36 Cal. 105 | Cal. | 1868
This is an action to recover certain personal property, seized on the 29th of May, 1867, by the defendant, who was Sheriff of Nevada County, as the goods of one Wiedero, under an attachment issued in the suit of Dinkelspeil v. Wiedero. The answer alleged the seizure in the character of Sheriff, and that the goods were at the time the property of Wiedero.
Subsequently the defendant filed a supplemental answer, in which he averred, that since the commencement of the suit, on the 29th of July, 1867, one Henry Epstein filed bis petition in bankruptcy in the District Court of the United States, against said Wiedero, setting forth that he was a creditor of Wiedero, and the other facts required by the Act of Congress to establish a uniform system of bankruptcy in the United States, and averring that, on the 24th of May,
The question is, whether the answer constituted a defense in whole, or in part, to the action. It is unnecessary to inquire whether it would, or would not, have constituted a defense to the old technical action of replevin.
In the present case, if the facts set up in the supplemental answer are true, the assignee is entitled to the possession of the goods in question, as against both plaintiffs and defendant, and the defendant could not lawfully have resisted the demand of the assignee for the possession of the goods. He was bound to deliver them up on demand. Had he not done so, the assignee could have recovered them. The goods, according to the averments of the answer, were the only property of Wiedero on the 24th of May, 1867, the date of the transfer to plaintiffs. He was on that day largely insolvent. Plaintiffs knew these facts. The transfer was made in contemplation of insolvency, and with a view to hinder, delay, and defraud his other creditors, and give preference to plaintiffs. The petition of Epstein was filed on the 29th July, 1867, within four months. Wiedero was adjudged a bankrupt. The Act of Congress makes the sale to plaintiffs, under the state of facts alleged in the supplemental answer— and for the purposes of this decision the allegations must be taken as true—void, and vests the title and right of immediate
The judgment and order denying new trial reversed, and new trial granted, and remittitur directed to issue forthwith.
Mr. Justice Crockett, having been of counsel, did not sit in this case.