Tibbets v. G. Cohn & Co.

Temple, J. This action was brought to recover the value of certain property alleged to have been transferred to defendants within one month before the com[366]mencement of proceedings in insolvency, in violation of the Insolvency Act. In the complaint it is averred that on the nineteenth day of May, 1892, one Charles W. Pick, being insolvent, filed his petition alleging.his insolvency, and praying to be discharged from his liabilities; that such proceedings were had that plaintiff was, on August 24, 1892, appointed receiver of the estate of said insolvent pending the election of an assignee. Facts are then alleged tending to show that within one month before the commencement of said proceedings the defendants, who were creditors of the insolvent, received a transfer of all the available assets of the insolvent, in payment of defendant’s demand against the insolvent, and that Pick and the defendants well knew of the insolvency of Pick, and intended by said transfer thereby to prevent the property from coming into the possession of the assignee, etc.

Before answering the defendants demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action. One of the defendants, G. Cohn, then answered, and the case was tried before a jury, which rendered a verdict for the plaintiff, and the defendants appeal upon the judgment-roll without a bill of exceptions.

In 1891 section 63 of the Insolvent Act was repealed (Stat. 1891, p. 511), and section 6 amended so as to provide that the court shall make an order appointing the sheriff a receiver, to take charge and .possession of all estate, etc., of the insolvent, and to keep and care for and dispose of the same until the appointment of an assignee, and that his powers shall in all respects be regulated by the general laws of the state applicable to receivers. Section 568 of the Code of Civil Procedure, provides that a receiver has power, under control of the court, to bring and defend actions in his own name, to take and keep possession of the property, to receive ren ts, collect debts, to compound for and compromise the same, to make transfers, and to do such acts respecting the property as the court may direct.

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