amined Pierre Larme, named in the foregoing application, and do find, and so certify, that said Pierre Larme is insane, suffering under mental derangement, and by reason of insanity unsafe to be at large, and is a proper subject for the insane asylum, as set forth in said application. That, as near as can be ascertained, said Larme is twenty-six years old, was born in Lyons, France, has been in this state one month, came here from the state of New York, his previous habits good, cause of insanity epilepsy, has been affected from early life, class of insanity dementia from epilepsy, and his present condition is quiet, physical health good. Subscribed and sworn to before me, S. R. GERRY, M. D. this 10th day of May, A. D. 1859. F. A. HOLMAN, M. D. County Judge. M. C. BLAKE, Certificate on the above Application. The foregoing application having been duly made to me, M. C. Blake, county judge of the city and county of San Francisco, and Pierre Larme, named in said application, having this day been brought before me, and in my presence carefully examined by Doctors Holman and Gerry, two respectable physicians, and they having thereupon made the foregoing certificate, by them duly subscribed and sworn to, and being myself fully satisfied of the truth of all the matters set forth in said application and certificate, I do hereby order the said Pierre Larme, to be conveyed to and placed in the insane asylum at Stockton; and the sheriff of said city and county is charged with the execution of this order. Upon inquiry duly made, as by law required, I find, as the result thereof, that the said Pierre Larme has no means of paying the charges and expenses for the time he may remain at the asylum. Witness my hand and the seal of our county court, this [L. 8.] 10th day of May, A. D. 1859. M. C. BLAKE, County Judge. Attest, WILLIAM DUER, County Clerk. CHAPTER XXIII. INSOLVENCY. ASSIGNMENTS of the property of insolvent debtors can only be made, in California, in accordance with the statute for "the relief of insolvent debtors, and the protection of creditors;" the old practice of voluntary assignments for the benefit of creditors, at common law, being rendered void. By that statute, an insolvent debtor is authorized to petition the district or county court, to make a surrender and cession of all his estate for the payment of his debts; and after due notice is given, by publication under the order of the court, a meeting of the creditors is convened, when assignees are appointed who take the assets of the debtor; and if within ten days thereafter no opposition be made by any creditor, or if made, after due trial of the questions raised by such opposition, the same be decided in favor of the debtor, and if the proceedings have been conducted according to the requirements of the statute, and are free from fraud, the debtor is discharged from all further liability on account of all the debts and liabilities he has set forth in his schedule. The assignees then proceed to realize the assets, and distribute, pro rata, among the creditors. The above outline expresses merely the theory of the statute of 1852, which may be referred to at length in Wood's Digest, page 496. The following amendment is found in the laws of 1858, page 58: SECTION 1. Section thirtieth of said act is hereby amended to read as follows: All insolvent debtors owing, or accountable in any manner for public funds, or property of whatever nature of kind; all unfaithful depositaries; all such as refuse or neglect to pay up all funds received by them as bankers, brokers, commission merchants, or for money, goods, or effects received by them. in a fiduciary capacity, shall be denied the benefit of this act; provided, that such parties may avail themselves of this act for the purpose of procuring an equal distribution of their assets among their creditors, and for that purpose only said act shall apply to estates of such insolvents in this section mentioned; and provided, further, such debtor may be discharged from all debts not named in this section. JUDICIAL DECISIONS. Cases of insolvency, under the act of 1852, are special cases within the meaning of the constitution.' The legislature, in conferring jurisdiction in these cases on both the district and the county courts, acted in the exercise of a legitimate power, and these courts have concurrent jurisdiction.' Parties appointed as assignees of an insolvent firm, in a proceeding in insolvency which was illegal and void, are merely the custodians, receivers, or bailees of the fund in their hands, by virtue of the order of the court, and only hold it subject to the order of the court." Consequently, when in another proceeding for the protection of the creditors' property, instituted by one of the insolvent firm against his partners, in the same court, an order is made that they pay over the fund to a receiver appointed by the court, it is no answer or defence, that the fund has been