Taffts v. Manlove

Sacramento District Court

Taffts v. Manlove

2 Cal. Dist. Ct. 195

DecidedApril 15, 1858

StatusPublished

This text of 2 Cal. Dist. Ct. 195 (Taffts v. Manlove) is published on Counsel Stack Legal Research, covering Sacramento District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taffts v. Manlove, 2 Cal. Dist. Ct. 195 (sacdistct 1858).

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Opinion

Botts, J.

— The facts in this case are agreed, and the questions presented is this: Can a particular creditor acquire a special lien by the levy of an attachment after the filing of an insolvent schedule, and an order staying proceedings ?

The act is entitled “ an act for the relief of insolvent debtors, and protection of creditors.” One of the chief and avowed objects of the act, is, to enable an individual to distribute his property pro rata amongst his creditors, and it is upon this basis, viz : that he has surrendered all he has, with perfect impartiality, that he obtains his discharge. Now, to hold, as the defendant would have us, that from the time of filing the petition, which is the confession of bankruptcy, to the appointing of an assignee, a period of thirty days at least, the property described in the schedule is liable to attachment, would be to defeat the avowed object of the statute. It would be to invite that competition, that special appropriation, which the statute aims to prevent. I think there can be no doubt that, from the moment the petition is filed, the property ceases to be the property of the insolvent, and becomes, ipso facto, the common property of the creditors. This effect is produced, not so much by the order staying proceedings as by the act of assignment. Hence, it is made the duty of the judge who certifies the petition to take charge of it and see that it is filed. See sec. 5 of insolvent act. It is true that, unless for good cause shown, the insolvent is permitted to remain in charge of the property until an assignee can be appointed, but it is evident from sec. 9, that the statute contemplates his holding it as a receiver, or officer of the court, who may be at any time displaced, when another maybe appointed in his stead, If the property were perishable, I apprehend it could be sold only under an order of the court, and without such order, the purchaser [197]*197could acquire no title. This, it seems to me, is tbe only possible mode of giving effect to the obvious intent of the statute.

The plaintiff is entitled to have and recover of the defendant the the sum of $1,780 24, that being the admitted value of the goods belonging to the plaintiff unlawfully taken and converted by the defendant. Let judgment be entered accordingly.

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Botts, J.

— The facts in this case are agreed, and the questions presented is this: Can a particular creditor acquire a special lien by the levy of an attachment after the filing of an insolvent schedule, and an order staying proceedings ?

The act is entitled “ an act for the relief of insolvent debtors, and protection of creditors.” One of the chief and avowed objects of the act, is, to enable an individual to distribute his property pro rata amongst his creditors, and it is upon this basis, viz : that he has surrendered all he has, with perfect impartiality, that he obtains his discharge. Now, to hold, as the defendant would have us, that from the time of filing the petition, which is the confession of bankruptcy, to the appointing of an assignee, a period of thirty days at least, the property described in the schedule is liable to attachment, would be to defeat the avowed object of the statute. It would be to invite that competition, that special appropriation, which the statute aims to prevent. I think there can be no doubt that, from the moment the petition is filed, the property ceases to be the property of the insolvent, and becomes, ipso facto, the common property of the creditors. This effect is produced, not so much by the order staying proceedings as by the act of assignment. Hence, it is made the duty of the judge who certifies the petition to take charge of it and see that it is filed. See sec. 5 of insolvent act. It is true that, unless for good cause shown, the insolvent is permitted to remain in charge of the property until an assignee can be appointed, but it is evident from sec. 9, that the statute contemplates his holding it as a receiver, or officer of the court, who may be at any time displaced, when another maybe appointed in his stead, If the property were perishable, I apprehend it could be sold only under an order of the court, and without such order, the purchaser [197]*197could acquire no title. This, it seems to me, is tbe only possible mode of giving effect to the obvious intent of the statute.

The plaintiff is entitled to have and recover of the defendant the the sum of $1,780 24, that being the admitted value of the goods belonging to the plaintiff unlawfully taken and converted by the defendant. Let judgment be entered accordingly.

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2 Cal. Dist. Ct. 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taffts-v-manlove-sacdistct-1858.