Judson v. Atwill

9 Cal. 477 | Cal. | 1858

Field, J., after stating the facts of the ease, delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

The third section of the Insolvent Act requires the petitioner to give, in his schedule, “ the names of his creditors, if known and the twenty-fourth section restricts his release and discharge to debts and liabilities specified in the schedule. The requirements of the act must be strictly followed; a failure to comply with its provisions will deprive the petitioner of its benefit. (Cheever v. Hays, 3 Cal.; McAllister v. Strode et al., 7 Cal.) In the case at bar, the schedule does not give the name of the plaintiff as a creditor, nor does it state that the defendant was ignorant of the name of the owner of the notes. If the petitioner did not know the name of the owner, that circumstance should have been stated in his schedule. The absence of such statement can not be obviated by proof at the trial. The creditor looks for information to the proceedings of the insolvent on file, and if, in the schedule, he finds his name omitted, or the debt to him so incorrectly described as to leave him in ignorance whether intended to be set forth at all, he ceases to interest himself in the proceedings, and, perhaps, to contest the petition. The knowledge or ignorance of the petitioner, in the absence from the schedule of all statement as to his knowledge of the owner of the notes, could not affect the right of the plaintiff to recover.

The instruction of the Court was correct, and the judgment is affirmed.