Pacific Coast Law Journal. VOL. 2. DECEMBER 14, 1878. No. 16. Current Topics. THE case of Tully vs. Tranor, reported in this number, reaffirms the principles announced by the court in its opinion in the same case during the October term, 1877, (S. F. L. J. 113). The court granted a re-hearing, but the respondent failed to convince the court that its prior judgment was erroneous. By the decision it is declared that the amended Section 3,336 of the Civil Code, operates at the trial of an action brought for the conversion of personal property which took place after the amendment, although the conversion had occurred prior to the amendment; and that evidence of the value of the property at dates subsequent to its conversion can not be admitted. We have in hand for publication the opinion of the United States Supreme Court in The Giant Powder Co. vs. The California Powder Works, et al., appeal from the United States. Circuit Court, District of California. Fraudulent Conveyance-Presumption as to Voluntary Conveyance-Who may avoid.-As to debts existing at the time a voluntary conveyance is made, the law raises a conclusive presumption of fraud, but a subsequent creditor can only impeach such a conveyance by showing fraud in fact. A subsequent creditor may avoid a voluntary deed on the ground that it was made to defraud existing creditors; but in order to do so he must show debts still outstanding which existed when the deed alleged to be fraudulent was made. Payment by a grantor of all his debts existing at the time he makes a voluntary conveyance, repels the idea that he thereby intended to defraud his creditors. N. J. Chan., ' October, 1878. (Claflin vs. Moses, N. J. L. J.) Supreme Court of California. NOVEMBER TERM, 1878. [No. 6,332.] [Filed December 11, 1878.] LA SOCIETE FRANCAISE D'EPARGNES ET DE PREVOYANCE MUTUELLE, PETITIONER, VS. THE DISTRICT COURT OF THE FIFTEENTH JU- 1. Under the provisions of the Code of Civil Procedure (Section 939), a direct appeal from an order, made before judgment, appointing a Receiver is not allowed, nor is such an order subject to be reviewed upon an appeal from the final judgment; such an order, if in excess of the jurisdiction of the court in which it is entered, is therefore subject to review under Section 1068 of the Code of Civil Procedure. 2. The general and ordinary jurisdiction of courts of equity does not embrace the power to appoint a Receiver of the property of a corporation in aid of a suit prosecuted against the corporation by a private person, but such power, if it exist at all, must be derived from a statute conferring it upon the court. 3. Section 564 of the Code of Civil Procedure does not confer it. WALLACE, C J. It appears by the return to the writ of certiorari issued in the cause that, on the 7th of October last, Thomas J. Gallagher as plaintiff, filed in the office of the Clerk of the District Court of the Fifteenth Judicial District, in the city and county of San Francisco, a complaint (in which complaint the petitioner was the sole defendant), complaining on behalf of himself and of all others, creditors, depositors, and members of "La Societe Francaise d'Epargnes et de Prevoyance Mutuelle" who should thereafter come in and seek relief by, and, contribute to, the expenses of the action thereby instituted. In this complaint it was alleged that the defendant therein is a corporation duly incorporated under the laws of the State of California for the purpose of receiving deposits of money, preserving the same from loss, and finding secure and profitable investments therefor-its principal place of business being at the said city and county of San Francisco. That the said defendant is indebted to the plaintiff in the sum of ninety-eight thousand seven hundred and fifty dollars in gold coin of the United States, for services by the plaintiff theretofore rendered, as the attorney of the defendant at divers times between the first day of June, A. D. 1870, and the fifth day of October, A. D. 1878, in prosecuting and defending certain suits, in drawing and engrossing various instruments of writing at its request, in counseling and advising the defendant, for attendance in and about the business of the defendant, and for money paid, laid out and expended by the plaintiff at the request of the defendant in and about its suits and business; that payment therefor had been duly demanded of the defendant by the plaintiff; but that the defendant had not paid to the plaintiff the said sum or any part thereof. It was further alleged in the complaint that the plaintiff is a depositor and voting member of the said corporation defendant; that the defendant is insolvent; that the Board of Bank Commissioners proceeding under the Act of the Legislature of this State, approved March 30, 1878, had examined the affairs of the said corporation defendant, and had reported that it had not sufficient