attached in their hands in actions brought by the creditors, or that it had been attached in the hands of a former receiver, appointed by the same court, from whom they, under a like order, had received it.' Nor is the disposition of the fund affected by any action of the immediate parties to the action, which was instituted to secure a distribution of the assets among the creditors-an object which a court of chancery will carry out, without regard to any attempt by any of the partners to evade or defeat it.' An application for a discharge in insolvency, is a special proceeding in the nature of an action. The petition schedule and affidavit are the pleadings on the part of the petitioner, who is the plaintiff; and if they are sufficient to entitle him to his discharge, any irregularity or defect in form must be taken ad 1 Harper v. Freelon, 6 Cal. 76. 2 Adams v. Haskell, 6 Cal. 118. vantage of before judgment, by his creditors, who are defendants in the proceeding.' The judgment, if not reversed on appeal, is conclusive between the parties.' An insolvent's discharge must be by judgment of the court, entered in the same county in which the proceeding is instituted." A discharge made by the district judge at chambers in the same district, but in another county, is void.' The date of publication of notice to creditors, under our Insolvent Act, is the first day on which the notice is published.' The fact that the court was adjourned, though not for the term, at the time set for the hearing of objections of creditors, and that the hearing took place before the judge, is no objection to the regularity under the statute.* The insolvent law is not obnoxious to any provision of the Constitution." When the estate of an insolvent is subject to liens or mortgages, created before the application in insolvency, proceedings therein do not affect such liens or mortgages, and the right of the assignees is confined to the surplus.* The provisions of the fourteenth section of the Insolvent Act, providing that all suits brought against the insolvent debtor anterior to his surrender of property, shall be transferred to the court in which said insolvent shall have presented his schedule, does not apply to suits brought for the enforcement of prior liens or mortgages." A party who seeks the benefit of the Insolvent Law, must comply strictly with its provisions." Where an insolvent was liable on a note made by S., to him, and by him endorsed to R., and by him over to M., and describes the same in his schedule, viz: "To R., I am contingently liable for one thousand dollars and interest, as endorser for one S., upon a promissory note, made and executed by said S., to said R.;" Held, that the description was insufficient, for inaccuracy, and that his discharge in insolvency is no bar to a recovery on the The petition in insolvency must state the name of each creditor, if known, and if unknown, such fact must be stated.' A joint application of two partners for the benefit of the Insolvent Act is void, there being no authority for such applications in the act.' A schedule attached to such a petition, showing a surrender of all the joint property of the partners, is not a compliance with the act, which requires a surrender of all the property of the insolvent." A discharge under the Insolvent Act, to be a bar to actions on indebtedness mentioned in the petitioner's schedule, must be in strict conformity with the various provisions of the law; otherwise it is void." Where an insolvent, after his discharge, expressly promises his creditor to pay his debt, it can be enforced, the debt being a sufficient consideration to support the subsequent promise." A verbal promise is sufficient, as our statute has not changed the common law rule.' A party whose assets are forty per cent. above his liabilities, cannot be considered insolvent.* An order of court made staying all proceedings against a petitioner under the Insolvent Law, for a discharge of his debtspending his petition, would not prevent the issuance of an execution on a judgment rendered against the petitioner, and a sale of property under the same, within the time limited for the lien of said judgment. A decree of discharge, under the Insolvent Act, from the payment of a note secured by mortgage, does not release the lien of the mortgage; it only operates to limit the recovery of the mortgagee to the proceeds of the mortgaged premises." The object of the thirty-ninth section of the "Act for the Relief of Insolvent Debtors and Protection of Creditors," which provides that no assignment of any insolvent debtor otherwise than as provided in that act, shall be legal or binding upon creditors, was to do away with all voluntary assignments by a debtor in failing circumstances, for the benefit of his creditors." 1 McAllister v. Strode, 7 Cal. 428; Judson v. Atwill, 9 Cal. 477. Meyer v. Kohlman, 8 Cal. 44. Feeny v. Daly, 8 Cal. 84. Hunt v. his creditors, 9 Cal. 45. |