In re Harris

Belcher, C. C. The material facts of this case are as follows: On the eighteenth day of May, 1883, certain creditors of James H. Harris fibd in the superior court of Monterey County a petition, asking that he be adjudged an insolvent. The petition alleged, among other things, “that the respondent has committed an act of insolvency, in that he did, heretofore, to wit, on or about the thirtieth day of March, 1883, being insolvent, and in contemplation of insolvency, .... make a payment and transfer of property, consisting of money, to the amount of about one thousand dollars, then and there belonging to said respondent, unto one Charles Harris, brother to said respondent.” Harris filed an answer to the petition, in which he denied “that on the thirtieth day of March, 1883, or at any other time, he, the said Harris, made a payment of one thousand dollars, or any greater sum than five hundred dollars, to Charles Harris.”

The court made an order adjudging Harris to be an insolvent debtor, and directing the sheriff of the county to take possession of all his estate, real and personal, [352]except such as was by law exempt from execution, and of all his deeds, vouchers, books of account, and papers, and to keep the same safely until the appointment of an assignee. The court also by its order appointed a time and place for the creditors to meet and prove their debts and choose one or more assignees of the estate. Due notice of this order was published, but át the time and place appointed none of the creditors appeared. Thereupon the court made an order appointing one Graves assignee of the estate, and fixing the amount of his bond, but he never accepted the place or qualified, and no assignee was ever thereafter appointed.

Subsequently, and more than three months after the adjudication of insolvency, Harris applied to the-court for a discharge from his debts. Three of his creditors opposed his discharge, and filed specifications, in writing, of the grounds of their opposition. One of the specifications was, in substance, that on or about the 30th of March, 1883, Harris made a fraudulent payment of one-thousand dollars to one Charles Harris, who was then his creditor, and that Harris was then insolvent and in contemplation of insolvency, and made the payment for the purpose of perferring Charles Harris, and preventing the money from going into the hands of an assignee and being distributed', under the insolvent act, in satisfaction of his debts'. By his answer Harris denied that he paid Charles Harris the sum of one thousand "dollars, or any sum of money whatever, on the 30th day of March, 1883, or that he ever made any payment to him fraudulently, or in contemplation of insolvency, or for the purpose of preferring him as a creditor, or for the purpose of preventing his property from going into the hands of an assignee and being distributed, under the insolvent act, in satisfaction of his debts, but averred that on the 10th day of March, 1883, Charles Harris was his creditor for the sum of five hundred dollars, and no more, and was about to leave the state; that on that day