Pierce

— This is an action by a California corporation against one of its former directors to recover the amount of certain dividends declared and paid to its stockholders with the concurrence of the defendant while a director. It is alleged by the plaintiff that such dividends were not paid out of the surplus profits of its business, and the action is based upon the provisions of section 309 of the Civil Code, which reads as follows: —

The complaint counts upon nineteen separate dividends, aggregating about two hundred and sixty-six thousand dollars, but it appearing that the defendant had ceased to be a director before the last dividend was paid, plaintiff limits its claim to the first eighteen.

As to these there is but one question to be decided here: Were they, or were they not, paid out of the surplus profits of the plaintiff’s business? To this issue the attention of the superior court seems to have been confined, and in reviewing its decision it will not be necessary for us to consider any question relating to the special defense interposed by defendant to some of the separate counts upon particular dividends. Aside from this special defense, the only matter put in issue by the…