notice, and order are necessary; and as no provision is made for sale at public auction other than as provided in section twenty-one, it would seem that the assignee may sell at public auction upon his own volition, "and," also, as "ordered by the court;" but as section twenty-six provides how certain perishable and other property may be sold; and as there is no good reason why an assignee should have authority to sell, without an order, property not perishable, etc., and should be required to obtain an order to sell perishable property, it seems, considering the Act as a whole, and applying strict rules in construing it, that the assignee has no authority to sell any property of the estate without an order of court. Those who take the opposite view will find support in the provisions of the national law respecting the authority of assignees.

Service by Publication.-Section ten provides that an alleged involuntary insolvent may be served with notice of proceedings as is provided by law for the service of summons in civil actions; and if a debtor cannot be found or his place of abode ascertained, service shall be made by publication. Cases frequently occur where a party can not be found, but whose place of abode is well known; and in such cases it will be difficult to perfect service without he is personally served out of the state, which would be equivalent to publication. One may not be able to find a debtor, but his place of abode may be known to be in Afghanistan.

Actions Pending.-Section eighteen makes provision for the substitution of the assignee as plaintiff in all actions prosecuted by the debtor, but no provision is made for defenses by the assignee. In the national law there is a provision for defenses by the assignee of pending actions, which was ex industria omitted from the California law, apparently showing that the legislature intentionally denied the assignee authority to defend pending actions against the insolvent. It will be also noticed that the assignee is limited to the right to be substituted in pending actions for the recovery of " a debt or other thing." If " damages" are not classified as things," then the assignee can not be substituted in actions to recover damages, unless authority of substitution is found in the provisions of the law outside of this Act.

Notice by Mail.-Under section thirty-four provision is made for notice to creditors by the assignee that he has filed his account, but no provision is made for the number of days notice creditors shall receive of the intended application for his dis

charge; therefore, it seems that a reasonable time must elapse between deposit of the notice in the post-office and the day upon which application will be made, which time will be long or short, as the creditors reside near to or remote from the place where the court is held; also the facility for communication by mail will be considered.

Corporations under the Law.-The Act is expressly made applicable to corporations; but as foreign corporations are necessarily non-residents, it will not apply to them. The legislature evidently intended that it should apply to all corporations; commercial, speculative, mining, benevolent, religious, and fraternal. The national law was only applicable to "moneyed, business, commercial corporations, and joint stock companies:” p. 53, post. The wording of the national law and the California Act is nearly identical, except the last has no words limiting its application; therefore, it is not difficult to understand what the legislature intended.

Examination of Debtor.-Section forty-seven permits the examination upon oath of a debtor before or after adjudication in insolvency. In cases of voluntary insolvency, the adjudication is not necessarily made immediately upon the filing of his petition by the debtor; and when application is made to the judge for an order adjudicating the petitioner an insolvent debtor, the judge may then examine him, or may permit a creditor to do so, and in proper cases the court may refuse to adjudicate the petitioner an insolvent debtor. The courts may, by a general rule or special order, require notice of the filing of the petition to be given to the creditors, so that they may have an opportunity to contest the application. In involuntary proceedings there will be no difficulty in such examinations, as the adjudication is not made until the fact of insolvency is tried and determined against, or until the debtor defaults. The national law, page 71, post, is nearly identical, except the California statute contains the words "before or after adjudication in insolvency," thereby indicating very clearly the legislative intent.

Amendments of Petition and Discharge of Debtor.Section eight allows amendments to the creditor's petition in involuntary proceedings, but no express authority is given to amend a debtor's petition; nor is there any clause making the provisions of the Code of Civil Procedure applicable, except in the special cases mentioned in sections 10, 11, 24, 31, 47, 50, 60, 63, 64, and 67. Section 5020 of the national law is as

follows: "Every bankrupt shall be at liberty, from time to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall conform to the facts." This provision, except as above, is entirely omitted; which seems to exclude the right to amend in every case.

It is reasonable to suppose that authority to amend his petition was not given to the debtor, because it is provided in section fifty-three that his discharge shall be from all claims, debts, liabilities, and demands, set forth in his schedule, or which were or might have been proved against his estate." Also under section fifty-one, he is discharged from all provable claims. As all debts are provable, whether described in, or omitted from, the schedule, authority to amend is not of great importance to the debtor.

Sheriff to Take Possession of Debtor's Property.-Under the provisions of section six the sheriff takes possession of all the property of the debtor in voluntary proceedings as soon as the petition is filed, and it will be his duty to deliver it to the assignee appointed by the court or the creditors, at the time the clerk of the court makes his assignment as provided in section seventeen.

Sheriff to Prepare Schedule.-Section fourteen, so far as applicable to the Sheriff, is the author's pons asinorum. Why should the Sheriff prepare the schedule in any event? Why should he prepare the schedule after an assignee has been appointed? There is no provision making the Sheriff ex officio assignee of insolvent debtor's estate; therefore it is reasonable to suppose that the word Sheriff was inserted in this section by mistake.

Assignee, Who may Vote for and Be.-Section 5035 of the national law provided that no person who has received any preference contrary to the provisions of the Act shall vote for or be eligible as assignee. This provision did not meet with the approval of the legislature, and therefore there is no such, or any, inhibition in the California Act. Section six of that Act provides for the election of one or more assignees; but section fifteen, which expressly governs the subject, provides that at a meeting of creditors, in open court, they shall proceed to the election of one assignee. Here is a direct conflict between the order of court calling on the creditors to elect, and authority/ to elect expressly given. As the Act as a whole treats of the assignee in the singular, the authority to elect more than

one is extremely doubtful, notwithstanding the provisions of section 62.

Pending Cases.-This act does not affect any case in insolvency instituted and pending in any court prior to the day when this Act takes effect. A case is pending when a petition is filed.

THE

INSOLVENCY LAW

OF THE

STATE OF CALIFORNIA,

IN FORCE JUNE 16, 1880.

CHAPTER CLXXV.

AN ACT FOR THE RELIEF OF INSOLVENT DEBTORS, FOR THE PROTECTION OF CREDITORS, AND FOR THE PUNISHMENT OF FRAUDULENT DEBTORS.

Approved April 16, 1880.

The People of the State of California, represented in Senate and Assembly, do enact as follows:

SECTION 1. Every insolvent debtor may, upon compliance with the provisions of this Act, be discharged from his debts and liabilities. This Act shall be known and may be cited as the Insolvent Act of eighteen hundred and eighty.