The record-union., 1897-12-08
AN INJUNCTION DISSOL WE'D.
DECISION IN A NEVADA INSOL-
VENCY CASE.
Some Important Points Invoiveo
in the Issue Determined py
Judge Hart.

Judge E. C. Hart of the superior
Court Of this county has hieo ue
cision in a case heard by MN III ~
vada County recently, Whlch WIZ os
found Of interest to both lingahts anu
LAWYERS The case is that or II. "A.
Robbins and others against }. M w all
ing. Says the court;
This is a proceeding in the Nature
of a motion to dissolve an ln1unctioli
against the defendant herein, COM
manding him to refrain from coileclins
a Judgment had and obtained IN MS
favor in the Superior Court OF NeVaoa
Comfy against H. A. Robbins, anu
from issuing an execution thereon.
The facts characterizing the trans
action ont of which grew the suit 10
restrain the enforcement of the Judg-
,nent in which this proceeding is IN
stituted are as follows:
One ]. T. Cline, a citizen of Nevada
County. on the 9th of July, 1896, filed
in the Superior Court his petition,
schedule and inventory in insolvency,
praying that he be adjudged an in
solvent debtor, and was thereupon by
said court adjudged an insolvent debtor.
AT a meeting of the creditors of said
aflEOlNpUl utlu III VI law AOA
the purpose of electing an assignee OF
said insolvent's estate, H. A. Robbins,
one of the plaintiffs herein, was duly
elected and qualified as such assignee.
The Clerk of the Superior Court, IN
accordance with the requirements OF
the insolvency law, thereupon executed
and delivered to Robbins a conveyance
in writing of all the estate, real and
personal, of said insolvent.
The complaint herein alleges, and II
IS admitted, that among the assets OF
said J. 7. Cline. inSolvent, was a certain
Indebtedness or chose in action,
amounting to the sum of S299 ~,
claimed by the said j. T. Cline to be
due him from H A. Robbins individu-
ally, and said claim was not included
in the schedule of assets filed by said
j. Il. Cline with his petition to the
court to be declared and adjudged an
insolvent debtor. On the day on which
Cline was adjudged insolvent, and inn
mediately prior thereto on the SAID
day, said Cline assigned the said claim
of S299 80 against II. A. Robbins to the
defendant, j. M. Walling.
Thereafter, in the month of Septem-
ber, 1896, and subsequent to the date
of the appointment of said H. a. Rob
bins as the assignee of the estate OF
said ]. T. Cline, insolvent, the defend
ant herein commenced an action in a
Justices Court of Nevada County to
recover Judgment for said indebtedness,
or assigned claim of S299 90, from the
said H. a. Robbins personally. Said
action was commenced by complaint
filed in said court for moneys due on
an implied contract.
Robbins answered, denying the in
debtedness, and the case was tried upon
the theory that Robbins did not owe
Cline the sum assigned to Walling and
by him sued for, and judgment was
given in the said Justices Court in
favor of the said Robbins against the
said Walling. Walling thereafter took
an appeal to the Superior Court, and,
after the trial of the issues involved,
judgment upon appeal was duly made
and given in favor of said Walling, as
the assign of said claim, and against
said H a. Robbins individually, for the
sum of S23S SO and costs
It is fact that II. A Robbins,
against whom action was brought and
judgment obtained, as an individual,
by said ]. NJ Walling, is the same per-
son who is the assignee of the estate
of said insolvent, ]. T. Cline, and the
proceeding herein is brought in his ca
pacity as representative of and for
the benefit of the creditors of said in
solvent.
Subdivisions l and 2 of Section % OF
the Act for the relief of insolvent
debtors, etc, reads as follows: THE
said assignee shall have power: First
to sue in his own name and recover
all the estate, debts and things in
action belonging or due to such debtor
and no set-off or counter-claim shall be
allowed in any such suit for any debt
unless it was owing to such creditor by
such debtor at the time of the adjudi-
cation of insolvency. Second, to take
into his possession all the estate OF
such debtor except property exempted
by law from execution, whether books
vouchers, or evidence of Indebtedness
and securities belonging to the same "
Section 80 of said Act provides that
eff any debtor, being insolvent, or in
contemplation of insolvency, within one
month before the filing of a petition
by or against him, with a view to give
a preference to any creditor or person
having a claim against him. or who is
under any liability for him. procures
any part of his property to be attach
ed, SCI ueStered or seized on execution,
or makes any payment, pledge, mort
gage, assignment, transfer, sale or con-
veyance of any part of his property,
either directly or Indirectly, absolute
" or oonditionally, to any one, the per-
son receiving such payment, pledge
mortgage, assignment, transfer, sale. or
conveyance or to be benefited thereby
or by such attachment or seizure, hav-
ing reasonable cause to believe that
such debtor is insolvent, and that such
attachment, seizure, payment, pledge
mortgage, conveyance transfer, sale OF
assignment is made with a view to pre-
vent his property from coming to his
assignee in insolvency, or to prevent
the same from being distributed rat
ably among his creditors, or to defeat
the object OF, or in any way hinder
impede or delay the operation of, or to
evade any of the provisions Of this
Act, such attachment. sequeStration
SEIZURE, payment, pledge, mortgage
transfer, sale, assignment, or convey
ance IS void, and the assignee, or the
receiver. may recover the property, OF
the value thereof, as assets of such in
solvent debtor :"
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