The law of California expressly denies to a banker the benefit of the insolvent law. It gives him no right to come in for any purpose. The benefit of the Act means the whole benefit, for any purpose, and " benefit" is not gain. It means " privilege," and privilege of distribution as much as discharge. The whole scheme of the Act is an insolvent, not a bankrupt law See 8 Wend. 339. Every provision looks to the discharge of the debtor; and the disposition of the property, though equally important, yet ismerely ancillary to this substantive purpose.
It is not for us to show that a banker cannot come in for the purpose of having his effects distributed; but it rests with the other side to show that he can come in.
This being a special and summary proceeding, and limited in its scope and effect, it follows that they who set up a power or right must show affirmatively the power or right. Nothing is presumed in favor of such a proceeding, but everything must be proved.
There is no single provision of the statute which gives the power to come in for distribution where it is denied for discharge; but the whole phraseology points, and expressly refers to the discharge as part of the prayer in all cases--as part of the inquiry, and part of the result of the investigation.
The Act provides for a stay of " all proceedings on the part of creditors; " and if it is conceded that there can be no " discharge " as to bankers, it is absurd to hold off the creditors, when they are entitled to judgment, etc. The stay is not an injunction against the fund to be distributed,--the Court would always protect its own fund,--it is a stay of suits, arrest, levy on unscheduled property, etc.
The Act requires the insolvent to sue, as he has not compounded, defrauded, etc. Now if this is for the benefit of the creditor, why should the creditor not get the money the debtor is willing to pay, merely because he has put a creditor out of the way by compounding with him; or why should the creditor be predjudiced by the fraud of the debtor, if the debtor is willing to pay him now.
Look at the absurdity of a law for the benefit of the creditor, to be worked out by the debtor, and on his relation; and the debtor a defaulter tabooed and outlawed by the Act!
If this were the privilege of the creditor, the law would put the remedy in the hands of the creditor. The notice and summons are to be against the creditors to show cause why money should not be paid them? for which they are to do nothing and give nothing.
There are forty-nine sections of a law to enable a debtor to distribute his effects among his creditors, when he would have done it himself without any law.
That one partner has no right to go into insolvency for the firm or firm assets.
1. Because the statute does not allow any party to come in by attorney or agent.
2. Becausethis is not a bankrupt law; and no case can be found where an insolvent ever was known to take the assets of a firm into insolvency; the giving in of his property being only a matter connected with his discharge; and the bankrupt Acts being remedies for the creditor, and therefore carrying in the property in such a manner as to be most beneficial to the creditor.
3. Because the assignees take not by statute, or an Act of bankruptcy, but merely by assignment; and the validity of the assignment depends on the power of the assignor over the subject; and one partner cannot make an assignment (general) which has the effect of dissolving the firm. See Holcomb's Leading Cases on Commercial Law, note to case of Harrison v. Sterry .
4. He cannot make an assignee or agent: for as to his partner, he is only agent, and cannot delegate his authority; for a delegated power cannot be assigned. And he cannot give authority to firm creditors to elect a trustee or agent. Such a power is not implied and not given.
5. Even if one partner can make a general assignment, he cannot do so for the purpose of insolvency of the firm, for the authority is only implied; and it cannot be supposedor inferred that a man has given power, which, if the question were directly presented, the other party would refuse. Who would consent, on the failure of one partner, to suffer him to put all the assets into an insolvent Court, the other partners standing out, liable to pay the debts, and having no control of the funds to pay them, and suffering the discredit of bankruptcy?
6. The assets of the firm cannot be put in for distribution, because the statute requires the insolvent to " swear that he has not compounded or acted fraudulently; " and the insolvent could not swear for his partner, nor has Woods done it; the effect being upon the assets, the oath must be by all owning them.
7. The doctrine of bankrupt law does not apply, because that is regulated by statutes (and is a remedy for creditors) applying to a class of cases, a law of commercial regulations founded upon a system wholly foreign and peculiar, having but little analogy to our insolvent system.
8. The difference between a bankrupt and an act of insolvency is this: " a commission of bankruptcy is an execution, and the act of bankruptcy is an assignment; " but under the insolvent law the assignment conveysthe property.
The District Court has no jurisdiction over proceedings in bankruptcy. The Act conferring such jurisdiction is unconstitutional.
