The Empire County argus., 1855-05-12
STATE OF CALIFoRNIA--PLACER COUNTY.
IN THE
DIS RIOT CO U Il T

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of Adams & Co. j. NJ. Howell, j.
Motion Cor change Of venue to the 4th Judicial
District:
1t is based upon the petition of the deft Woods.
one of the firm of Adams & Co. composed of the
petitioner Alvin Adams and D H. Haskell The
petitioner states that he is the only partner at
present within the State of California or who can
he served with process therein: That Adams &
Co failed in business on the 23d of February.
1855, and nsovent and unable to pay their
debts: That on the 9th of said month the pe
toner. heing then resident of the 4th judicial
district in this State presented to the Hon Judge
thereof in good faith. petition well on his
own behalf as on behalf Of Adams & Co, stating
the circumstances which compelled him and the
said coartnership to surrender his and their prop
erty to their creditors. concluding with prayer
to make cession Of said property for the benefit
of their creditors, and that he be discharged from
his debts in pursuance of the provisions OF the act
entitled AN act for the relief of nsolvent debtors
and the protection of creditors passed May 4th,
1852: That there annexed to said petition
the schedules and affidavit required by the act, and
that on receiving the same. said Judge made an or
der requiring all of the creditors of the said
Woods and of Adams & Co to show cause if any
they had. why an assignment of the estate of the
said Adamf & Co.. and of the said Woods. should
not be made, and the latter discharged from his
debts: And that said creditors should meet for
that purpose at the City Hall in the city of San
Francisco on the 3lSt March. 1855, directing the
clerk at the same time to publish the notice re-
quired by the act. and that said notice was pub
lishcd accordingly for thirty days That copies,
petitioner informed and believed. of the or
der and notice, had been served on pfs attorneys:
That anterior to the surrender of the property of
petitioner and Adams & Co, vast number of suits
were commenced against the firm of Adams x Co..
in various courts and counties throughout the
State, of which this is one; and that unless the
same shall be transferred to the 4th Judicial Dis
trict Court, the rights of the various parties in
said suits. and of the numerous creditors of Adams
& Co. who have commenced suits can not be def
nltely settled, without great labor and enormous
expense, to the detrment of inSolvent and the in
Jury of creditors. &c: That the summons in this
suit served on the 9th March, 1855
The motion was heard in term and it
agreed that the order should be filed in vacation.
and entered up by the clerk of the last day Of
the term. The plaintiff in the motion relies upon
the 18th section of the act in relation to insolvent
debtors, which declares, among other things. that
all suits brought against insolvent anterior to his
surrender Of property before the courts of other
counties. shall be transferred to the court having
jurisdiction in the county in which said nsolvent
shall have presented his schedule. and may be con-
tinued against his assignees.'
For the defendant in the motion, it is objected.
that it should not be granted for the reason. lst.
That the application is not grounded upon any of
the causes noned in the Practice Act; 2d ! hat
the motion is made by one defendant alone; 3D.
The suit is brought against Adams & Co. and the
petition in insolvency is, without authority OF Law
presented by |. c. oods, for himself and o" behalf
Of Adams & Co.; 4th, The District Court has no
jurisdiction in cases of insolvency.
If the motion prevail it must be upon the ground
that the deftS have taken such steps in the appl-
cation for the benefit of the insovent laws.
will affect the debt for which this suit is brought
~, n,,f,
and this brings us to an examination of the eeali-
y of those proceedings in insolvency, as they APP
pear from the affidavit for change OF venue.
The petition alleges that l. c. Woods is the on
ly partner at present within the State of Calfor-
MIA, who he served with process therein: ::
and that the petition for the benefit Of the inso
vent law was presented Ivy Woods. as weH on his
oun beta,f as on beioif cf Adams g. Co.
The 33d section of the act under which he is
proceeding. declares that person apply for
receive the benefit Of the act through an agent
attorney in fact
The debt for which suit is brought, is partner
ship debt is several as we'll joint, and should Il
judgment be obtained. may be enforced against
the joint property of ALL and the separate property
of the defendant served. Alvin Adams and D. H.
Haskell, so far as any thing appears from the pa
pers are equally bound for It's payment, and their
property has been attached to secure the same
They have not themselves applied for the leneft
OF the lnSolvent laws Ot the State no agent or at
torney can legally do it for them and hence the
petition of " oods. 50 far as their liability or prop
erty is concerned can have eff ct, either upon
them or their creditors 1t is urged however, that
Woods, i'll presenting the petition on behalf Ad
ans Co not acting agent in the sense
contemplated by the act; that he was partner
and JOINT owner OF the property. and as such had
the right to surrender the property for the pay
ment Of the JOINT debts If this were so, whenev-
er member of n firm became insolvent, he could
surrender to his assignees the whole partnership
property and the solvent partners might be ruined
though possessed of ample means to pay their
debts; and the creditors forced to wait until such
time rs assgnees have been chosen and are pleased
to make distribution. | apprehend that if Ad-
ans and Haskell had appeared in person for the
benefit of the act it would have been refused them
at least, that such an application could not pre-
judice the pF 1t is conceded that they are not.
and were not at the time this debt contracted,
residents of this State; and where such is the case,
it has been held by high judicial authority that
the nsolvent laws not affect the controact,
be pleaded in bar to enforce the same. Agnew
Comfort 18th Pick All. action of assump.
sit to recover the balance due on four promssury
notes, made by the defendant and Ezra Joice pay
able to the plaintiff in New York, at which place
the notes were dated. The notes were in the
handwriting of Joce who at the time the
partner IN business Of the defendant Platt--the
latter being resident of Mass. The plf Agnew,
at the time the notes were made was an nhabi
tant Of New York, and had ever since resided
there The defendant pleaded Il discharge by Pc
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