Adams v. Woods & Haskell.

tion. It is only in cases of necessity that equity will step in to delay creditors.

The bill not having alleged the insolvency of the firm, there could be no proof made of that fact. The allegations and proofs must correspond, and the allegations must precede the proofs. The Court would not travel out of the record and out of the case, as made, to ascertain facts not alleged, admitted, or denied. Woods & Haskell had not answered at the time the attachments were served. No creditor, at that time, had filed a bill of intervention for himself, and on behalf of all the creditors, alleging the insolvency of the firm, and praying a pro rata distribution of the assets in the hands of the receiver. And had such a bill been afterwards filed, it could not have destroyed the priority of liens then existing.

The bill was filed by Adams, as appears from its allegations, simply for his own protection. He moved because the creditors had not moved. He wished a dissolution to avoid future responsibility, and he asked the injunction, and the appointment of a receiver, for the purpose of taking from Woods and Haskell the power to create further debts, and the power to misapply the assets to their own use. He wished the assets applied to the payment of the partnership debts, because he was individually responsible for them, and this application of the partnership assets would thus diminish his individual liability. It was matter of indifference to him whether the assets were applied pro rata, or otherwise. The end contemplated by him would be equally attained in either event. But, conceding that he desired a pro rata distribution, he did not make out a proper case by his bill.

The bill having been filed by Adams, against his copartners, for his own protection, the case was under his control until a decree of dissolution. Of course, the defendants Woods and Haskell had the right to deny the allegations of the complaint; and then, unless these allegations were sustained by proof, the bill must have been dismissed. The Court could not compel Adams to prove his allegations. And the Court would not decree a dissolution without cause. Who could tell, at the time the attachments were served, that there would be a decree of dissolution? It was hardly probable that Woods and Haskell would admit the fraud charged. And if no decree of dissolution was made, no pro rata distribution could be had, under the case as made by the bill. Unless the defendants Woods and Haskell had alleged the insolvency of the firm, in their answer, or some creditor had filed a bill of intervention, alleging that fact, the Court would not inquire into it. Now, were the creditors to stand idly by and wait the uncertain result of this suit between the partners? No one could tell when or how it would termi

nate.

Adams v. Woods & Haskell.

The proposition, that creditors could be delayed by such proceedings, never can, in my view, be reconciled with the equity or the philosophy of the law.

In the case reported in 1 Hoff. Ch. Rep., 524, Smith filed his bill against Waring & Robinson, "alleging certain acts of misconduct, stating a dissolution to have been made by consent, and praying an account, an injunction, and a receiver." In that case the bill was not denied; and it was even there held that the creditors were not prevented from pursuing their remedies at law and obtaining a preference.

"I consider it, therefore, perfectly clear," said the assistant Vice-Chancellor, "that no creditor was prevented, by the bill of Smith, from proceeding at law against the partners, and obtaining an adverse judgment, which, if followed up by a creditor's bill in this Court, would give him a preference. But the right of a copartner to give a confession of a judgment, appears to me not established." (Page 530.)

In the elaborate opinion of the learned Judge of the Fourth District Court, (a printed copy of which is sent up, as a part of his return to the alternative mandamus,) certain well-established principles are stated, and from them conclusions drawn, that, in our view, do not follow.

It is true, that a receiver is an officer of the Court, and that the property in his hands is in the custody of the law; but it is equally true that he holds it for whoever can make out a title to it. It is also true, that the custody of this fund cannot be changed without the order of the Court by which the appointment was made; but it is equally true, that the service of the attachment does not change the custody of the fund. So it is true that an action cannot be brought against the receiver, without leave of the Court; but it is equally true, that the service of an attachment is not the bringing of an action.

When personal property of the defendant is in the possession, or under the control of another person, the attachment is levied by service of notice, and of a copy of the writ. (Code, § 126.) The person having such possession shall be liable to the plaintiff, unless the property be delivered to the sheriff. (Code, § 127.) The Court may compel such delivery, after an examination of the custodian on oath. (§ 128.)

But these provisions are not at all inconsistent with the view we have taken. The lien of the attachment commenced when the service was made upon the receiver, who had the property in his possession as receiver, and not in his capacity as an individual. He, as receiver, was responsible for the property to the attachment-creditors; but this responsibility could only be enforced through the Court from which his appointment emanated. True, the Court issuing the attachment has the power, in proper cases, to order the property to be delivered to the sheriff. But

Adams v. Woods & Haskell.

this discretion must be soundly exercised. The property being already in the hands of the receiver, who had already given security for the faithful discharge of his duties, it would have been error in the Court issuing the attachment to have made such an order. The different principles of the law must be harmoniously applied to the circumstances of the particular case. The lien having attached to the property while in the hands of Cohen, followed it into the hands of Naglee, his successor. The provisions of sections one hundred and twenty-seven and one hundred and twenty-eight, were intended to secure the property after the lien has attached. If, therefore, this object is already secured, the Court from which the attachment issues will not proceed any further.

The rule that will not allow the receiver to be disturbed by the suits of others, applies to cases where either the possession of the property is sought to be changed, or where a title is set up by another party, adverse to the original title of the receiver. A third party, claiming the property, could not sue for it without the permission of the Court The receiver cannot be compelled to defend in different Courts. But it was not the legal effect, nor the object of these proceedings by attachment, either to change the custody of the property, or to set up an adverse title to that of Adams & Co. The attachment-creditors admitted the title to be in Adams & Co. The liability of the receiver was not increased. He was only, as before, still liable to whomsoever could ultimately make title to the property.