The District Court has original jurisdiction in law and equity, in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. Const. Cal. Art. VI. § 6.
Proceedings in bankruptcy in England are not proceedings in equity.
The jurisdiction of the Lord Chancellor in bankruptcy is distinct from that of the Court of Chancery. 6 Vesey, 782.
Proceedings in bankruptcy are not proceedings in equity. 3 Young & Jarvis, 433.
The exercise of bankruptcy jurisdiction is personal in those to whom it is interested. 2 Wooddesson, 420. 3 Black. 428, note 7 by Chitty.
All the Chancellor's jurisdiction in bankruptcy is derived from the Legislature. The term bankrupt is unknown to the common law. 2 Maddock's Ch. Pr. marg. p. 589.
" We have fetched," says Lord Coke, " the name as well as the wickedness of bankrupt from foreign nations." 2 Inst. 277.
In ex parte Lund, (5 Vesey, 782, 783,) the Chancellor says, that he acted in bankruptcy under a special commission; that is, special authorityfrom the Legislature, distinct from the equitable authority of the Court of Chancery.
The first statute of bankruptcy (34 and 35 Henry VIII. c. 4) gave the jurisdiction in bankruptcy to the Chief Justice as well as to the Chancellor. 2 Mad. Ch. Pr. 589, 590, marg. page. 2 Stephens on Equity Courts, 759
Proceedings in the English bankruptcy system are in no respect analogous to proceedings in a case in equity. 2 Chit. Black. 480, et seq. marg. page. 2 Mad. Ch. Pr. 589-593. 2 Stephens' Comm. 189-225.
The conclusion is, that proceedings in bankruptcy in England cannot be regarded as constituting a case in equity.
To give the District Court jurisdiction, there must be a civil case in law, or a civil case in equity, and in either event the case must present an amount in dispute of at least two hundred dollars. We contend as follows:
I. Proceedings in bankruptcy are not a civil case in law. This requires no comment, for no one can endeavor to support the affirmative.
II. They are not a civil case in equity.
First, They do not constitute what is termed a " case." The term " civil case," means the same as " suit," " action," " cause." (Bouvier's Dic. " Case. " Burrill's Dic. " Case." )
Bankruptcy is not one of the grounds of equity jurisprudence. There is no such head in Story's Equity Jurisprudence.
In the division of suits into legal and equitable, proceedings in bankruptcy belong to neither class.
An action, or suit, or case, either in law or equity, consists of the following successive proceedings, which, to use an expression of this Court, may be regarded as the " framework" of the action, to wit: process, pleadings, trial or hearing, judgment or decree, execution. Proceedings in bankruptcy have not one of these characteristics of a suit or action.
The forms of proceedings in bankruptcy are so unlike the forms of a suit in law or in equity, that in the language of Chief Justice Marshall, (6 Wheat. 425; 5 Cond. R. 127,) a mere inspection of the record gives decisive information of the character in which the Court sits, and consequently of the " extent of its powers."
In Traver v. Traver, (3 How. Pr. R. 353,) the Court says, " The proceedings in question" (statutory proceedings for the partition of land) " are commenced by statutory petition, and are, therefore, neither an action at common law nor asuit in equity."
Some wrong or injury must have been committed, threatened, or suffered, before an action or suit can be brought.
Remedies are of two classes: First, Those which are administered in Courts of Common Law; and second, Those which are administered in Courts of Equity. 1 Story's Eq. Juris. § 25. The former are what the Constitution calls civil cases in law, and the latter civil cases in equity.
Bankruptcy is not an equitable right, nor is the remedy an equitable remedy. The right and the remedy are both created by statute, and in pursuing the statutory right, the statutory remedy alone can be resorted to. 2 Jones' Pa. R. 362. 14 Serg. & R. 165. 2 Penn. 463. 16 Mass. 65. 1 Met. 130. 1 How. 379.
Cases of this description are the special cases of the Constitution, over which the County Courts have jurisdiction.
The State Legislature has no power to enact a bankrupt law, the effect of which is to deprive A of his property and transfer it to B. Dec. of Rights, sec. 8, latter clause. Taylor v. Porter, 4 Hill, 140. McKean v. Devries, 3 Barb. S.C. 198. Tonawanda Railroad Co. v. Manger , 5 Denio, 255, 264. White v. Scott, 4 Barb. S.C. R. 59. Holmes v. Holmes, Ibid. 298. The People v. Supervisors, Ibid. 64.
