25 Conn. 97 | Conn. | 1856
If one or more natural persons were the plaintiffs in this case, there is no doubt that, under our statute of set-off, (Rev. Stat., 81,) the defendant would be entitled to the set-off which he claims. The mere insolvency of the plaintiffs, using that term in its ordinary sense, to denote generally an inability to pay their debts, would not prevent them from paying the debt due to the defendant, in prefer-ence to any other of their debts, or of applying it towards the payment of the plaintiffs’ claim, or of making any other arrangement for the liquidation of their indebtedness which they chose, in the same manner as if they were solvent; and it might equally be collected of them by a suit in favor of the defendant, or by a set-off in a suit brought by them against
The plaintiffs claim that as the note, on which this suit is brought, was given for the defendant’s share of the stock of the corporation, it constituted a part of its capital, and by allowing the set-off claimed by the defendant, he is permitted to withdraw a part of such capital; and that this would be a fraud on the other creditors of the company, and a violation of the 214th section of the act relating to joint stock corporations, which provides that “ if the capital stock of any such corporation shall be withdrawn and refunded to the stockholders, before the payment of all the debts of the corporation for which such stock would have been liable, the stockholders of such corporation shall be liable to any such creditor of such corporation, in an action founded on [that] statute, to the amount of the sum refunded to them respectively as aforesaid.” (Rev. Stat., 230.) The answer to this claim is obvious. The defendant would withdraw no part of such capital as a stockholder, but would only appropriate according to law, as a creditor of the plaintiffs, in payment of his debt against them, a portion of that capital which was designed to be protected as a fund for the benefit of their creditors, and would only exercise the same right as any other creditor, whether a stockholder or not, would possess. And why should he as a creditor stand on worse ground, in recovering his debt, than any other creditor? And, so far from contravening that provision of the act referred to, such set-off would be in exact accordance with its design, as it was its very object, to have the capital first appropriated to the payment of the debts of the corporation ; and the defendant, moreover, instead of withdrawing or refunding to himself, as a stockholder, any part of the capital, diminishes his
We therefore advise the superior court to allow the set-off claimed by the defendant, and to render judgment accordingly.
In this opinion, Hinman, J. concurred.
Set-off allowed, and judgment accordingly.