"Where the receiver is in possession of property upon which a third person has a claim for rent, the proper course for the landlord is to apply to the Court, on notice to the receiver, for an order that the receiver pay the rent, or that the landlord be at liberty to proceed, by distress or otherwise, as he may be advised." (Edwards on Receivers, 128.)

The course pursued by the intervenors has been substantially the same. They first obtained a lien by attachment and ultimate judgment; and then, on notice to the receiver, sought a decreee, directing him to pay them in the order of their several priorities. We can see in these proceedings no violation of established principles, and no invasion of the jurisdiction of the Court in which the suit of Adams v. Woods and Haskell was pending. In reference to another point, decided by this Court at the July Term, 1857, it is proper to offer some further remarks. The act for the relief of insolvent debtors, provides that "no assignment of any insolvent debtor, otherwise than is provided in this act, shall be legal or binding upon creditors."

This language is clear, explicit, and restrictive. If Adams, Woods, and Haskell, had themselves made an assignment, it would not have been binding upon their creditors. But if the end prohibited by the statute could have been accomplished by

People v. Wallace.

the joint act of the copartners, or by the individual act of Adams alone, in instituting this suit, then all they had to do to defeat the purpose prohibited, was to change their mode of operations. The statute intended to defeat all assignments made by the insolvent. Now, whether this purpose be accomplished by the act of the insolvent, in one form or another, is immaterial. But we do not mean to say that the creditors, on their part, could not have filed a bill, and by that means procured a pro rata distribution.

There has been no conflict in the judgments made by this Court in this case. Different Justices of the Court have differed as to the reasons given. This is explained in the opinion of the Chief Justice, delivered in July last.

The decree of the Court below is reversed, and that Court will render a decree, directing the receiver to distribute the proceeds in his hands, and all such proceeds as may hereafter come into his hands, first to the several intervenors, in the order of the pri ority of their respective attachments, and then the remainder to the other creditors, pro rata.

THE PEOPLE v. WALLACE.

An indictment must contain a statement of the facts constituting the offence charged against the defendant. The defects of an indictment are not cured by a verdict. In an indictment for murder, a statement of the manner of the death, and the means by which it was effected, is indispensable. It is also necessary to state the time and place, as well of the infliction of the wound, as of the death of the party, in order to fix the venue, and that it may appear on the record that the deceased died within a year and a day after receiving the injury.

APPEAL from the District Court of the Fifteenth Judicial District, County of Butte.

William Wallace was indicted and tried for the crime of murder. The material averment in the indictment is as follows:

"The said William Wallace, on or about the eighteenth day of June, A. D. 1857, at, etc., and before the finding of this indictment, did, willfully, unlawfully, feloniously, and with malice aforethought, shoot, bruise, and wound, one James Fox, upon the body of the said James Fox, with a pistol, then and there, in the hands of the said William Wallace, and by thus shooting, bruissing, and wounding, with pistol, as aforesaid, the said William Wallace did, then and there willfully, unlawfully, feloniously, and with malice aforethought, kill and murder the said James Fox, against the form of the statute," etc.

The defendant was found guilty of murder in the first degree.

People v. Wallace.

Defendant's counsel thereupon moved the Court to arrest the judgment, for the following reasons:

1. Because there is no allegation in the indictment that the said James Fox, alleged to be murdered by the said William. Wallace, is dead.

2. Because there is no allegation in said indictment that the said James Fox died from the effects of the wound; nor does it appear that he died within a year and a day from the time the wound was inflicted.

3. Because the indictment does not show upon what part of the body the wound was given, nor whether said wound was mortal.

There were other grounds upon which the motion in arrest of judgment was based, but as they were not taken into consideration by the Appellate Court, it is deemed unnecessary to state them.

William H. Rhodes for Appellant.

The Court erred in overruling the motion in arrest of judg

ment:

1. Because there is no allegation in the indictment, that James Fox, alleged to have been murdered, is dead. The indictment must show the death of the murdered man. Whart. Cr. L., p. 268; 1 Russell Cr. Law, 562; People v. Arro, April Term, 1856.

2. Because there is no allegation in said indictment that the deceased died from the effects of the wound received from W. Wallace. Arch. Cr. Pl., 487; Whart. Cr. L., 292.

3. Because the said indictment does not show upon what part of the body of deceased the wound was inflicted, nor does it allege that the same was mortal. Whart. Cr. L., 271; Arch. Cr. Pl., 485; Dias v. The State, 7 Black., p.

Thomas H. Williams, Attorney-General, for the People.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

In

The indictment in this case does not contain a statement of the facts constituting the offence charged against the defendant; and therefore no conviction could properly be had under it. the People v. Arro, 6 Cal., 207, we held that the rule of the common law, requiring a statement of the acts constituting the of fence charged to be set out in the indictment, was not changed by our statute, as the necessity of such statement was directly recognized by the one hundred and thirty-seventh section of the act.

Every offence consists of certain facts and circumstances; and the general rule is, that all the facts and circumstances contained in the definition of the offence, whether by a rule of the com