JUDGES: Murray, C. J., delivered the opinion of the Court. Bryan, J., concurred.
OPINION
MURRAY, Judge
Before proceeding to examine the questions raised in this case, we think it but justice to commend the able manner in which the cause has been presented to our consideration.
It is not our purpose to examine the various points which have been argued at bar, but to come at once to a single inquiry, which we consider the turning point of the case, and decisive of the whole controversy; that is, the right of the appellant to go into insolvency in relation to debts contracted as a banker . For this purpose, our statute, though not strictly speaking a Bankrupt law, may be treated as such, or as an Insolvent Act, or both, and the question is therefore narrowed down to a simple inquiry of the intention of the Legislature, to be drawn from the Act by settled rules of construction.
The thirtieth section of the Act of May 4th, 1852, entitled " An Act for the Relief of Insolvent Debtors," provides that " all insolvent debtors, owing or accountable in any manner for public funds, or property of whatever nature or 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."
The petition of Woods states that the firm of Adams & Co. were, at the time of the act of insolvency, engaged in banking and express business, and that he was also engaged in the business of farming.
It is now contended, admitting that the appellant cannot be discharged from the obligation of the debts contracted in the business of banking, that he may be discharged as to other debts, not expressly prohibited in the thirtieth section, and may apply under the provisions of the Act to have the assets of said firm distributed, ratably, among the creditors, without proceeding to a final discharge.
In support of this proposition, it is said that the Act, by its title, purports to be an Act as well for the protection of creditors, as for the relief of debtors; and perhaps the greatest protection which can be afforded is by requiring, or enabling, the insolvent to throw all his assets into one common fund, for the benefit of all his creditors; that if this cannot be done, in a case where liabilities have been contracted in a banking business, or in a fiduciary capacity, then a large number of creditors will be entirely remediless. And, second, that the Act does not forbid the insolvent from applying for a distribution of his property, but only denies a discharge.
It is well settled, that the title of an Act is no part of the law itself; although it may be referred to, in cases of doubt, to ascertain the intention of the Legislature. The Act now under consideration has already received a judicial examination at the hands of this Court, in the case of Chever v. Hays , 3 Cal. 472, in which it was determined that it was the intention of the Legislature to do away with all voluntary assignments. Acting upon what we believe to be the better opinion of jurists, and unrestrained by any former decisions of this Court, we cheerfully avail ourselves of the opportunity thus afforded by the statute, of removing this blot from our jurisprudence, and strangling forever this ready accessory of fraud and dishonesty. Since that decision, the right, as it existed in common law, of a debtor in failing circumstances, to assign his property for the benefit of all, or a few of his chosen creditors, has never been asserted, within our knowledge, in the Courts of this State.
This we think is the only substantial protection secured to the creditors; for, as we shall show presently, save the prohibition which destroys the common law right that enabled the debtor to assign his property to whomsoever he pleased, no security or right has been guaranteed to the creditor which he did not possess before, and might have asserted in a court of law or equity; while the relief sought to be given to debtors consisted in protecting them from harassing and expensive litigation, and in a final discharge from their liabilities in case of a strict compliance with the provisions of the statute.
In determining whether the present case comes within the statute for any purpose, we assume that proceedings in insolvency are not stricti juris, either proceedings in law or equity, but a new remedy or proceeding, created by statute, the administration of which has been vested in the District Courts of this State, independent of their common law or chancery powers as courts of general jurisdiction. And, second, that whenever a new right is created by statute, and the enforcement of such right is committed to a court (even) of general original jurisdiction, that such court quoad hoc is an inferior court, and must pursue the statute strictly.
Testing this case by these propositions,--and admitting for the sake of argument that the prohibition contained in the thirtieth section, does not extend to the profession, but only to the subject matter of the insolvency,--how stands the case?
The appellants' petition shows upon its face that a portion of the indebtedness, from which he seeks to be discharged, has been contracted as a banker; thus showing a case within the provision of the thirtieth section, and expressly negating the jurisdiction of the court; for it must be borne in mind that the Act requires the petitioner to set forth the amount of his indebtedness, how contracted, etc., together with a prayer for a discharge.
