57 S.C. 53 | S.C. | 1900
The opinion of the Court was delivered by
The appeals in the three cases above stated, involving the same question, were heard and will be considered together. The actions were brought by the plaintiff, as a creditor of the Globe Cotton Mills, an insolvent corporation, to recover from the defendants severally five per cent, of the amount of the stock held by the defendants, respectively, in said insolvent corporation. The statute reads as follows : “That each stockholder in any such corporation shall be jointly and severally liable to the creditors thereof in an amount, besides the value of his share or shares therein, not exceeding five per cent, of the par value of the share or shares held by such stockholder at the time the demand of the creditor was created,” &c. — the balance of the section not being pertinent to the present inquiry — sec. 1500, Rev. Stat. of 1893. Each of the defendants answered, setting up, amongst other things, the defense by way of set off, that the Globe Cotton Mills was indebted to each of them in an amount exceeding the amount of plaintiff’s demand. To such defenses the plaintiff demurred in each of the three cases, upon the ground that the indebtedness of the Globe Cotton Mills to the defendants, respectively, cannot be pleaded as a defense by way. of set off to the demand of the plaintiff. These demurrers were overruled by the Circuit Judge in a short order, giving no reasons, and the plaintiff appeals in each of the cases upon the grounds set out in the record, which need not be set out here, as the sole question presented for the decision of this Court is, whether a stockholder in a corporation, who is also a creditor of such corporation, can set up, by way of defense, his claim against the corporation, to an action at law brought by a creditor of such corporation, who is not a stockholder, to recover from him the amount of his statutory liability.
We will next proceed to notice some of the authorities which have been cited on the one side and on the other of the question upon which these appeals turn. First, as to the cases
We next proceed to notice some of the cases cited by appellant’s counsel which sustain our view. In Thompson v. Meisser, 108 Ill., 359, the question with which we are concerned seems to have been fully considered, and the Court there lays down the following proposition, sustained, as it is said, “by a decided weight of authority“That in an action
The judgment of this Court is that the orders appealed from be reversed, and that the cases be remanded to the Circuit Court for such further proceedings as may be necessary.