funds to pay its depositors and creditors-there being discovered to be a large deficiency in its assets, and that its liabilities were in excess of its assets some $800,000 and upwards. It was further set forth in the complaint, that under the by-laws of said corporation every depositor having $50 on deposit for six months becomes thereby a voting member of the corporation-has a vote in the election of its officers, and a vote upon any business coming before any meeting of its members; and it is further alleged, in this connection, in the complaint, "that there is great danger that designing and irresponsible men may obtain control of its affairs, and that the assets of said cor poration may be squandered to such an extent that it can pay no part of its liabilities." It is further alleged in the complaint that by certain by-laws of the corporation, adopted in the year 1860, it is provided that no voluntary liquidation of its affairs can take place unless desired by a majority of its members representing three-fourths in amount of the deposits; and it is averred, that in point of fact, members representing more than one-half of the deposits are resident beyond the limits of the United States, and principally reside in the Republic of France. It is further set forth in the complaint that through the improper conduct of a late manager of said corporation, upwards of seven hundred thousand dollars had been paid out to depositors after the said deficiency of eight hundred thousand dollars had occurred. It is further averred in the complaint that under the existing by-laws of the corporation, it is provided that its depositors shall be paid on demand from its first disposable funds, and that such demands are registered and paid pursuant to the order in which they have been presented; that, in point of fact, unpaid demands of this character are now registered upon the books of the corporation to the amount of upwards of nine hundred thousand dollars; "that there is great danger that unless said corporation and its officers are restrained from paying these amounts, and a Receiver appointed herein, the remaining creditors and depositors will suffer great and irreparable injury, because of said deficiency of eight hundred thousand dollars," and that by reason of the said existing deficiency, the depositors who have been paid, have in fact been overpaid, and that the holders of the registered demands will, under the operation of the by-laws referred to, also be preferred and overpaid, to the great loss and damage of the creditors, and of those of the unpaid depositors who have not registered their demands for repayment. The prayer of the complaint is that the plaintiff' have judgment against the defendant for the sum of ninety-eight thousand seven hundred and fifty dollars and costs of suit; that said corporation be declared insolvent and that an injunction be issued restraining the managers of said corporation, their agents and servants, from paying out the funds thereof, or in any way interfering with the business thereof, and that said corporation be dissolved; that a Receiver be appointed to take charge of the business of said corporation, to wind up the affairs thereof, to take possession of the books, papers, property, evidences of indebtedness and all the assets thereof; to collect all debts due said corporation; to pay all legal claims against the same; to employ all needed accountants, clerks, servants and attorneys, and generally do all and everything necessary to protect the rights of the creditors and depositors of said corporation, and "for such other and further relief as may be just." Immediately upon filing the complaint the following order was made and entered upon the minutes of the court: On filing the complaint herein, and good cause being shown therefor, it is ordered that Frederick F. Low be, and he is, hereby appointed Receiver, as prayed for in said complaint, on filing a bond therein in the sum of $225,000. SAMUEL H. DWINELLE, District Judge. October 7, 1878. Subsequently, and on the same day, the following order was made by the Judge of the District Court of the Fif teenth Judicial District, and entered upon the minutes of the court: "Whereas, an order has been made in the foregoing action, appointing Frederick F. Low Receiver in the foregoing action, as prayed for in the complaint herein, on filing a bond in the sum of $225,000; and whereas, said Frederick F. Low has filed a bond in the said sum of $225,000, with good and sufficient sureties, which bond has been duly approved by me. Now, therefore, it is ordered that said Frederick F. Low be, and he is, hereby appointed the Receiver to take charge of the affairs of said corporation, to collect all the money due the same, to pay all legal claims against said corporation, to take possession of all books, accounts, papers, property, evidence of indebtedness, |