Now the District Court, acting as a court of limited or inferior jurisdiction in these matters, must first ascertain that the person, the subject matter, and the relief sought, are within the statute, before its jurisdiction will attach. How, then, can the Court be said to have jurisdiction for any purpose, when the first step taken in the proceeding shows the party to be beyond the pale of the Act, and the subject matter beyond the jurisdiction of the Court?
It is contended that the Court below could not determine the question, except upon a complete investigation of the whole case; and this Court has been referred to other sections of the statute which deny the benefit of the Act to those insolvent debtors who may have been guilty of fraud, etc.; and we are asked how the Court is to ascertain these facts, except by judicial inquiry? This position may be illustrated by the example of a party seeking the aid of a Court of Chancery, and confessing his own turpitude in his bill. In such a case, would it be contended for an instant that a Court of Equity would listen to the application, and wait for a judicial ascertainment of the facts thus alleged? On the contrary, the door of justice would be closed upon him, and he would be told that equity had no jurisdiction in a case confessedly fraudulent and immoral.
In the cases enumerated in the sections referred to, the Court would be bound to take jurisdiction; it not appearing upon the face of the proceedings that the party had been guilty of any act which would prevent such jurisdiction from attaching; and having once obtained possession of the whole fund, it would be competent for a Court of Chancery to proceed and distribute, even if it should afterward appear in the course of judicial investigation that the insolvent had been guilty of some act which prevented his discharge.
It is difficult to adduce arguments in support of a proposition which we consider so clear. Strip the case of all the embarrassing questions which have been thrown around it in its progress in the Court below, and in our opinion it scarcely admits of a reasonable doubt.
The mere right of discharge cannot properly be said to be the only relief resulting to the debtors. The exemption from arrest upon mesne or final process, as well as from costs and expenses of harassing litigation, are certainly to be considered a relief to the insolvent, who may be upon the very threshold of a prison to answer with his body for debts fraudulently contracted.
It will not do to say that the only benefit secured by the Act to creditors, is the permission allowed to the debtor to file his petition, and compel his creditors to come in and distribute the assets among themselves. This voluntary permission can in no just sense be said to afford any protection to the creditor, and as already said, he acquires no other rights, by the Act, with the exception of protection against all voluntary assignments, than he possessed before; for he might then, as now, file a creditor's bill, or pursue his ordinary legal remedies.
We see none of the practical evils resulting from this construction, which have been anticipated by counsel. The remedies of the parties in law and equity remain the same; either one of the partners of an insolvent firm may file his bill, obtain an injunction and receiver, and have the assets distributed.
The Legislature for some good cause have thought proper to exclude this class of indebtedness from the operation of the Act, leaving the parties to the ordinary remedies. In so doing, they seem to have acted in consonance with the spirit of the age, as well as the Constitution of this State, which expressly discountenances contracts of this character.
If the power to discharge the insolvent is denied, in this class of cases, jurisdiction for any other purpose would seem inharmonious to the general scheme or policy of the Act, which looks to the final discharge as the object to be worked out, and cannot be said in these cases to be of any protection to the creditor, by simply permitting the debtor to throw his assets into insolvency for distribution, if he thinks proper to do so; for it must be borne in mind that the Act makes no provision for an involuntary surrender, and the mere permission of an exercise of volition on the part of an insolvent debtor, will be found to amount to no protection at all, particularly where the benefits of the Act are denied, and the real incentive to an honest surrender of all his assets is thus removed.
It has been supposed that the decision of this Court in the case of Chever v. Hays , 3 Cal. 472, sustained the right of a party to go into insolvency under this Act, without proceeding to a final discharge. On examination of that decision, it will be found that the question under consideration was not raised, and the language of the Court was intended to apply to those cases where the petitioner was entitled to his discharge, but did not see proper to prosecute his rights further than a distribution of his property; which might be done, as I know of no power that a Court possesses to compel the party to his discharge against his wishes.
For these reasons we are of opinion that the Court below had no jurisdiction in the matter of the application of I. C. Woods in insolvency, it appearing upon his petition that a portion of the indebtedness therein set forth was contracted in the business of banking, and that the whole proceeding was coram non judice and void.
Judgment affirmed, with costs.
Affirmed, Meyer v. Coleman , 8 Cal. 46;
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Rosborough
Cal. Furniture Co.
Halsey