I concur in the reversal by this court of the order of the court of chancery which, at the instance of a defaulting and unclean-handed stockholder, saw fit, as it seems to me most mistakenly, to subject the only two other stockholders, neither of whom was in any way in default, to serious probable loss by stepping in with its strong summary arm and enjoining the corporation from transacting its own running business and by appointing a receiver to take over such business; the corporation at the time being manifestly quite solvent so far as assets and liabilities were concerned, and whose only creditors, none of whom were complaining, consisted of a bank, which held a note for $1,000 not yet due and which the bank was willing and offered in writing to renew if desired when it did become due, and another note for $2,700, held by an insurance broker for unearned premiums on five-year insurance policies recently taken out by the corporation on its real estate, was not due and the holder of which was also willing to renew at maturity, upon partial payments in the usual way.
It may be that a learned vice-chancellor, as an individual, may well and with good cause seriously doubt his own ability, if placed in charge of this corporation's business, to so conduct it as to successfully pay the principal installments on the mortgages against the corporation's real estate as they should mature year by year in the future, but the statutes have not made such a doubt a sufficient excuse for the trying out of the experiment through a receiver. There are very few corporations which could successfully withstand such a test.
The statutory summary power of the court of chancery to declare corporations insolvent and to appoint a receiver for that cause, is enormous and there is no adequate redress for *Page 321 its mistaken exercise. The damage done is irreparable and no indemnity bond provides a way for its even partial recovery. Under such circumstances the emphatic cautionary words of Vice-Chancellor Van Fleet in Atlantic Trust Company v.Consolidated Electric Storage Co., 49 N.J. Eq. 402, quoting opinions by Governor Pennington, Chancellor Williamson and Justice Depue, to the same effect, cannot, I think, receive too high approval and emphatic reiteration at the hands of this court. Gauged by those pronouncements the facts established by the affidavits submitted in the present case seem to me woefully inadequate and insufficient.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, KAYS — 15.