Ohleyer v. Bunce

Morrison, C. J. Plaintiff sues as the assignee of Jonas Marcuse, and alleges in his complaint that on the 14th' day of January, 1882, certain creditors of Marcuse filed a petition in the Superior Court of Sutter County, wherein they averred that Marcuse has made a fraudulent sale of a certain stock of merchandise in contemplation of insolvency, all of said creditors then and there being creditors of Marcuse in the aggregate amount of five thousand and twenty-five dollars.

' That on the 26th day of January, 1882, said Marcuse was by the order of the Superior Court adjudged an insolvent debtor [545]at the date of said order, and at the time of filing the petition.

That afterwards, to wit, on the 13th day of March, 1882, the plaintiff George Ohleyer was, by an order of the court, duly appointed assignee of said insolvent debtor; that on the 20th day of the same month he duly qualified as such assignee, and received in due form of law an assignment of the estate of Marcuse.

That on the 31st of December, 1881, Jonas Marcuse was insolvent, and in contemplation of insolvency, and within one month prior to the filing of the petition by the creditors of Marcuse, he, the said Marcuse, then and there being insolvent and unable to pay his debts, and in contemplation of insolvency, did make an assignment, transfer, and conveyance to the defendant Bunce of the aforesaid stock of goods, wares, and merchandise, with a view to give said defendant a preference, and to pay him before and in preference to all other creditors of him, the said Marcuse, and in particular before and in preference to these petitioning creditors, and also with a view to prevent the assets of the insolvent debtor from coming to the possession of the assignee, and of being ratably distributed among the creditors of said Marcuse, thereby to hinder, impede, and delay, and also to defeat the object of the act of the legislature of the State of California, entitled “an act for the relief of insolvent debtors ” etc., approved April 16, 1880.

The complaint contains the further averment that the defendant received and accepted said assignment, transfer, and conveyance with reasonable cause to believe that Jonas Marcuse was insolvent, and that such conveyance was made with a view to prevent the property so conveyed from coming into the hands of the assignee in insolvency, and to prevent the same from being distributed ratably among the creditors of the insolvent debtor, and with the intent to defeat the object, and to impede and prevent the due operation of the aforesaid insolvent act.