Morgentham v. Harris

12 Cal. 245

• Court: California Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Field, J.,

delivered the opinion of the Court—Terry, C. J., concurring.

The assignment by Harris to Tandler & Co., was made to secure his indebtedness to them, and there is no pretense that it was fraudulent in fact. Nor was it in contravention of the statute, which prohibits assignments by insolvent debtors for the benefit of creditors. Harris was not insolvent at the time of its execution; at least there is no evidence in the record that he was. If such were the fact, it should have been afSrmatively shown by the appellant who contested the validity of the assignment. His insolvency could not be presumed from the language of the instrument, and the surplus remaining of the proceeds of the goods, after the payment of his debt to Tandler & Co., exceeded the claim of the appellant, who, so far as appears, was his only remaining creditor.

Judgment affirmed.