution. The act does not deprive them of any right to sue, or give them any greater privilege. The object is to prevent the Legislature from giving them privileges against creditors which individuals do not possess. This act gives no such privi leges, but gives their creditors greater privileges and more sum mary process against the corporation than against the individual 7. But these proceedings are not against the corporation at all They are against the stockholders in their natural capacity They arise only after the corporation has been declared ins Case of the Empire City Bank. vent, which can only be done by due process of law. (Act of 1849, §§ 5-10.) They are proceedings by a receiver, and according to laws applied not only to corporations but to individuals for a long period of time. (Slee a. Bloom, 20 Johns., 669.) 8. The act of 1849, instead of being in conflict, is in conformity with the constitution. (Art. 8, §§ 2-7.) It was enacted to carry into effect these sections of the constitution. It prescribes the mode of enforcing the general principle affirmed by the constitution. 9. The words of Art. 8, sec. 7, of the constitution, "individually responsible to the amount of their respective share or shares of stock for all its debts and liabilities," must mean an individual responsibility beyond the stock subscribed to the amount of such stock. The same language had been employed frequently in various acts of the Legislature, and had been invariably construed to mean a liability beyond the cost of the stock itself to the amount of the par value of the stock. (Briggs a. Penniman, 8 Cow., 387; Bank of Poughkeepsie a. Ibbotsons, 24 Wend., 473.) Unless the clause is so construed, it would have no meaning whatever. Without it, the money paid or agreed to be paid by the shareholder for his stock would be liable to the creditor for the "debts and liabilities of the corporation." But the words of the constitution provide for an individual personal responsibility greater than would exist without those words. And by the same clause the "individual responsibility" is limited to the "amount of their respective shares." 10. The various sections of the act of 1849 are not in violation of the constitution. The stockholders are represented by the corporation. Section 5 merely provides for suits against the corporation, and the stockholder is not known under the act as apart from the corporation, until after the corporation is declared insolvent, when he is called upon by the receiver acting for the creditor to pay his share of the liability under the constitution. Sections 6-13 apply to proceedings against the corporation in its corporate capacity, and are in accordance with § 3 of Art. 8 of the constitution. Section 17, by which the notice to the stock-holders is not required to be personally served, is a mere statutory regulation showing the mode of bringing a party before the court, and is upon the same principle as proceedings for attachment against non-resident and publication against absent defendants. Sections 25, 26, and 27 relate to appeals. The Legis Case of the Empire City Bank. lature has full power, under the constitution, to fix the right and mode of appeal. (Const., Art. 6, §§ 5, 9, and 25.) II. The court had not lost jurisdiction of the proceeding for the assessment of the stockholders, by reason of any delay in such assessment, occasioned either by the laches of the receiver or referee, or by the action of the court itself. 1. By section 18 of the act, the referee is required to report at the first special term after the expiration of six weeks from his ap pointment. The appointment was made August 14, 1855; the six weeks expired September 25, 1855; the first special term thereafter was held in October, 1855; the referee could report at any time during that term. Before its expiration a creditor and a stockholder applied to the court for a suspension of proceeding under section 23. This application was opposed by the receiver, but a delay and suspension of proceedings for six months was granted by the court (Mr. Justice Cowles), with liberty to the petitioners or others to apply for a further delay. This suspension and delay was further continued by the order of the court (Mr. Justice Roosevelt) to October 29, 1856. Both these orders were granted on the grounds permitted by section 23, viz.: "The pendency of litigations or controversies for the recovery of demands against the association." When the suspension expired, October 29, 1856, the October special term had adjourned. There was no special term until December. At that special term the referee applied to the court for an extension of time under section 18, and an order was made December 16, 1856, granting ninety days' further time to the referee to complete his appointment. The report was presented, an order made thereon within the period, March 16, 1857. 2. The prohibition contained in section 23, against the delay exceeding one year, does not refer to a delay in presenting the report as required by section 18, but to a delay or suspension of the necessary proceedings to make the apportionment and present the report, for the reasons stated in section 23. 3. The statute contemplates that the referee shall have a certain period of time in which to make his assessments. 1st. Six weeks from the time of his appointment. 2d. Whatever time may elapse after the six weeks until the expiration of the next special term held in the county. 3d. A further period not exceeding ninety days, "if in the opinion of the justice holding the term further time is |