72 Cal. 442 | Cal. | 1887
The action was brought on a promissory note, the defense being a discharge under the
The court below, as portion of its charge, read to the jury sections 2, 3, 4, 7, 27, 28, 29, and 32 of the Insolvent Law of 1852, and section 8 of the act of March 31, 1876 (Stats. 1875-76, p. 582); and then instructed the jury:—
“ If you believe from the evidence that the defendant, I. C. Grimes, violated any of this law, or failed in any manner to fully comply with all provisions and requirements of said law, your verdict must be for the plaintiff.
“ These insolvency proceedings are novel and extraordinary,, created by statute in derogation of the common law, and should be strictly enforced. The proceedings in insolvency are special, and no intendments can be made in favor of the jurisdiction. Everything bearing upon that question must appear affirmatively.” The defendant duly excepted.
The instructions were erroneous and misleading. They did not alone submit to the jury the issue whether the defendant had committed any of the frauds, or been guilty of the misconduct mentioned in section 32 of the act of 1852, and in section 8 of the act of 1876. But they also left to the jury to decide, and apparently informed them that their verdict should turn on the decision.
The clause of the instructions given, that everything bearing on the question of “jurisdiction” must appear affirmatively, is, like the rest, somewhat ambiguous. If by jurisdiction was meant the power of the County Court to enter the judgment of discharge, no question as to its power could arise, except such as were presented in the record of the proceedings in Grimes v. His Creditors. Every such question was one of law which it was the duty of the court in this action to decide. If the record in Grimes v. His Creditors showed want of jurisdiction, the court below should not have admitted it in evidence. No other objection to the jurisdiction has been argued than the one considered at
The court below told the jury that if defendant violated or in any manner failed to comply with section 8 of the supplemental act of 1876 (Stats. 1875-76, p. 582), the verdict must be for the plaintiff.
This was error. The mere giving of a preference to one creditor, without intent to delay or defraud others, is not in itself, and independent of the statute, a fraud. Section 8 of the act of 1876 provides that the assignment of any part of an insolvent’s estate, within two months prior to his filing his petition, is void, and that the assignee may recover the property attempted to be assigned. The penalty imposed upon an attempt to prefer a creditor within the four months is the recovery by the assignee in insolvency of the property which the insolvent has sought to transfer. If section 32 of the act of 1852 refers at all to section 8 of the act of 1876, still to constitute a fraud, as against a creditor, which can be asserted after the discharge, it must at least be made to appear that the assignment was not made “ in the usual and ordinary course of business of the debtor.”
Judgment and order reversed, and cause remanded for a new trial.
Paterson, J., and Temple, J., concurred.