243 F. 1004 | S.D. Cal. | 1917
B. B. Harlan presented a claim to the referee for allowance. The trustee objected to the allowance of the claim, and filed written specifications of his objections. The referee disallowed some of the items of the claim, but allowed the claim for the sum of $9,532.41. The matter comes before the court on a petition of the trustee to review the order of the referee allowing the claim.
There are two matters presented by this record that are worthy of particular comment: (1) Did the trustee have a right to plead as a set-off or counterclaim the alleged liability of the claimant for unpaid subscription to the capital stock of the company? (2) Did the trustee have a right to plead as a set-off or counterclaim the alleged liability of the claimant created by section 309, C. C., wherein it is provided that the debts of the corporation shall not exceed the subscribed capital stock of the corporation, and making the directors liable for violating said section?
The objections made to the allowance of the claim on account of unpaid subscription to stock should have been dismissed without prejudice; and the same is true as to the liability under section 309, C. C. An order will be made to that effect.